SZBPD v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1253

FEDERAL COURT OF AUSTRALIA

SZBPD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1253

Federal Court of Australia Act 1976 (Cth) s 25(1A)

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601 cited
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 cited

SZBPD v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
NSD 799 OF 2005

HELY J
2 SEPTEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 799 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZBPD APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	2 SEPTEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed with 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 799 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	HELY J
DATE:	2 SEPTEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of Barnes FM in which her Honour dismissed the appellant’s application for judicial review of the decision of the Refugee Review Tribunal (‘the RRT’) which affirmed the decision of the Minister’s delegate not to grant a protection visa to the appellant. By direction of the Chief Justice given pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth) the appellate jurisdiction of the Court in relation to the appeal is to be exercised by a single judge.

2. The appellant is a citizen of India.  He is an Indian Muslim Tamil from the Tamil Nadu province in India.  He claimed to fear persecution because of his religion and as a result of his imputed political activity.  He claimed that he escaped India in September 2001 to avoid being arrested under the Prevention of Terrorism Act.  The RRT was not satisfied that the appellant’s claims had any credibility or veracity.  The RRT took the view that the appellant’s evidence was so inconsistent and contradictory, vague and generalised, that it was unable to accept that the appellant was involved in any of the incidents in which he claimed to have been a participant.

3. It was for the RRT to decide whether or not it accepted the appellant’s claims and the making of adverse findings as to credibility is a function of the primary decision-maker rather than of the Court, see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 67. Although the appellant claimed that he escaped from India, the RRT found that he was able to leave India without difficulties or incident travelling on a genuine Indian passport issued in his own name.

4. The RRT was satisfied as a result of independent country information that no one of concern to the authorities and for whom an arrest warrant was in force would be able to leave India either undetected or by bribery.  The RRT regarded the circumstances of the appellant’s departure from India as reinforcement of its conclusion that the appellant’s claims were unconvincing.

5. When the matter came before the Federal Magistrates Court, her Honour found that:

   (a)the findings of fact made by the RRT were open on the material before it;

   (b)the RRT considered the appellant’s claims based on religion and political opinion and rejected them on the basis of his lack of credibility;

   (c)there was nothing in the material before the Court to establish:

   (i)actual bias;

   (ii)apprehended bias;

   (iii)denial of procedural fairness; or

   (iv)that there was any information that should have been brought to the appellant’s attention by the RRT either pursuant to s 424A of the Migration Act1958 (Cth) (‘the Act’), or pursuant to any natural justice obligation;

   (d)the factual basis for an assertion that the case was similar to Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601 (‘Muin’ and ‘Lie’) was simply not established on the material before the Court;

   (e)there was not anything to support the unparticularised claim in the written submissions that the RRT ignored or failed to consider the appellant’s claims and mixed up irrelevant issues;

   (f)no jurisdictional error was established in the reasons or procedures of the RRT.

6. The Notice of Appeal to this Court does not disclose any recognisable ground of appeal from the decision of Barnes FM except, perhaps, for the assertion that the present case ‘is very much similar’ to the High Court’s decision in Muin and Lie.  There is no such similarity and Barnes FM correctly held that the factual basis for an assertion that the case is similar to Muin and Lie had not been established on the material before the Court.

7. The appellant lodged a document styled ‘Applicant Written Submission’ with the Court on 24 August 2005.  I do not propose to endeavour to summarise the contents of that document.  It is sufficient for me to say that there is nothing in the  document which establishes any error on the part of Barnes FM.  It is clear, as the document asserts, that Barnes FM did not find any error of law on the part of the RRT and it may also be accepted, as the document asserts, that Barnes FM’s judgment is not acceptable to the appellant, but neither of these matters indicate any error on the part of Barnes FM.

8. The document impermissibly invites a merits review of the RRT’s decision and asserts that the RRT ignored relevant evidence, including contradicting independent evidence although there is no account of what that evidence is.  The document asserts that this indicates actual bias on the part of the RRT but it is impossible to come to a conclusion that the RRT was actually biased on a reading of its reasons for decision.  Reading the RRT’s decision leaves one with the impression that it conscientiously set about discharging the task imposed upon it by the statute.  There is no substance in the bias complaint.

9. As the appellant has not established any error on the part of Barnes FM in coming to her decision, the appeal is dismissed with costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:             7 September 2005

The appellant appeared in person
Counsel for the Respondent:	Mr A McInerney
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	2 September 2005
Date of Judgment:	2 September 2005