SZBYR v Minister for Immigration and Citizenship

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,Gummow,Callinan,Heydon,Crennan JJ.,Kirby J.,Hayne J.
• Judgment Date: 13 June 2007
• Neutral Citation: [2007] HCA 26,2007-0613 HCA B
• Docket Number: S3/2007
• Court: High Court
• Date: 13 June 2007

[2007] HCA 26

HIGH COURT OF AUSTRALIA

Gleeson CJ, Gummow, Kirby, Hayne Callinan, Heydon and Crennan JJ

S3/2007

Szbyr & Anor

Appellants

and

Minister For Immigration and Citizenship & Anor

Respondents

Representation

G O'L Reynolds SC with C D Jackson and M A Izzo for the appellants (instructed by Kazi & Associates)

R J Beech-Jones SC with J A C Potts for the first respondent (instructed by Clayton Utz Lawyers)

Submitting appearance for the second respondent

Migration Act 1958 (Cth), ss 36(1), 422B, 424A, 441A.

SZBYR v Minister for Immigration and Citizenship

Immigration — Refugees — The appellants were refused a visa under s 36(2) of the Migration Act 1958 (Cth) (‘the Act’) — The appellants gave a statutory declaration to the Refugee Review Tribunal (‘the Tribunal’) — The Tribunal affirmed the decision not to grant a visa partly on the basis of discrepancies between the statutory declaration and the appellants' oral evidence — Whether relief was available to the appellants.

Immigration — Refugees — s 424A of the Act, read with s 441A, requires that an applicant be given written notice of particulars of any information that would be a reason or a part of the reason for affirming a decision — Whether s 424A applied to the appellants' statutory declaration — Temporal scope of s 424A — Whether the Tribunal breached s 424A — Whether the Tribunal committed jurisdictional error — Meaning of ‘information’ — Whether ‘information’ included discrepancies or inadequacies in previously submitted evidence — Meaning of ‘reason, or a part of the reason’.

Administrative law — Constitutional writs — Certiorari and mandamus — Impact of discretionary considerations governing availability of relief — Whether relief should be denied on discretionary grounds for lack of a Convention nexus.

Words and Phrases — ‘information’, ‘reason, or a part of the reason’.

ORDER

Appeal dismissed with costs.

1 Gleeson CJ, Gummow, Callinan, Heydon AND Crennan JJ. The appellants are Indian citizens who arrived in Australia on 2 October 2002. They are husband and wife, although the facts surrounding their claim to refugee status largely concern the husband's previous marriage to a woman named Salima. After the appellants' arrival in Australia, they applied for a Protection (Class XA) Visa, which was refused by the respondent Minister's delegate on 21 November 2002 1. The Refugee Review Tribunal (‘the Tribunal’) refused the appellants' application for review of the delegate's decision. The Federal Magistrates Court rejected an application for judicial review of the Tribunal's refusal, and an appeal by the appellants to the Federal Court of Australia was dismissed.

2 The resolution of the appeal to this Court depends on two matters: first, whether the Tribunal fell into jurisdictional error; and secondly, if it did, whether relief should follow. The resolution of these issues therefore turns on the proper construction of s 424A of the Migration Act 1958 (Cth) (‘the Act’) and the application of the correct principles regarding the discretionary grant of relief. No party sought leave to re-open the question of the construction given to s 424A by the majority of this Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs 2. However, this does not obviate the need to pay careful attention to the application of s 424A to the present facts. Likewise, notwithstanding some resistance on their behalf, the appellants' case cannot escape scrutiny in the light of the discretionary considerations identified in Re Refugee Review Tribunal; Ex parte Aala 3 governing the grant of certiorari and mandamus.

