SZAYH v Minister for Immigration and Multicultural and Indigenous Affairs
[2005] FCA 4
•24 JANUARY 2005
FEDERAL COURT OF AUSTRALIA
SZAYH v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 4MIGRATION – no point of principle
Migration Act 1958 (Cth)
SZAYH v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
NSD 1706 OF 2004MOORE J
24 JANUARY 2005
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1706 OF 2004
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZAYH
APPELLANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
MOORE J
DATE OF ORDER:
24 JANUARY 2005
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The appellant pay the respondent's 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
NSD 1706 OF 2004
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZAYH
APPELLANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
MOORE J
DATE:
24 JANUARY 2005
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal against a decision of a Federal Magistrate dismissing an application under s 39B of the Judiciary Act 1903 (Cth) (seeking constitutional writs) concerning a decision of the Refugee Review Tribunal ("the Tribunal"). The appellant lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs on 26 April 2002. A delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") refused that application on 24 May 2002. The appellant sought review of that decision and, on 20 May 2003, the Tribunal affirmed the decision of the delegate to not grant the protection visa. The appellant sought judicial review of that decision. On 5 November 2004, a Federal Magistrate dismissed that application.
Background
The following are the appellant's claims as summarised by the Tribunal in its reasons for decision. The appellant is a national of India from the state of Tamil Nadu and a Muslim. He claims to fear persecution for the Convention reason of "political opinion". The appellant was a supporter, but not a member, of the political party All India Anna Dravida Munnetra Kazhagam ("AIADMK"), the main opponent to the Dravida Munnetra Kazhagam ("DMK") political party. He worked for the AIADMK candidate in 1988. In 1991, he and his family were affected by inter-ethnic violence. In 2001, he contested a state election as an independent on the political platform of "equality for all Tamils" and intended to start a progressive party. The secretary of the DMK, which had at various times governed the state of Tamil Nadu, threatened him and his family. The substance of that threat was that he was not to nominate for the elections or else he and his family would be "wiped out". He made a complaint to the police about the threat, and was subsequently threatened again by the secretary of the DMK. The DMK were still angry at him for siphoning votes from them.
Another aspiring candidate in the 2001 elections, who was barred from nominating due to his alleged involvement in the murder of a DMK figure, attempted to have the 2001 election results declared null and void and named the appellant in the petition to the court as an adversary. The appellant fears that frustrated candidate will carry out a political vendetta against him in the form of false charges.
He fears returning to India because he would run the risk of being arrested and detained under the Terrorist and Disruptive Activities (Prevention) Act and fears serious human rights abuses, torture and persecution due to present animosity against minority Muslims perceived as radicals. While he left India on a valid passport, he needed to pay money at the various security checks as his name was on a police "terrorist" black list.
The decision of the Tribunal
The Tribunal accepted the appellant was a national of India and was a long-term resident of Tamil Nadu. The Tribunal accepted the appellant's passport was genuine, concluded that the appellant had been able to enter and depart India legally in 2002 and was at large in society without being impeded by the authorities, and found that he was not being sought by the authorities in 2002 for any reason claimed by the appellant. The Tribunal rejected the claim that the authorities in India wanted the appellant because they perceived him to be a terrorist, a Muslim radical, or an enemy of the DMK or the individual who had unsuccessfully sought to be a candidate in the 2001 election and who had challenged the election. Further, the Tribunal noted the independence of the courts in India and considered that were the appellant to be wrongly accused of being a terrorist, a Muslim radical or an enemy of the DMK, he could clear his name through the courts.
With apparent hesitation the Tribunal assessed the appellant's claims on the basis that he had been an independent candidate in the 2001 elections. The Tribunal found that the appellant claimed only hypothetical fears and that he was unable to "cite" evidence supporting a well-founded fear of persecution. In relation to the threats, the Tribunal found they were either empty or short-lived. The Tribunal further noted that after the 2001 elections the appellant's life returned to normal. The Tribunal rejected the appellant's claim that he hid from the ruling party in his state and fled India. The Tribunal found that he left India in his 'own good time and at his own leisure, … greatly exaggerated the situation he left behind' and that there was no evidence to suggest the appellant faces any further threat to himself or his family were he to return.
The Tribunal rejected the appellant's application for a protection visa and affirmed the decision of the Minister.
The decision of the Federal Magistrate
Before the Federal Magistrate, the ground for review pressed by the appellant was that the Tribunal denied the appellant procedural fairness, was biased and made its decision in bad faith. The appellant also challenged findings of fact made by the Tribunal. The appellant claimed that the Tribunal did not take into account the court case against the appellant in India, mixed up facts, ignored or concentrated on a particular fact, 'denied the evidentiary proof' of his claim and that the decision of the Tribunal did not reflect the material facts of his claims.
The Federal Magistrate found that the appellant's claim of political candidacy in a state election in May 2001 and documents relating to this claim were taken into account by the Tribunal and noted that the Tribunal accepted the appellant was an independent candidate in the May 2001 state elections and had been threatened by a political opponent during the elections.
The Federal Magistrate noted the Tribunal considered the appellant's claims about what happened after the elections and found that it was open to the Tribunal to reject the claims made by the appellant as false and there was no procedural unfairness.
The appellant provided the Federal Magistrate with photographs obtained after the Tribunal's decision, purportedly showing his family as victims of torture and submissions concerning the appellant's health after the Tribunal handed down its decision. The Federal Magistrate considered that the photographs and the appellant's medical condition had no bearing on the validity of the Tribunal's decision.
The appellant raised issues concerning legal assistance he obtained a year before the hearing before the Federal Magistrate, in particular the fact that at the time he obtained legal advice, his legal advisor was under the impression the application would be heard the following day. In fact, the hearing was held a year later. The Federal Magistrate concluded that no legal issue arose from those issues and noted the appellant had had one year to prepare for his hearing.
The Federal Magistrate held that the decision of the Tribunal disclosed no jurisdictional error and dismissed the application.
The appeal and its disposition
In an amended notice of appeal filed in court on a December 2004, the appellant appeared to repeat some of the issues sought to be raised before the Federal Magistrate and also sought to raise an argument based on the judgment of the High Court in Muin v Refugee Review Tribunal (2002) 190 ALR 601. I use the word "appeared" because the amended notice of appeal and the written submissions filed in support of the appeal (but only provided to the Court and the solicitor acting for the Minister on the day of the hearing) were entirely unfocused and constituted a mixture of case citations, assertions of fact about past experiences and future events though both documents contained some references to matters which might, in the abstract, be viewed as grounds on which constitutional writs could be sought. However, this is not a case where the appellant has sought to raise, on appeal, a clearly articulated ground of apparent substance in addition to whatever grounds may have been raised in the original application. The Minister objects to the appellant raising, however obliquely, any ground not raised below. I agree in the circumstances that in this case the appellant should be confined to the case advanced below.
I have read the reasons for decision of the Tribunal. I have also read the reasons for judgment of the Federal Magistrate. It does not appear to me that the Federal Magistrate erred in concluding that the appellant had not demonstrated jurisdictional error on the part of the Tribunal and in rejecting the grounds advanced by the appellant. I gained the impression from its reasons that the Tribunal took a highly critical approach to at least some of the appellant's claims and the material he presented. However, in so doing, it acted within the bounds of what it is authorised to do under the Migration Act 1958 (Cth).
I dismiss the appeal with costs.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore. Associate:
Dated: 24 January 2005
The Appellant appeared in person. Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 8 December 2004, 5 January 2005 Date of Judgment: 24 January 2005
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