SZCHP v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1687

FEDERAL COURT OF AUSTRALIA

SZCHP v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 1687

SZCHP v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 1426 of 2005

WILCOX J
18 NOVEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1426 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:

SZCHP
APPELLANT

AND:

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

WILCOX J

DATE OF ORDER:

18 NOVEMBER 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 1426 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:

SZCHP
APPELLANT

AND:

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	WILCOX J
DATE:	18 NOVEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This is an appeal against a decision of Federal Magistrate Raphael given on 29 July 2005. The learned magistrate dismissed an application for prerogative relief in relation to a decision of the Refugee Review Tribunal (‘the Tribunal’). The Chief Justice directed, pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), that this appeal be heard and determined by a single judge.

2. A notice of appeal was filed in this Court within time, on 17 August 2005, but it did not disclose any ground of appeal.  At a directions hearing on 15 September 2005, Registrar Hedge ordered the appellant to file an amended Notice of Appeal, setting out with full particulars the grounds of appeal relied upon.  On 28 September 2005, the appellant filed an Amended Notice of Appeal containing eight paragraphs.

3. Paragraphs 1 states that the ‘purported decision of the Tribunal does not reflect that it was made in good faith and according to the rules of natural justice’.  At no time has the appellant advanced reasons for that claim.

4. Paragraphs 2 to 6 deal with factual findings of the Tribunal.  They raise no claim of jurisdictional error.  I note in passing that it is simply incorrect of the appellant to assert, as he does in para 4, that the ‘Tribunal noted that the Applicant appeared to be a credible and truthful witness’.  There is nothing to that effect in the Tribunal’s reasons for decision.  On the contrary, the Tribunal disbelieved much of the appellant’s evidence, including his claims of what had happened to him in India.

5. Paragraphs 7 and 8 complain that the Tribunal failed to consider whether the appellant could relocate elsewhere in India.  It appears from the Tribunal’s reasons that the member discussed this possibility with the appellant at the hearing; the appellant responded negatively to the suggestion.  It is true that the Tribunal did not discuss relocation in that section of its reasons that is headed ‘Findings and Reasons’.  However, that is understandable.  The Tribunal had concluded that the appellant’s claimed fear of torture and death had no basis in the objective facts of his circumstances and experiences.  In other words, there was no reason why the appellant could not return to his own village.  On these findings, the issue of relocation did not arise.

6. In his reasons for judgment, the magistrate emphasised that he had no power to review the findings of fact made by the Tribunal.  Regrettably, the implications of his Honour's statement do not appear to have been understood by the appellant.  When I asked the appellant, today, to tell me why he argued that the magistrate’s decision was wrong, he complained the Tribunal had not accepted what he had said about what happened to him in his life.  The appellant amplified this complaint by referring to aspects of the claim he had advanced before the Tribunal.  However, he did not put before me any argument about jurisdictional error. 

7. The appellant has not put before me any contention about an error of law or failure to follow proper procedure.  At the hearing before the magistrate, the appellant had complained the Tribunal had failed to address a claim that he was vulnerable to persecution as a member of a particular social group.  The magistrate rejected the complaint because he was unable to see that the appellant had ever made a claim to belong to a particular social group: see para 9 of the decision. 

8. It seems to me the magistrate was correct.  It is clear from the Tribunal's reasons that the appellant’s claim for a protection visa was made on the basis that he was a member of a minority religion in India, Islam.  Before the Tribunal, the appellant developed this claim by giving evidence about the things that had allegedly occurred in the village in which he lived in Tamil Nadu.  The Tribunal dealt with those claims, but adversely to the appellant.  This was because the Tribunal was unable to accept the truth of many of the appellant’s statements of fact. 

9. It is not the function of this Court, nor was it the function of the magistrate, to determine whether the Tribunal should, or should not, have believed the appellant's evidence. Determination of the facts of the case, including whether particular evidence should be accepted, is peculiarly a matter for the Tribunal.  If the Tribunal has not fallen into jurisdictional error in determining the case, neither the magistrate nor this Court has power to interfere with the Tribunal's decision. 

10. It seems to me that, from first to last, the only matter that has been advanced by the appellant that could conceivably be regarded as an argument of jurisdictional error is the appellant’s claim that the Tribunal should have considered whether he belonged to a particular social group.  That matter was dealt with by the magistrate in a manner with which I respectfully agree.  There being no other matter which might arguably attract the jurisdiction of this Court, the magistrate's decision must be upheld. 

11. The appeal will be dismissed with costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:             6 December 2005

The Appellant appeared in person.
Counsel for the First Respondent:	Mr T Reilly
Solicitor for the First Respondent:	Australian Government Solicitor
There was no appearance for the Second Respondent.
Date of Hearing:	18 November 2005
Date of Judgment:	18 November 2005