SZAER v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 243

FEDERAL COURT OF AUSTRALIA

SZAER v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 243

SZAER v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N1436 of 2003

TAMBERLIN J
SYDNEY
8 MARCH 2004

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1436 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	SZAER APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	8 MARCH 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The appeal is dismissed with costs.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1436 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	SZAER APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	8 MARCH 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter the appellant, a citizen of India, arrived in Australia in April 2001 on a visitor visa that had been issued in India, and was valid for three months from the date of arrival in Australia.  On 25 May he lodged an application for a protection visa, claiming that he was entitled to such a visa under the Migration Act 1958 (Cth) (“The Act”). On 18 June 2001, a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused to grant the protection visa. On 13 July 2001 the appellant applied for review of that decision.

2. The Refugee Review Tribunal (“the Tribunal”) decided on 29 December 2002 to affirm the decision not to grant a protection visa.  An application was then made to the Federal Magistrates Court for review of the decision of the Tribunal, which had been handed down on 20 January 2002. The decision of the Federal Magistrates Court was that the application be dismissed, and that the appellant pay the respondent's costs and disbursements. 

   REASONING ON APPEAL

3. The appellant now appeals to this Court from the decision of Federal Magistrate Driver.  On the hearing, the appellant relied on written submissions that had been prepared for him.  The Notice of Appeal, which was filed on 17 September 2003, simply states that his Honour failed to find denial of natural justice and procedural fairness, which I understand to be a reference to procedural unfairness on the part of the Tribunal.  It also refers to the filing of a detailed submission at a later time.

4. The appellant says that he gave the Tribunal a detailed account of how he was persecuted for his political opinion, how his own brother-in-law was killed in an explosion, and how he had changed his mind about adopting a certain path against the atrocities of the Indian government, but that he was still pursued by the police and was victimised.  He says that he enclosed a cutting from the leading paper, which proved that his brother-in-law died during the explosion.

5. In the written submission presented to this Court, the appellant raised five matters.  The first was that the Tribunal Member had taken the view that the appellant did not fall within the definition of a refugee, due to his not being able to attend the interview as a result of his illness.  The fact is that the appellant indicated to the Tribunal prior to the hearing that he would not be attending. 

6. The second matter raised by the appellant is that the Tribunal wanted some more proof, and that he had considerable difficulties obtaining more proof due to the nature of the purported offences, which is why he could not produce any documents on time.  The appellant says that this is the reason that his claims were dismissed.  He says that, being in Sydney, he was unable to get documents, because everyone he approached wanted to dissociate themselves from him, including his immediate family members.

7. The third matter raised by the appellant was that he had obtained his current passport from Chennai simply because he could not get a passport from his own state, due to his political beliefs.  He said that there is a mistake on this passport, which states that his place of birth is Chennai instead of Ongole, a different part of India.  He said that the friend who helped him to get his passport had persuaded him not to have this corrected.

8. The fourth matter raised by the appellant is that a migration agent who told him what to say in making his application for refugee status had helped him, and that he had simply signed the application without appreciating what was said or the importance of what he was saying. 

9. Finally, the appellant says that the Tribunal had given the highest weight to country information, which is information from sources other than the appellant, which he says it relied on without realising the practical realities, as the information was outdated.  He said the Tribunal should have relied on updated information while making decisions and for this reason there was an error. He says this led to bias in procedural fairness.

10. In relation to the above matter, the ground alleged is one of fact, namely, that the Tribunal made a mistake in relation to the proper state of affairs in India.  It does not in any way support a submission that there has been an error of law and it certainly does not support any contention that there was bias or lack of procedural fairness.

11. None of the matters referred to persuade me that there has been any reviewable error of law.

12. In its Reasons for Decision, the Tribunal found inconsistencies in the appellant's evidence in relation to his place of birth. It was not satisfied that he was in danger of persecution for a Convention reason, and paid regard to the fact that he had left the country on two previous occasions, and was able to re-enter without any apparent threat.  The Tribunal noted that the appellant had not appeared before it, and that it was therefore unable to explore the appellant’s responses to any questions that it may have had.  Having recognised this, the Tribunal was not satisfied that on the material before it that the appellant had made out a case to support his contention that he was a refugee within the meaning of the Convention.  The matters raised are matters of fact and degree for decision by the Tribunal and are not matters for function of this Court.

13. Having regard to the detailed Reasons for Judgment of the learned Magistrate, and also to the Reasons for Decision of the Tribunal, I am not satisfied that the reasons of either the Tribunal or his Honour disclose any error of law such that this appeal should be allowed.  Accordingly, my decision is that the appeal is dismissed with costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:            17 March 2004

The Appellant appeared in person.
Counsel for the Respondent:	Justin Smith
Solicitors for the Respondent:	Blake Dawson Waldron
Date of Hearing:	8 March 2004
Date of Judgment:	8 March 2004