SZBXE v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 272

FEDERAL COURT OF AUSTRALIA

SZBXE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 272

Migration Act 1958 (Cth) s 418(3) and s 424A

SZBXE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1792 OF 2004

TAMBERLIN J
SYDNEY
14 MARCH 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1792 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	SZBXE APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	14 MARCH 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal is dismissed.

2.        The appellant is to pay the costs of the respondent in the amount of $1,200.00.

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 1792 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	SZBXE APPELLAN
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	14 MARCH 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of Federal Magistrate Scarlett who dismissed an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 21 October 2003.

2. The appellant appeared in person today but has not made any submissions to the Court either in writing or orally.  The Notice of Appeal which is before me relies on three grounds.  These grounds are:

   (a)That the Federal Magistrate failed to find that the Tribunal's decision was in breach of procedural fairness as required under ss 418(3) and 424A(1) of the Migration Act 1958 (Cth) (“the Act”).

   (b)That the Federal Magistrate failed to find that the Tribunal denied the appellant natural justice in that it had material adverse to the appellant which it did not give the appellant access to prior to the hearing and, therefore, there was a denial of natural justice.

   (c)That the above two grounds constitute a failure by the Tribunal to give genuine and realistic consideration to the appellant’s application and to act in a bona fide manner.

3. The decision of the Tribunal was founded on strong findings as to the lack of credibility of the appellant, who is an Indian national and whose claims have been assessed against that country.  The Tribunal did not accept the appellant as a witness of truth.  It found that he was an unconvincing witness and referred to his inconsistent statements, inability to name material which he had written and giving of insufficient responses.

4. The Tribunal member relied on the appellant's lack of knowledge of journalism, newspaper production and printing and concluded that he had not worked for the printers or publications to which he referred. The Tribunal member also had regard to extensive country information which was of a general nature and not directed specifically to the appellant or to a class of persons of which the appellant or other persons are members within the meaning of section 424A of the Act.

5. The member also formed the view, on the basis of the general country information which is detailed in the decision, that the appellant was able to move elsewhere in India, that he was not a high profile person and that there was free movement within India whereby a person from the home state of the appellant could move and live in any other state in India.  It concluded that he was well educated, with a university degree, was not wanted by the authorities and, on his own evidence, had been in employment as a supervisor in a printing press in India.

6. The case for the appellant was that the persons from whom he feared persecution had networks throughout India and would be able to find political opponents readily.  These matters are all questions of fact and they were resolved adversely to the appellant.  It is not for this court to reconsider the merits of the factual material before the Tribunal.

7. No error has been pointed to by the appellant in relation to the Tribunal decision or the judgment of the Federal Court Magistrate. I have considered the decision of the Tribunal and that of the Federal Court Magistrate. The latter decision dealt in some detail with the argument concerning s 424A of the Act and the failure to provide natural justice. I am not persuaded that there is any substance in the grounds that have been raised and I am not persuaded that any reviewable error has been committed. Accordingly, the appeal is dismissed with costs. I assess the costs of the respondent in the amount of $1,200.00.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:             24 March 2005

The Appellant appeared in person with the assistance of an interpreter.
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	14 March 2005
Date of Judgment:	14 March 2005