SZCXJ v Minister for Immigration and Multicultural &

[2005] FCA 951

FEDERAL COURT OF AUSTRALIA

SZCXJ v Minister for Immigration & Multicultural &
Indigenous Affairs [2005] FCA 951

SZCXJ v MINISTER FOR IMMIGRATION & MULTICULTURAL &
INDIGENOUS AFFAIRS

NSD 205 of 2005

LINDGREN J
6 JULY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 205 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZCXJ APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	LINDGREN
DATE OF ORDER:	6 JULY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the 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 0205 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	LINDGREN
DATE:	6 JULY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1. The appellant appeals from a judgment of the Federal Magistrates Court of Australia (‘FMCA’) delivered on 27 January 2005 (SZCXJ v Minister for Immigration [2005] FMCA 71). The Federal Magistrate dismissed an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’). That decision of the Tribunal was made on 22 October 1997 and was authenticated on 23 October 1997. The Tribunal found that the appellant was not a refugee and affirmed a decision of a delegate of the respondent Minister (‘the Delegate’ and ‘the Minister’, respectively) not to grant a protection visa to the appellant.

   Background

2. The appellant is a citizen of Nepal who arrived in Australia on 31 July 1995.  On 27 October 1995 he lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs (‘the Department’).

3. The appellant’s claims were made in submissions in support of his application for the visa, at an interview with the Delegate, and in oral evidence given to the Tribunal at a hearing on 14 October 1997.  The Delegate’s decision refusing the visa was made on 8 October 1996.

4. The appellant claimed to fear persecution in Nepal on the basis of his political opinion.  He claimed that he was a member of the local branch of the Panchayat Party Organisation in Nepal, and that his father was a senior local representative of the party.  He claimed to be at risk of harm from members of other political parties in Nepal, and that because of his political opinions and affiliations, he was verbally abused and assaulted on several occasions.

   Reasons for decision of the Tribunal

5. The Tribunal noted the appellant’s evidence about the history of the Panchayat movement and thought that the appellant’s account involved significant inaccuracies.  I need not recount them here.

6. The Tribunal noted that in 1992 the Panchayat movement became part of the National Democratic Party known as the Rashtriya Prajatantra Party (‘RPP’) which was part of a coalition which won government in November 1994.

7. The Tribunal considered that a party membership card and two letters from the district secretary of the RPP produced by the appellant to the Tribunal were fakes and regarded the appellant as an unreliable witness.

8. The Tribunal took the view that even accepting that the appellant was a supporter of the RPP and faced opposition from supporters of other major parties:

   (a)recent history showed that the RPP had been a sometime ally of nearly all of the other parties;

   (b)the violence that arose between party followers at election times and at other significant moments in the political process could not reasonably be characterised as anything akin to a systematic course of action directed by one party or another against individual members of opposing parties for reason of their political opinion; and

   (c)the Nepalese political process appeared to be a fluid and accommodating one in which violence was limited to the grassroots level and was the spontaneous exception rather than the intended rule, and given the sporadic nature of the violence, the Tribunal thought there was no reasonable cause for thinking that there was a ‘real chance’ of it occurring at any time, let alone for the reasons asserted by the appellant.

9. In perhaps colourful language, the Tribunal member observed:

   ‘Against the backdrop of pragmatic alliances between sitting parliament members, the sporadic clashes between the respective parties’ young male supporters reads to the Tribunal as something much closer to spur of the moment soccer hooliganism than to ideological warfare representative of their or their parties’ intentions.’

10. In conclusion, the Tribunal considered that the kind of violence allegedly feared by the appellant did not constitute persecution for the purposes of the Convention and was satisfied that the appellant did not face a real chance of Convention-related persecution in Nepal.

    The reasons for decision of the FMCA

11. The learned Federal Magistrate dismissed the application for review in brief reasons for judgment.  In substance, the Magistrate considered that the appellant was seeking to challenge the Tribunal’s decision on the facts without disclosing any error of law.

    The present appeal

12. The notice of appeal propounds three ‘grounds’ as follows:

    ‘1. I do not agree with the purported decision given by the Federal Magistrate Scarlett as I believe that the judge did not use all the means at his disposal to produce the necessary evidence that the Tribunal is authentically correct in my case.

    2. I argue that the Tribunal had not looked at the favourable evidence which may have helped me win my case.  The Tribunal didn’t exercise to identify necessary part of important country information that is favourable and supportive of my case which was intentionally not read because I was regarded as an implicit economic refugee other than a refugee of persecution in the view of the decision maker.  My evidence before the Tribunal was inferentially adversely construed against my claim.

    3. I believe the decision has been infected with jurisdictional error as the decision maker failed to identify the complete necessity in applying the definition of a “refugee” in dealing with my case.’

13. The appellant filed written submissions on 29 April 2005 comprising 13 paragraphs.  Those paragraphs do not exhibit any relationship to the three grounds identified in the notice of appeal.  They comprise a wide range of assertions directed to showing that the Tribunal assessed the facts wrongly and came to the wrong decision.

14. It suffices for me to say that in my opinion, the appellant has not shown any error of law, let alone jurisdictional error, infecting the reasoning and decision of the Tribunal.  While the Tribunal may not have referred to every single piece of evidence that was before it, the Tribunal did consider and assess all of the claims made by the appellant.  In both his notice of appeal and written submissions the appellant is seeking a merits review – a role denied to this Court and to the FMCA.

    Conclusion

15. For the above reasons the appeal should be dismissed with costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:             15 July 2005

The appellant appeared in person.
Solicitor for the Respondent:	Mr A Markus, Australian Government Solicitor
Date of Hearing:	6 July 2005
Date of Judgment:	6 July 2005