SZNBM v Minister for Immigration & Citizenship [2009] FCA 836

FEDERAL COURT OF AUSTRALIA

SZNBM v Minister for Immigration & Citizenship [2009] FCA 836

SZNBM v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 328 of 2009

BESANKO J

6 AUGUST 2009

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION NSD 328 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZNBM

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: BESANKO J

DATE OF ORDER: 6 AUGUST 2009

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the first respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION NSD 328 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZNBM

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: BESANKO J

DATE: 6 AUGUST 2009

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a decision of the Federal Magistrates Court: SZNBM v Minister for Immigration & Citizenship & Anor [2009] FMCA 315. On 1 April 2009, that Court made an order that the appellant's application for constitutional writs directed to the Refugee Review Tribunal ("the Tribunal") be dismissed. 2 The appellant is a national of India and he arrived in Australia on 17 April 2008. On 6 May 2008, he made out an application for a Protection (Class XA) visa ("protection visa"). A delegate of the Minister for Immigration and Citizenship decided to refuse his application and the appellant was notified of the refusal by letter dated 25 July 2008. The appellant then applied to the Tribunal for a review of the delegate's decision. On 19 November 2008, the Tribunal decided to affirm the decision of the delegate refusing to grant a protection visa to the appellant. 3 The appellant made an application to the Federal Magistrates Court for constitutional writs directed to the Tribunal. As I have said, that application was dismissed. 4 It is necessary to summarise briefly the nature of the appellant's claim to refugee status. I can do so by reference to the Tribunal's reasons. The Tribunal described the appellant as a 32 year old man from Koduvayur, Kerala. The appellant claimed that he was born and brought up in the State of Kerala. The Communist Party first came to power in Kerala in 1957. The appellant claimed that the Communist Party interfered with the administration of educational institutions established by Christian missionaries. The appellant claimed that he was an active member of the Kerala Students' Union which was an organisation of students in Kerala and which was opposed to Communist rule. The appellant claimed that the Union was formed during the struggle against the communists. The appellant claimed that he was later elected as the office bearer of the Unit Level Committee and gradually rose to the position of Palghat District Committee Presidentship. 5 On completion of his studies, the appellant joined a democratic youth organisation called the Youth Congress. The Youth Congress led "many agitations" by organising the farmers and youth of the area. The appellant claimed that he gradually rose to the post of President, Kollengode Block Committee of Youth Congress. The appellant claimed that he was "made accused" in several cases and arrested and detained. The appellant claimed that government agencies and cell committees of the Communist Party harassed the office bearers of the Youth Congress and that the office bearers were accused in many false cases and arrested and detained in prisons. The appellant claimed that he was "made an accused" in two actions and arrested and detained. The appellant claimed that the government and the cell committees did not tolerate any democratic activity and that anyone who spoke against the government was detained and arrested. The appellant claimed that people had been harassed and detained en masse and that there were several cases of police atrocities. 6 The appellant claimed that people who oppose the Communist Party are likely to be arrested, detained and tortured and that there were several cases of suicide. The appellant claimed that he had led "agitations for democratic rights" and that he believed his "dead body will be found as a hanged one in a prison or as a drowned dead body". 7 The appellant said that he believed that if he returned to Kerala he would be imprisoned and tortured. He said that he had already been imprisoned and that it was only the media attention and assistance from prominent persons and recourse to the law that helped secure his release. The appellant claimed that several false police cases had been "booked against" him and that the authorities would not protect him if he returned to Kerala. He fears that he will be imprisoned. 8 The Tribunal conducted a hearing on the review on 29 September 2008 and another hearing on 13 October 2008. After the second hearing, the Tribunal wrote to the appellant inviting him to comment on, or respond to, information that the Tribunal considered would, subject to any comments or response he made, be the reason, or a part of the reason, for affirming the decision under review (s 424A of the Migration Act 1958 (Cth) ("the Act")). 9 The appellant was asked to respond by 13 November 2008. The appellant provided a written response on 22 October 2008 and in that response he asked for further time within which to submit certain documents. On 23 October 2008, the Tribunal wrote to the appellant advising him that it had decided not to grant him further time for providing evidence. The Tribunal went on to say that it was willing to take into account any further submissions the appellant provided until a decision was made. The appellant wrote to the Tribunal on 10 November 2008 providing further information. 