SZAVN v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCA 1026
•4 AUGUST 2004
FEDERAL COURT OF AUSTRALIA
SZAVN v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA [Jac1]1026
SZAVN v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
NSD 953 of 2004
LINDGREN J
4 AUGUST 2004
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 953 OF 2004
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZAVN
APPELLANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
LINDGREN J
DATE OF ORDER:
4 AUGUST 2004
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the respondent’s costs of the appeal.
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 953 OF 2004 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZAVN
APPELLANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
LINDGREN J
DATE:
4 AUGUST 2004
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The appellant appeals from a judgment of Scarlett FM in the Federal Magistrates Court of Australia delivered on 28 May 2004. The Federal Magistrate dismissed an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’). The Tribunal had, on 19 May 2004, affirmed a decision of a Delegate of the respondent Minister (respectively, ‘the Delegate’ and ‘the Minister’) not to grant a protection visa to the appellant.
The present notice of appeal states as the ‘ground’ of the appeal:
‘Reconsidering decisions of DIMIA, Refugee Review Tribunal and FM Scarlett.’
As the ‘order sought’, the notice of appeal states:
‘I am strongly disappoint the decision of DIMIA, RRT, I believe the DIMIA and RRT have not taken the proof what I have given to them. I have threat on my life. The DIMIA and RRT only have access to Internet and other Media. They really don’t know what happen in the country. I have no other way than appealing.’
On 7 July 2004 the appeal was fixed for hearing today. A direction was made that the appellant file and serve an outline of submissions on or before five clear working days prior to the hearing. The appellant has not filed an outline of submissions but has appeared on the hearing today. He says that he does not wish to make any oral submissions in support of his appeal. He says that he does not have a lawyer because he cannot afford one. The position is not that he has discussed the case with a lawyer but is not able to afford to have the lawyer represent him on the hearing. Rather, the position is that he has not discussed it with a lawyer at all. He states that with time he may be able to earn enough money to engage a lawyer. Treating what the appellant has said as an application for an adjournment, I decline it.
The position might be different if a lawyer had been engaged and some facts put before the Court to the effect that, within a further specific identifiable period of time, on the basis of a specific identified source of income, that lawyer would be paid and be prepared to appear for the appellant, but that is not this case at all.
I indicated to the parties that I would proceed to hear the matter. Accordingly, I turn now to the facts.
The appellant entered Australia on 18 February 2002. On 21 February 2002 he lodged an application for a protection (class XA) visa supported by a handwritten statement dated 20 February 2002. On 12 June 2002 the appellant supplied to the Department of Immigration and Multicultural and Indigenous Affairs a typewritten statutory declaration in support of his claim. His claim was that he had a well-founded fear of persecution for reason of political opinion.
On 4 July 2002 the Delegate refused the grant of a protection visa. On 24 July 2002 the appellant lodged with the Tribunal an application for review of the Delegate's decision. In response to the formal invitation to state why he considered himself to be a refugee, the appellant stated, ‘The available documents will be submitted later’. None were ever supplied. On 17 April 2003 the Tribunal wrote to the appellant inviting him to attend a hearing before the Tribunal which he did on 19 May 2003. He gave evidence at that hearing. On 19 May 2003 the Tribunal affirmed the Delegate's decision and that decision of the Tribunal was handed down on 12 June 2003.
On 24 June 2003 the appellant lodged the application for review in the Federal Magistrates Court of Australia and on 28 May 2004, as noted earlier, that Court dismissed the application. The appellant appeared in person. The present appeal to this Court was lodged on 17 June 2004. The Chief Justice of this Court has directed that the appeal be heard and determined by a single judge: see Federal Court of Australia Act1976 (Cth) s 25(1A).
In his application to the Federal Magistrates Court, the appellant did not identify any reason why the decision of the Tribunal was wrong. He informed that Court that he feared persecution if he returned to India, his country of nationality. He asserted to that Court that he was not involved in any criminal activity in India and was disappointed that the Tribunal had not accepted his evidence on certain matters, particularly about his membership of the Communist Party of India (Marxist Leninist) (‘the CPI(ML’) and the People's War Group (‘the PWG’).
The appellant had applied for the protection visa on the ground of a well-founded fear of persecution because of political opinion arising from, or evidenced by, his activity in the Kerala Students Union (‘the KSU’), and his membership of the CPI (ML) and of the PWG. The PWG is one of several left wing extremist political groups in India known as the "Naxalites". The Tribunal was not satisfied that the appellant had belonged to the CPI (ML) or the PWG or that he had been jailed twice for these reasons.
The Tribunal did not accept that certain documents concerning the appellant's employment as a seaman were false as he claimed them to be. There were other aspects of the appellant's claims which were not accepted by the Tribunal. The Tribunal observed that there were changes in the evidence given by the appellant at the hearing as compared with what he had said in his statutory declaration of 12 June 2002.
Importantly, the Tribunal also noted that even if the appellant's claims were accepted at face value (which they were not), they showed that he had been involved in a group which was banned in India because of its involvement in violence and other criminal activities. The Tribunal observed:
‘The arrest and prosecution of someone involved in such a group in a democratic country such as India is part of the normal operation of the law, not persecution for a convention reason.’
The learned Federal Magistrate set out the findings of the Tribunal. The appellant again claimed that documents which he had supplied with his application for the protection visa indicating his employment as a seaman from March 1997, were falsifications. The learned Federal Magistrate held that it had been open to the Tribunal to take an adverse view of the appellant's evidence.
The present notice of appeal seems to assert simply that the Delegate and the Tribunal should have accepted the claims which the appellant had made and that they gave too much weight to country information. As well, there is the assertion of a threat to the appellant's life. These matters were, however, for the Tribunal to consider and assess, and it is beside the point that the Federal Magistrate, or I, might have viewed the evidence differently (I do not imply that I would have done so).
It is plain that no jurisdictional error is shown and no error in the reasoning of the Federal Magistrates Court of Australia is demonstrated. In these circumstances, the Tribunal's decision was a ‘privative clause decision’ within s 474 of the Migration Act1958 (Cth).
The appeal should be dismissed with costs.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate:
Dated: 13 August 2004
The appellant appeared in person assisted by an interpreter.
Counsel for the Respondent: Margaret Allars Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 4 August 2004 Date of Judgment: 4 August 2004 [Jac1]
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