The appellants' claims

3 The appellants' entitlement to a protection visa under s 36(2) of the Act depends on their being persons to whom Australia owes protection obligations, namely those who have a ‘well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’ within the meaning of Art 1A(2) of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating

to the Status of Refugees done at New York on 31 January 1967 (‘the Convention’). The appellants contend that they fear persecution in India because of their religion. The female appellant's claim is largely dependent on the male appellant's claim, pursuant to s 36(2)(b) of the Act. In the decisions below, the appellants also referred to their membership of a particular social group, although the basis of this claim was never clearly expressed, and the appellants did not pursue it in this Court

4 The appellants are Ismaili Muslims and followers of the Aga Khan. Around 1992 or 1993, the male appellant was living in Hyderabad and met a woman named Salima whose familiy were Muslims of a different sect and a higher social status. Salima's family was said to be very influential in Hyderabad. Notwithstanding her family's disapproval, Salima married the male appellant in May 1997. Thereafter, the male appellant claims to have been falsely arrested, charged by the police and imprisoned on a number of occasions between early 1997 and December 2001, each time at the corrupt instigation of Salima's family. The male appellant also claimed to have suffered other forms of harassment at the hands of Salima's family, including an assault in 1997, and he feared the future repetition of such acts. The timing and circumstances of these episodes were not entirely clear, and there were significant discrepancies between the oral evidence which the appellants gave before the Tribunal and the content of their statutory declaration made on 25 October 2002 in support of their application for a protection visa.

5 Some time around early 1999, Salima's father asked that the male appellant divorce Salima. The male appellant did so in March 1999 and thereafter in October 2000 married his present wife, the female appellant. The appellants were living in Hyderabad when they heard that Salima had committed suicide, at which point they moved to Mumbai (Bombay) in the apparent fear that the male appellant would be blamed for Salima's death. In Mumbai, the appellants claim that they were arrested for the death of Salima, gaoled for 15 days, and then released on unconditional bail. The appellants said that they were charged with murder, although the precise offence in question was not clear. The appellants claimed that the hostility of Salima's family towards them was motivated by a desire for revenge over Salima's death.

6 After their release from prison, the appellants returned to Hyderabad and lived there and in a number of other places. Then in Mumbai they obtained a visa to travel to Australia. They left India using their own passports, apparently without any difficulty despite the outstanding charges relating to Salima's death. The appellants fear that, if they are returned to India, they will be imprisoned as a result of the outstanding charge relating to Salima's death, and that they will suffer continued animus from Salima's family. While in their statutory declaration the appellants claimed to fear hostility from ‘Muslim people’ generally, there was no subsequent suggestion other than that they feared hostility from Salima's family, and from police acting at the instigation of Salima's family.

The proceedings below

7 The Minister's delegate was not satisfied that the appellants were persons to whom Australia owed protection obligations because such persecution as they feared was not for a Convention reason. The delegate concluded that the appellants' difficulties arose out of the male appellant's personal relationship with Salima and her family, which was ‘a private matter which falls outside the scope of the Convention’, and while religious differences may have been involved, the male appellant's fear arose out of a ‘personal and longstanding conflict between [him] and his ex-wife's family over their relationship’.

8 Dissatisfied with this result, the appellants applied to the Tribunal for review of the delegate's decision. The application for review was filed on 2 December 2002, and the Tribunal wrote on 10 July 2003 to invite the appellants to attend a hearing which was held on 27 August 2003. That invitation was given pursuant to s 425 of the Act. Before the hearing, the Tribunal had received various documents including the appellants' statutory declaration of 25 October 2002 in support of their application for a protection visa. At the hearing, the appellants gave oral evidence and were questioned by the Tribunal. In particular, the Tribunal explicitly drew the male appellant's attention to discrepancies between his oral evidence and his written claims in the statutory declaration, and invited him to comment. The male appellant offered no comment or explanation other than to say that his memory was poor.

9 Like the Minister's delegate, the Tribunal did not accept the appellants' claims and, in a decision dated 14 October 2003, dismissed their application for review. Fundamentally, the Tribunal was not satisfied that the appellants suffered persecution for a Convention reason. The Tribunal concluded that:

‘Taking into account all the evidence before me, I am satisfied that the [appellants] are involved, or have been involved, in a personal dispute and there is no Convention nexus. The [appellants] are not being targeted for reason of their religion, even though the claimed protagonist the father of [Salima] is not a follower of the Aga Khan. Nor are the [appellants] being targeted for reason of membership of a particular social group constituted by social status.’

The Tribunal did not consider the male appellant to be a reliable witness, and the ‘modifications and refinements between his written claims and his oral evidence’, within his oral...