SZCNL v Minister for Immigration and Multicultural Affairs

[2006] FCA 1192

FEDERAL COURT OF AUSTRALIA

SZCNL v Minister for Immigration & Multicultural Affairs [2006] FCA 1192

SZCNL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 550 OF 2006

DOWSETT J
7 AUGUST 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 550 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZCNL
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWSETT J
DATE OF ORDER:	7 AUGUST 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.        The appellant pay the first respondent’s costs of the appeal.

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 550 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZCNL
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWSETT J
DATE:	7 AUGUST 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of a Federal Magistrate declining to grant constitutional writs directed to the Refugee Review Tribunal (the “Tribunal”) setting aside a decision made by that Tribunal.  By that decision the magistrate upheld a decision to decline an application by the present appellant for a protection visa. 

2. The appellant was born on 18 November 1975 in India.  He is an Indian of the Muslim faith.  His claim to a protection visa depends primarily upon alleged fear of persecution for reason of religion.  In his application he identified one or, possibly, two attacks upon him which he attributed to religious motivation and made general claims of discrimination in employment and otherwise.  However the application lacked any particularity as to dates or places upon which relevant events occurred.  Nothing about the application rendered it inherently and obviously reliable.  The Tribunal indicated to the appellant that it was not in a position to grant his application on the basis of its content alone.  He was invited to attend a hearing in order to provide more information.  The appellant indicated that he wished to appear but in the event, did not do so.  In those circumstances the Tribunal was left to act on his application and certain country information which was available to it.  It rehearsed various aspects of this material and concluded that it was not satisfied that the appellant was a person to whom Australia owed protection obligations.

3. In the amended application to the Federal Magistrates Court the appellant asserted, firstly, that the Tribunal had committed jurisdictional error in that it had failed to:

   ‘...provide any meaningful opportunity for the applicant to comment on the independent country information accepted by it.’

4. Secondly, he asserted that the Tribunal had:

   ‘...misunderstood an essential pre-condition to an inviolable limitation or restraint upon its power and its jurisdiction necessary for the existence of the satisfaction required by section 65 to grant or refuse the application.’

5. This appears to mean that the Tribunal failed to consider his claim fully or to address a central element of it, namely the religious basis of the claimed persecution.  Thirdly, he claimed that the Tribunal had asked itself the wrong question and totally ignored the evidence that the applicant had been attacked and harmed.  Fourthly, he claimed that there was jurisdictional error in failing to hold that threats to the applicant’s life constituted persecution.

6. The Federal Magistrate considered the various grounds.  As to failing to provide an opportunity to comment on independent country information, the Magistrate correctly concluded that section 424A did not require that the Tribunal give notification pursuant to that section because the information fell within subs (3).  I see no reason to depart from that view. 

7. As to the allegation that the Tribunal had failed to address the central element of the claim or had asked the wrong question, the Magistrate understood this to relate to the fact that the Tribunal had not found in his favour.  Her Honour pointed out that the Tribunal had extended to the applicant an opportunity to appear, of which opportunity he did not take advantage.  Notwithstanding this, the Tribunal considered his claim in detail but was unable to act on it because it was not satisfied that he had a well-founded fear of persecution for a Convention reason.  Her Honour obviously concluded that the appellant had contributed to, or brought about, this situation by his failure to appear in order to enable his claim to be investigated and tested. 

8. It must be said that the country information was largely favourable to the appellant, in the sense that it set a background which broadly supported his claims.  However such evidence did not prove that the claim was valid.  It was obviously necessary that he be questioned as to the time, place and nature of each relevant incident in order to assess his claims.  In the circumstances the Tribunal’s decision that it was not appropriately satisfied can hardly be challenged. 

9. It is then alleged that the Tribunal totally ignored his evidence that he had been attacked.  However that is clearly not the case.  The next ground is that the Tribunal exceeded its jurisdiction or committed jurisdictional error.  However there is no identified basis for that assertion.

10. The learned Federal Magistrate gave appropriate consideration to each of the grounds and gave cogent reasons for dismissing them.  I see no reason to depart from any aspect of her Honour’s reasons or to interfere with the decision.  The appeal will be dismissed.

11. I order that the appellant pay the first respondent’s costs of the appeal.

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

Associate:

Dated:       4 September 2006

Counsel for the Appellant:	The Appellant did not appear.
Counsel for the Respondent:	Mr J Mitchell
Solicitor for the First Respondent:	Blake Dawson Waldron
Date of Hearing:	7 August 2006
Date of Judgment:	7 August 2006