SZCVN v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1157

FEDERAL COURT OF AUSTRALIA

SZCVN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1157

SZCVN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 666 OF 2005

MOORE J
29 JULY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 666 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZCVN APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	29 JULY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.  The appeal be dismissed.

2.  The appellant pay the respondent's 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 666 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZCVN APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MOORE J
DATE:	29 JULY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of a Federal Magistrate of 14 April 2005 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 9 January 2004 which was handed down on 3 February 2004.  The Tribunal had been asked to review a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") of 26 August 2003 whereby the delegate of the Minister refused the appellant a protection visa. 

2. It is unnecessary to set out in detail the basis upon which the claims were made for the protection visa.  It is sufficient to note that the appellant, who is a national of India, claimed to have been involved in activities in the mid to late 1990s which had attracted the attention of political forces in India which had the result that he was at risk of harm.  Indeed it was part of his case that his father had been tortured and killed for essentially the same reason. 

3. The Tribunal did not, in substance, accept that the appellant had experienced the matters upon which his claims were based.  The Tribunal went on to indicate that if it was wrong and the appellant had been, or was at risk of harm, any such risk would not be for a reason relating to the convention. 

4. The Tribunal also said that it was, in any event, open for the appellant to relocate to other areas of India, specifically, to relocate from Tamil Nadu which was the area in which the appellant had lived and in which he had said he had experienced harm.

5. In the proceedings before the Federal Magistrate the appellant raised a multitude of issues which were said to establish jurisdictional error.  One specific matter raised by the appellant was to the effect that he had been ill at the time of the hearing, that is the hearing before the Tribunal, and he gave evidence about that matter to the Federal Magistrate.  Ultimately however the Federal Magistrate concluded that the appellant had not been involved in any accident that would have incapacitated him in any relevant sense in the proceedings before the Tribunal.

6. I have endeavoured to distil from the notice of appeal and the written submissions filed on behalf of the appellant what are the issues sought to be raised in this appeal.  Both those documents have the appearance of being something akin to pro forma notices of appeal filed in this Court and pro forma submissions in support of such appeals filed in this Court and comments made by the appellant would support a conclusion that they were.  Nonetheless, I will briefly address what appear to be the three matters raised in those two documents.

7. The first concerns an argument that this case raises issues similar to those determined by the High Court in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30. It is not apparent to me that there is an evidentiary foundation which would support such an argument and it is unnecessary to say anything more about this point.

8. The next allegation is that the Tribunal relied on country information adverse to the appellant's case and that the Tribunal did not draw that material to the appellant's attention.  The Tribunal appears only to have relied in the most peripheral way on country information.  However that information could not be described as information adverse to the case advanced by the appellant, and on one view is supportive of the case advanced by the appellant.  It does not appear to me that there is even arguably jurisdictional error attending the use of that information by the Tribunal.

9. The last matter appears to be a complaint that the Tribunal did not deal with an aspect of the claim raised by the appellant.  That aspect was his membership of a political party known as ADMK.  It is not apparent to me, however, from the material in the appeal book that his claim was advanced on the basis that he was, or had been, a member of that political party.  Indeed if that is the same as the DMK, the Tribunal approached the matter on the basis that the appellant's claims were that he had been chased by members of that party, that is the DMK.  Indeed the appellant appeared to concede in his brief submissions that the claim of membership of the ADMK was not a matter raised by him before the Tribunal.  Ultimately however there is no material from which it could be inferred that it is even open to the appellant to argue that the Tribunal failed to deal with this aspect of his claim.

10. I have read the reasons of decision of the Tribunal.  It is not apparent to me that the Tribunal fell into jurisdictional error.  I have read the reasons for judgment of the Federal Magistrate.  It is not apparent to me that his Honour erred in dismissing the application for constitutional wits.  Accordingly the appeal should be dismissed.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:             23 August 2005

The Appellant appeared in person.
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	29 July 2005
Date of Judgment:	29 July 2005