SZBPE v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1193

FEDERAL COURT OF AUSTRALIA

SZBPE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1193

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

Migration Act1958 (Cth) s 424A(1)

SZBPE v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
NSD 779 OF 2005

HELY J
15 AUGUST 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 779 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZBPE APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	15 AUGUST 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 779 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	HELY J
DATE:	15 AUGUST 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of Federal Magistrate Barnes dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the RRT’) which affirmed a 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 appeal is to be heard and determined before a single judge.

2. The appellant is a citizen of India.  Before the RRT the appellant claimed a well-founded fear of persecution in India because of his political beliefs.  The appellant claimed that he was an active member of the Majilis-E-Ithad-Ul-Musleemin Party (‘the MIM Party’) in India.  He claimed that he had been threatened and beaten by members of rival parties and that his complaints to the police had been ignored.  According to the appellant, he was accused of involvement in the Gujarat train tragedy in early 2002 which led him to go underground to save his life from BJP and RSS extremists as well as other non-Muslim parties of the state in which he resided.

3. The RRT advised the appellant in writing that it was unable to make a decision favourable to the appellant on the basis of the materials which were before it and invited the appellant to give oral evidence and present arguments at a hearing to which he was invited to attend.  The appellant elected not to accept this invitation and consented to the RRT proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it.

4. The RRT therefore proceeded to determine the application on the evidence available to the RRT which it considered to be vague and lacking in detail.  The RRT said that it was unable to be satisfied that:

   -the appellant was any more than an ordinary member of the MIM Party;

   -          the appellant would be persecuted for his membership of the MIM Party;

   -the appellant had been beaten by and received death threats from his political opponents; and

   -the appellant had been accused of involvement in the Gujarat train tragedy.

   The RRT therefore concluded that the appellant did not have a well-founded fear of persecution for his political or religious views or for any other Convention reason. 

5. In the Federal Magistrates Court the appellant relied upon the grounds as specified in his amended application which were extended and expanded upon in written submissions which were lodged with that Court.  The essential thrust of the appellant’s complaint was that the proceedings before the RRT exhibited a lack of procedural fairness or a denial of natural justice.  The Federal Magistrate held that it was apparent from the RRT’s reasons for decision that it assessed the appellant’s claims as put and that it dealt with each of his claims on the information before it.  There was no unfairness apparent in the RRT’s procedures or reasoning and no jurisdictional error had been established.

6. The Notice of Appeal to this Court raises three grounds of appeal.  They are as follows:

   ‘1.The FM failed to consider the issue that arose in this application previously brought against the tribunal.  'An error of law, procedural mistakes and denial of natural justice by not accepting any oral evidence and supporting documents.'

   2.The tribunal exceeded its jurisdiction, in failing to consider procedural fairness as required under section 424A(1) of the Migration Act 1958.

   3.The tribunal denied procedural fairness and therefore committed jurisdictional error at the time of deciding this matter before the tribunal and Federal Magistrates Court by the honourable FM.’

7. The appellant has not complied with a direction which I gave by consent on 14 June 2005 that he should file and serve written submissions no later than seven clear working days before the hearing date of the appeal.  When the matter came before me for hearing this morning the appellant told me that he did not understand that direction although nothing was said to that effect at the time it was given.  I invited the appellant to explain to me the case he wanted to put but he replied that he could not tell me about any mistakes because he does not know about court procedures.  He requested more time in order that he might prepare written submissions.  This request was opposed by the Minister and I refused it.

8. The RRT’s decision was given about two years ago.  The matter was fixed for hearing before me about two months ago.  The appellant has had ample time to collect his thoughts as to why this appeal should succeed but he has not put a single thing before me to demonstrate why the appeal should be upheld.  In those circumstances, all that I can do is take the grounds of appeal and form a view as to whether any of them are made out, having regard to the Federal Magistrate’s reasons for decision and the reasons for decision of the RRT, both of which I have read.

9. The first ground of appeal does not make sense.  The Federal Magistrate considered the issues raised by the appellant’s amended application and written submissions but rejected the appellant’s claims for reasons which have not been shown to be erroneous. 

10. The assertion in the second ground of a failure to comply with the provisions of subs 424A(1) of the Migration Act1958 (Cth) is not made out. While the RRT referred to country information about political parties in India, this information fell within subs 424A(3)(a), hence the RRT was not obliged to put this information to the appellant for his comment.

11. Ground three is non-specific and unparticularised.  The Federal Magistrate came to the conclusion that there was no denial of procedural fairness in the proceedings before the RRT and the appellant has not shown that the Federal Magistrate was guilty of any error in coming to that conclusion.

12. The result is that the appeal must be dismissed with costs and I make an order to that effect.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:            25 August 2005

The appellant appeared in person
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	15 August 2005
Date of Judgment:	15 August 2005