SZAMK v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 783

FEDERAL COURT OF AUSTRALIA

SZAMK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 783

SZAMK v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 509 of 2004

BRANSON J
11 JUNE 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 509 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZAMK APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	11 JUNE 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay respondent’s costs of the appeal.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 509 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZAMK APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	BRANSON J
DATE:	11 JUNE 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an appeal from a judgment of the Federal Magistrates Court.  The Federal Magistrates Court dismissed an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’).  The appellant is a citizen of Nepal who arrived in Australia in October 2000 on a tourist visa.  A delegate of the respondent made a decision in May 2001 refusing to grant the appellant a visa and the Tribunal affirmed that decision.

2. The appellant’s application for a protection visa was based on his claims that he feared persecution in Nepal by reason of his political opinion.  He claimed to have joined the Maoists in the late 1990s.  He claimed to have come to the attention of the authorities with the result that an arrest warrant had been issued against him.  He claimed that he would face persecution if required to return to Nepal because the authorities had identified him as Maoist. 

3. The Tribunal did not believe the claims made by the appellant.  It did not accept that he had any involvement with the Maoists and found his answers on questioning about the Maoists to be inadequate.  The Tribunal further found that the appellant had not come to the attention of the Nepalese authorities.  It was satisfied that if a warrant had been issued for his arrest he would not have chosen to leave the country by air on his own passport.  It concluded that he would have followed the relatively easy alternative of leaving Nepal by an overland route.  The Tribunal concluded that the appellant was not a person to whom Australia owes protection obligations under the Convention on Refugees.  The learned Federal Magistrate dismissed the application for review of the decision of the Tribunal.  The reasons for decision of the Federal Magistrate reveal that in the Federal Magistrates Court the appellant simply ran his case for a protection visa again on the merits.

4. The appellant has done the same again this morning before this Court.  The merit of the appellant’s claim to be entitled to a protection visa is not a matter for determination by this Court. 

5. Because the appellant is unrepresented I have given consideration to the reasons for decision of the Tribunal as well as the reasons for judgment of the Federal Magistrate.  The decision of the Tribunal was firmly based on the adverse view it took of the appellant’s credibility.  The issue of the appellant’s credibility was a matter peculiarly within the province of the Tribunal to decide. 

6. The Federal Magistrate was not satisfied that any reviewable error had been shown to affect the decision of the Tribunal.  In my view the Federal Magistrate was right not to be so satisfied.  I am unable to identify any error affecting the decision of the Federal Magistrate.  There is no reason to think that the Tribunal acted outside its jurisdiction in affirming the decision to refuse to grant the appellant a protection visa. 

7. The appeal is dismissed with costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:            21 June 2004

Counsel for the Appellant:	The Appellant appeared in person.
Counsel for the Respondent:	J D Smith
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	11 June 2004
Date of Judgment:	11 June 2004