SZALL v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 984

FEDERAL COURT OF AUSTRALIA

SZALL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 984

SZALL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 811 OF 2004

GYLES J
20 JULY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 811 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZALL APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	20 JULY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The appeal is dismissed. 

2.   The appellant is to pay the costs of the respondent.

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	NSD 811 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	GYLES J
DATE:	20 JULY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of a Federal Magistrate, who dismissed an application by the appellant for judicial review of a decision of the Refugee Review Tribunal, which had confirmed a decision of the delegate of the Minister to refuse to grant a protection visa to the appellant.

2. The appellant is a citizen of Nepal who arrived in Australia on a business visa in March of 2000.  His claim to persecution was essentially on the basis of political opinion by reason of his membership of and activities in support of the Maoist Party. 

3. The notice of appeal to the Court from the decision of the Magistrate does not state any conventional ground of appeal.  I do not set out in full what is there written but it is apparent that there is no identification of any particular error by the learned Federal Magistrate giving judgment in this case.  When the matter was fixed for hearing, I informed the appellant that it was unlikely that his appeal could succeed as it was then framed.  He did not have the benefit of the interpreter.  I judged he did understand some English.  Nonetheless, he is present today and I have heard what he has had to say in support of the appeal, albeit the notice of appeal is still not satisfactory.

4. What he has said today confirms what appears from the contents of the grounds of appeal and the reasons of the learned Federal Magistrate, namely that the grievance which the appellant has is his conviction that the Tribunal was not able to reject his claim simply because of his lack of proof.  He claims a strong view that if he returns to Nepal, because of his activities and membership of the activities of the Maoist Party he will be at serious risk. 

5. As I have endeavoured to explain to the appellant, neither the learned Magistrate nor this Court is able to substitute a decision for that of the Tribunal.  The learned Federal Magistrate, in his reasons, examined the decision of the Tribunal in the light of the complaints that had been made orally and in writing to his Honour, and held that the decision of the Tribunal was as to factual matters which were within the power of the Tribunal to make.  His Honour did not find any error, let alone jurisdictional error, in the way the Tribunal came to its view.

6. The appellant has not been able to point to any particular error of the Magistrate, and I can detect none upon my reading of his Honour’s judgment.  It, therefore, follows that the appeal is dismissed.  The appellant is to pay the costs of the respondent.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:            30 July 2004

Counsel for the Appellant:	The Appellant appeared in person
Solicitor for the Respondent:	A Markus of Australian Government Solicitor
Date of Hearing:	20 July 2004
Date of Judgment:	20 July 2004