10 The Tribunal member said that she accepted that the appellant was injured when he was 14 years of age in a clash between students. However, she did not accept that this was "anything other than random violence". She did not accept that the appellant was, at the age of 14 years, targeted because of his political opinion or any other Convention reason. The Tribunal member accepted that the appellant attended university and she accepted that he had some involvement in the Kerala Students' Union and the Indian Youth Congress. However, she did not accept that this involvement was at the level claimed by the appellant and she did not accept that the appellant had a political profile in Kerala which resulted in him being targeted by the Communist Party. She did not accept that he was the subject of any ongoing interest from the Indian authorities or the Communist Party. The Tribunal member said that she was not satisfied that the appellant's involvement occurred recently or that he left India as a result of that involvement. The Tribunal member said that she did not accept that the appellant was a truthful witness and she did not accept that he had given a truthful account of his experiences. The Tribunal member considered that the appellant had sought to "significantly embellish" his claims at different stages of the application process and that he had sought to place himself within specific incidents in Kerala. The Tribunal member considered that the appellant had sought to politicise ordinary events and incidents which had affected him and had sought to rely on the general political situation in Kerala in an attempt to manufacture a claim for refugee status. The Tribunal member set out in some detail her assessment of the appellant's evidence and then she expressed her conclusions as follows: "The Tribunal has not accepted the applicant's claims of detention, arrest, and false cases and does not accept that the applicant has any significant political profile that has resulted in him or any of his family members being subjected to serious harm in India. The Tribunal does not accept that mere attendance in protests or participation in politics at some level in Kerala would results [sic] in the adverse attention of the authorities and that the applicant will suffer serious harm for a Convention reason in the future. Nor does the Tribunal accept that the applicant or his family will be the subject of adverse attention from the authorities if he returns to India or that he will be the subject of adverse attention from the Communist party. The Tribunal finds that the applicant does not have a well founded fear of persecution if he returns to India now or in the reasonably foreseeable future." 11 The amended application for constitutional writs contained a number of grounds. There is a problem with the numbering in the document and, in the case of some paragraphs, more than one distinct allegation is made. In the case of other paragraphs, the allegation is so general that it is difficult to describe it as a ground of the application. Nevertheless, the federal magistrate analysed carefully each matter he understood the appellant to be raising. 12 The grounds of appeal to this Court appear to raise different challenges to the Tribunal's decision from those which were part of the appellant's application as it was presented to the Federal Magistrates Court. 13 The first ground of appeal is that the Tribunal failed to comply with s 424AA(b)(iv) of the Act. He claims that the procedure in that paragraph is a mandatory procedure. The second ground of appeal is that the Tribunal and the Federal Magistrates Court made "an error in law and jurisdictional error" relating to "relief" under s 424A of the Act. The third ground of appeal is that the Federal Magistrates Court erred in failing to find that the Tribunal did not consider "UNHCR s 4, 8, 9 and 10" and did not consider "cruelty against the humanity and therefore made error of law and jurisdictional error". 14 In his written submissions, consisting of four paragraphs, the appellant first claims that the federal magistrate erred in failing to find that the Tribunal had not addressed a key component of his claim, namely, that his life will be under threat on his return to India because of his opposition to the Communist Party. This allegation was a ground of his application to the Federal Magistrates Court. Secondly, he claims that the federal magistrate erred in failing to find that the Tribunal had not complied with "its undertaking at the hearing to give the applicant an opportunity to address the issues in a written submission". This allegation was not a ground of his application to the Federal Magistrates Court. Thirdly, he claims that the federal magistrate erred in failing to find that the Tribunal's decision was unjust and was made without taking into account "full gravity of the applicant's circumstance and consequence of the claims". In a broad sense, this was part of his application to the Federal Magistrates Court. Fourthly, he claims that the federal magistrate erred in failing to find that the Tribunal had failed to consider all the material readily available or accessible and had taken an erroneous approach to the appellant's claims and failed to address the appellant's mind to the material questions arising out of those materials. This allegation was a ground of the appellant's application to the Federal Magistrates Court. 15 I start by dealing with the matters which are raised in the notice of appeal. I do not need to consider the effect of the appellant not raising these matters before the Federal Magistrates Court because each new matter clearly fails on the merits. 16 There is no suggestion in the Tribunal's reasons that it was proceeding under s 424AA of the Act. It did not orally give to the appellant particulars of information which fell within s 424AA(a). In any event, as the first respondent submitted, a failure to comply with s 424AA does not amount to jurisdictional error. It simply means that the Tribunal is unable to take advantage of s 424A(2A): SZMCD v Minister for Immigration & Citizenship & Anor (2009) 174 FCR 415 at 430-431 [74]-[87] per Tracey and Foster JJ. 17 There are no particulars of the alleged breach of s 424A of the Act. The Tribunal sent a letter to the appellant in compliance with the provisions of that section and the appellant responded by letter dated 10 November 2008. The Tribunal complied with the provisions of s 424A. In any event, as the first respondent submitted, the reasons of the Tribunal for affirming the decision under review did not constitute information within the terms of s 424A. (See SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at 616 [18]; VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at 477.)