SZBUU v Minister for Immigration and Citizenship

[2007] FCA 360

FEDERAL COURT OF AUSTRALIA

SZBUU v Minister for Immigration & Citizenship [2007] FCA 360

SZBUU v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 2317 OF 2006

BENNETT J
21 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2317 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZBUU
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BENNETT J
DATE OF ORDER:	21 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The name of the first respondent be changed to the ‘Minister for Immigration and Citizenship’.

2.The Refugee Review Tribunal is joined as the second respondent.

3.The appeal is dismissed.

4.The appellant is to pay the first respondent’s costs.

5.Leave is granted to the first respondent to file and serve documentation in support of any application for fixed costs within seven days.

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 2317 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZBUU
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BENNETT J
DATE:	21 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of India who claims to have a well-founded fear of persecution.  His application for a protection visa asserted that he was persecuted by the Indian authorities because he was a member of the Student Islamic Movement of India, or “SIMI”.

2. The decision of the Delegate of the Minister to refuse to grant a protection visa was reviewed and affirmed by the Refugee Review Tribunal.  The Tribunal confirmed with the appellant that his claim based on membership of SIMI was the only claim upon which he asserted refugee status.  The Tribunal rejected that claim for the reasons that it gave.  The Tribunal referred to country information about SIMI, which indicated that SIMI membership terminates at the age of 30 and that former members move onto other Muslim associations thereafter.  It accepted that the appellant was involved with SIMI in the early 1980’s and that he could have maintained a relationship with SIMI after reaching 30 years of age.  The country information together with the ‘sketchy and ambiguous’ information from the appellant as to his asserted ‘trustee-manager’ role led the Tribunal to reject the claim that the appellant held a position with SIMI that could be characterised as ‘prominent’ or a ‘leadership role’.

3. The appellant applied for an order from the Federal Magistrates Court to show cause why a remedy should not be granted in respect of the Tribunal’s decision and raised a number of grounds of review in so doing.  Those grounds of review were comprehensively dealt with by Federal Magistrate Scarlett (SZBUU v Minister for Immigration & Anor [2006] FMCA 1714). His Honour dismissed the application without stating expressly whether that dismissal was pursuant to r 44.12(1)(a) or (c) of the Federal Magistrates Court Rules 2001 (Cth). The parties proceeded on the understanding that his Honour’s judgment was final rather than interlocutory and I am satisfied, from my review of his Honour’s reasons, that it is appropriate to proceed on that basis.

   The grounds of appeal

4. The notice of appeal filed in this Court raises the following grounds:

   (1)‘The Single judge of the Federal Magistrate Court in his Honors judgment delivered on the 9 November 2006 failed to find error of law, jurisdictional error procedural fairness and relief under section 39 B of the judiciary Act. 1903.’

   (2)‘The grounds and relief is very much similar with a recent High Court judgment – Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30(8 August 2002)’.

   (3)‘Recent High Court judgment ; Plintiff S 157/2002 Commonwealth of Australia [2003] HCA 1’.

   (4)‘Recent Federal Court of Australia judgment : AGDB V Minister for Immigration and Multicultural Affairs.  I will provide more ground after received the judgment.’

   (5)‘The grounds and relief is very similar with a recent Federal Court judgment –SZCBB v Minister for Immigration and Multicultural and Indigenous Affairs.’

   (6)‘Tribunal made his decision in bad faith.  I was prosecuted because of my religious believe  and member of SIMI.  Hindu fundamentalist had targeted me.  It was very difficult time for me, Hindu militants would pursue me no matter where else I might go in India.’

   (7)‘The FM erred in failing to find that the Tribunal erred in law under section 476, section 426 and Migration Act 1958. The FM in his honor judgement delivered on 9 November 2006 failed to find the error of law and relief under section 39b of the judiciary Act.’

   (8)‘My point is that despite having attended the hearing , it became imperative that, before the Tribunal made up its mind to dismiss the application, such in information was required to be sent to me in written to make comments, in order to fully compliance of section 424A as decided by the majority Judge of the High Court in SAAP.’

5. The appellant appears in person, assisted by an interpreter.  He provided a written submission and added to that at the hearing.  The written submission set out factual matters going to be merits of the Tribunal decision.  The appellant asserts that the Tribunal acted “illogically” because it did not accept his claims.  He also raises, apparently as a ground of bias, “no rationality” and reliance by the Tribunal on country information.  None of these matters establish jurisdictional error.

6. The first ground of appeal simply makes a general assertion as to the decision in the Federal Magistrates Court.  No particulars have been given.  His Honour methodically addressed the appellant's grounds and found that they did not reveal jurisdictional error on the part of the Tribunal.  I have not found any error in his Honour's approach or reasons.

7. The second ground refers to Muin v Refugee Review Tribunal (2002) 190 ALR 601. No basis has been made out by the appellant for the application of Muin to the circumstances of this case.  I am unable to discern any parallel between this case and Muin which would lead to a finding of jurisdictional error on that ground.

8. The third ground cites Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. Again, the ground of appeal is presented by way of an unparticularised and vague assertion. It is unclear what assistance the appellant seeks to draw from Plaintiff S157/2002 and this ground of appeal must fail.

9. The fourth ground refers to the case ‘AGDB V The Minister for Immigration and Multicultural Affairs’ (sic).  Neither counsel for the Minister nor I have been able to ascertain that such a case exists.  The appellant was unable to assist the Court with any particulars.

10. The fifth ground refers, it would seem, to a decision of the Federal Magistrates Court (SZCBB v Minister for Immigration & Anor [2006] FMCA 210). In SZCBB, Federal Magistrate Raphael was unable to find any grounds upon which the decision of the Tribunal in that case could be reviewed, and the application was dismissed (at [23]). In the absence of any assistance from the appellant as to what he seeks to draw from SZCBB, this ground of appeal must fail.

11. The sixth ground alleges bad faith on the part of the Tribunal.  As Federal Magistrate Scarlett pointed out, such an allegation is not to be lightly made and must be carefully alleged and proved (at [40]).  No such attempt has been made here.  Further, when questioned as to the basis for such an allegation, the appellant told the Court, in effect, that it was because the Tribunal did not accept his version of the facts and did not itself undertake inquiries to prove his claims.  The Tribunal was under no such obligation.  It has not been established that there was bad faith on the part of the Tribunal and this ground of appeal must fail.

12. The seventh ground of appeal refers to sections of the Migration Act 1958 (Cth) (‘the Act’) that would seem to have no relevance to the facts of this case. No particulars have been given as to why the Tribunal has failed to comply with the statutory regime. This ground of appeal is not made out.

13. To the extent that the eighth and final ground of appeal raises questions of bad faith, I refer to my reasons at [11] above. To the extent that the ground refers to an allegation of failure to comply with s 424A of the Act, no such failure is made out. When questioned further as to any application of s 424A(1) of the Act, the only information to which the appellant could point as information that should have been put to him in writing was country information. Pursuant to s 424A(3)(a) of the Act, the Tribunal was under no obligation to put that information to the appellant in writing.

14. It follows that none of the grounds of appeal have been made out.  The appellant has not shown jurisdictional error on the part of the Tribunal or error on the part of the Federal Magistrate.  The appeal should be dismissed.  The appellant should pay the first respondent’s costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:        16 April 2007

The appellant appeared in person.

Counsel for the Respondent:	M J O’Meara
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	21 February 2007
Date of Judgment:	21 February 2007