SZAEX v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 242

FEDERAL COURT OF AUSTRALIA

SZAEX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 242

SZAEX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 1505 OF 2003

TAMBERLIN J
SYDNEY
12 MARCH 2004

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1505 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	SZAEX APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	12 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	N1505 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

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

JUDGE:	TAMBERLIN J
DATE:	12 MARCH 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter the appellants are a husband and wife. They are citizens of India who arrived in Australia on 4 November 2001.  On 3 December 2001, they lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs.  A delegate of the Minister refused this application, and an application was made to the Refugee Review Tribunal (“the Tribunal”) for review of this decision.  On 2 January 2003, the Tribunal refused that application and affirmed the decision not to grant protection visas to the appellants.  The proceeding before me is an appeal from a decision of Federal Magistrate Raphael given on 16 September 2003, in which his Honour refused to grant an application for judicial review on the ground that a case had not been made out to demonstrate reviewable error in the decision of the Tribunal. 

   THE APPEAL

2. When the matter came on before me today, the wife of the first appellant, who I will call the second appellant, made submissions based on a note which she handed up to me, setting out a series of points. 

3. The first point was in relation to the arrest of the first appellant's father and his subsequent release.  The second appellant drew my attention to a newspaper cutting that apparently relates to this incident, and said that the Tribunal made an error in finding that the Hindu party Shiv Sena was only interested in the first appellant’s father as a matter of business rivalry.  The Tribunal considered that only vague information was provided concerning the father's business, a security firm.  It adverted to the newspaper cutting, although in a somewhat generalised way, in the course of its Reasons for Decision.  The Tribunal’s view was that Shiv Sena was interested in carrying on similar business activities, and the finding was that it had acted against the first appellant’s father only because it wished to secure financial gain, and not for any purpose of persecuting the first appellant's father.  In my view, this submission does not raise a reviewable error on the part of the Tribunal in reaching its conclusion. 

4. The other matters which were raised by the second appellant really concern questions of fact which were matters for the Tribunal and do not disclose any error of law.  The first of these was that the Tribunal formed the view that the appellants did not present a truthful account of their circumstances in India.  This is a question of credibility, and in the course of the Tribunal’s Reasons for Decision, detailed grounds are set as to why the Tribunal did not accept the appellants’ evidence, their views, or the case that they sought to establish. 

5. The second appellant said the appellants may have omitted to point to specific facts before the Tribunal because of the difficulty that her husband, the first appellant, had experienced with his memory.  I take this into account, but the critical factor is that the evidence was simply not before the Tribunal to support the specific matters that had been raised by the appellants. 

6. It is also said that the Magistrate’s Reasons for Judgment record that the Tribunal noted that the first appellant provided a considerable amount of information to support his claims, which related to social groups and religious persuasion.  The Tribunal did refer to the submission of this material, and the weight and significance to be attached to it was a matter for the Tribunal.  Again, this is a question fact, and does not disclose any error of law.  It shows that the material was before the Tribunal, but that the Tribunal did not attach overriding weight to it, and was persuaded on other grounds that the claim had not been made out.

7. The second appellant also pointed out, on behalf of both appellants, that the Tribunal told her that her husband claimed that he was arrested six months before they arrived.  Whether this occurred is again a question of fact, and in my view does not point to an error in the reasoning in the Tribunal’s decision. 

8. Counsel for the respondent pointed to an error on the part of the Tribunal in relation to the question of relocation.  The specific error was that the Tribunal said that the appellants could relocate to another city in India, even though this matter was not discussed with them.  It has been said that the Tribunal made its decision on this basis.  However, this is incorrect, as an examination of the Tribunal’s reasons indicates that the issue of relocation was one of a number of independent grounds upon which the application for review by the Tribunal was raised and refused.  An error by the Tribunal in relation to the issue of relocation does not mean that its decision, given on other, independent grounds, cannot be sustained.  I consider that this error did not play a material part in the ultimate outcome before the Tribunal, on the basis that each of the other grounds referred to in the Reasons for Decision independently stand on the findings of fact that the Tribunal made.

   CONCLUSION

9. Unfortunately in this case, the arguments that have been raised go to the function of the Tribunal in relation to matters that are entrusted to that body, and do not raise errors of law.  Since no error of law has been made out in relation to the reasons of the Tribunal, nor any operative error demonstrated in relation to the judgment of the learned Magistrate, I propose to dismiss the appeal to this court with costs.  I appreciate that the appellants may not be able to meet a costs order, but this does not mean that this is not an appropriate order in the circumstances.

10. It seems to me that this is case in which the appellants should bear in mind the provisions of section 417 of the Migration Act 1958 (Cth), which entitles them to make an application to the Minister for re-consideration. This is something they may wish to take into account in deciding what they propose to do in relation to their future.

11. The orders of the Court are that the appeal is dismissed with costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:             17 March 2004

The Appellants appeared in person with the assistance of an interpreter.
Counsel for the Respondent:	J A C Potts
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	12 March 2004
Date of Judgment:	12 March 2004