SZCZL v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 874

FEDERAL COURT OF AUSTRALIA

SZCZL v Minister for Immigration and Multicultural and Indigenous Affairs
[2005] FCA 874

SZCZL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 838 of 2005

WILCOX J
24 JUNE 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 838 of 2005

BETWEEN:	SZCZL APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	24 JUNE 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 838 of 2005

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

JUDGE:	WILCOX J
DATE:	24 JUNE 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against a decision of Federal Magistrate Barnes dismissing an application made by the appellant under s 39B of the Judiciary Act 1903 (Cth). Pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), the Chief Justice directed that the appeal be heard and determined by a single judge.

2. In the proceeding heard by the magistrate, the appellant challenged a decision of the Refugee Review Tribunal (‘the Tribunal’) given as long ago as 20 October 1997.  The appellant had applied for review of a decision to refuse to grant the appellant a protection visa on the basis that he had a well-founded fear of persecution if he returned to his country of nationality, India.

3. The appellant made a number of claims, some of which appear not to have been based on grounds set out in Article 1A(2) of the Convention Relating to the Status of Refugees, as amended by the Protocol Relating to the Status of Refugees (‘the Convention’).  However, one claim seems to have had some connection with the Convention: a claim of a well‑founded fear of persecution on the basis of political opinion.  This claim arose out of the appellant’s alleged membership of the Khalistan Commando Force (‘the KCF’) in the late 1980s.

4. The difficulty for the appellant is that the Tribunal did not accept that the appellant was a member of the KCF.  The Tribunal added that, even if the appellant had had some connection with the KCF in 1989 and 1990, he would not face a real chance of persecution in the future on the ground of this connection.

5. At the hearing before the magistrate, the appellant represented himself.  A number of grounds were advanced to the magistrate.  She dealt with them all in a manner that I find totally convincing.

6. When I invited the appellant to tell me why this Court should overturn the magistrate’s decision, he said that he would have ‘problems’ in India.  He did not elaborate on the nature of the problems.  The appellant also said that, if he had more time, he would obtain a lawyer.  However, the Tribunal’s decision was given on 20 October 1997.  The application for prerogative relief was filed in the Federal Magistrates Court nearly six and a half years later, on 15 March 2004.  There was then a delay of 14 months until the hearing before the magistrate on 19 May 2005.  During the whole of that time, the appellant apparently took no action to obtain legal assistance.  He is now in detention and it is important that the appeal be resolved without further delay.

7. I have carefully read the Tribunal's decision.  It is apparent that the appellant's case before the Tribunal failed on the facts.  To put the matter bluntly, the Tribunal did not believe the major components of the appellant's claims.

8. Federal Magistrate Barnes could not identify any jurisdictional error.  Neither can I.  The appeal will be dismissed with costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:             7 July 2005

The Appellant appeared in person
Solicitor for the Respondent:	Mr A Markus of Australian Government Solicitior
Date of Hearing:	24 June 2005
Date of Judgment:	24 June 2005