SZBNJ v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1387

FEDERAL COURT OF AUSTRALIA

SZBNJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1387

SZBNJ V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N473 OF 2005

BENNETT J
14 SEPTEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 473 OF 2005

BETWEEN:	SZBNJ APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT
REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGE:	BENNETT J
DATE OF ORDER:	14 SEPTEMBER 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 473 OF 2005

BETWEEN:	SZBNJ APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT
REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGE:	BENNETT J
DATE:	14 SEPTEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is an Indian national who claimed that he joined India’s Congress Party in 1995-1996 and that his efforts with that Party led them to an election victory.  He claims that he was held in such high regard that opposition forces pursued him for three years to join them.  He says that when he refused, he was attacked and that he moved to another city but he was followed and assaulted.

2. By letter dated 9 July 2003, the appellant was informed that the Refugee Review Tribunal (‘the Tribunal’) was unable to make a decision on the information before it and he was invited to attend a hearing on 12 August 2003 to give oral evidence in support of his claims.  However, no reply was received to that invitation and the letter was not returned unclaimed.  The appellant did not appear at the hearing on the scheduled date and the Tribunal made a decision.  There is no suggestion that the Tribunal did not follow the relevant statutory procedures.

3. When Federal Magistrate Barnes considered the matter on appeal, her Honour found that the Tribunal's decision to proceed to make a decision on the review without taking any further action was permitted by section 426A of the Migration Act 1958 (Cth) (‘the Act’). There is no appeal based upon this aspect of her Honour's reasons and it does not seem to me that her Honour was in error in that regard.

4. In his application to the Tribunal the appellant referred to his departmental file number and inserted that number.  He also said as part of the grounds that he had a well-founded fear of persecution ‘based on my documents forwarded with my application.’ Those documents therefore came within section 424A(3)(b) of the Act.

5. The Tribunal considered the evidence before it, which included a consideration of a document that had been submitted by the appellant in support of his visa application. The Tribunal gave reasons and concluded that it was unable to accept the veracity of his claims. In coming to that conclusion, the Tribunal also relied upon country information that came within section 424A(3)(a) of the Act. The Tribunal found that the appellant's claim was not plausible.

6. In particular, the Tribunal noted that the appellant's name was not mentioned in the independent country information and said that had the appellant attended the hearing it would have questioned him about his activities, including his political activities.  The Tribunal said that without such further information from the appellant it was unable to accept that he had a profile such as to bring him to the adverse attention of the opposition parties as he had claimed.

7. The appellant asserted six general and unparticularised grounds of review in his amended application before her Honour.  Her Honour dealt with each of those grounds and I can see no error in her Honour's reasons.

   Notice of Appeal

8. In his amended notice of appeal the appellant raises the following three grounds;

   1.Tribunal decision was base on general information available with them.  They have overlooked point 5.8.14/15 of Independent evidence The UK Home Office Country Assessment India 2001 in their decision They have not consider how much individuals Muslim are suffering in spite of the evidence they have.

   2.That there were no evidence or the other material to justify the making of the decision.

   3.That procedure that were required by law to be observed in connection with making of the decision were not observed.’

   (Errors Included)

9. The first thing to notice is that none of those grounds of appeal relate to the decision of Federal Magistrate Barnes.  To the extent that grounds 2 and 3 might relate to that decision, there were no particulars to suggest that they do and I assume that they relate to the Tribunal decision.

10. The appellant appeared before me in person assisted by an interpreter.  When asked to elaborate on the grounds of appeal he was unable or declined to do so.  The appellant said he relied upon the written notice of appeal.

11. As to the first ground, the Tribunal specifically referred to the document there mentioned in its decision.  To the extent that that ground is saying that the Tribunal overlooked country information, the ground is misconceived.  The Tribunal's decision was based upon its inability to be satisfied of the veracity of the appellant's claims.

12. Ground one also asserts that the Tribunal failed to consider the fact that the appellant was a Muslim.  As I read the Tribunal's decision and the materials submitted to the Tribunal, his claim was made on the grounds of political activity and not religious belief.  I asked the appellant whether he could point to any part of his claim which referred to a fear of persecution on the grounds of religious belief and he was unable to do so.  To the extent that this ground is asserting a failure on the part of the Tribunal to consider a claim made by the appellant, I find that no such claim was made.

13. Ground two is unparticularised.  There was evidence and material referred to by the Tribunal upon it relied and the Tribunal's decision was open to it on the basis of that material. 

14. The third ground is also unparticularised.  The content of the appellant's application for review precludes an argument that the cases of SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 and Al Shamry v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 110 FCR 27 mean that there has been a failure to comply with section 424A(1) of the Act.

15. No other failure of procedure has been identified. As the Federal Magistrate said in her reasons:

    ‘It is for the appellant to advance his case and for the Tribunal to decide whether it is made out.  There was no obligation on the Tribunal in the circumstances of this case to make further inquiries or to prompt elaboration by the appellant which he chose not to embark on.’

16. As I have said, no error was apparent in the decision of the Federal Magistrate and none has been identified by the appellant.  The appellant has also failed to establish any jurisdictional error by the Tribunal.  It follows that the appeal must be dismissed.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:            14 September 2005

The Appellant appeared in person
Counsel for the Respondent:	A Carter
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	14 September 2005
Date of Judgment:	14 September 2005