SZCZZ v Minister for Immigration and Citizenship
[2007] FCA 712
•25 May 2007
FEDERAL COURT OF AUSTRALIA
SZCZZ v Minister for Immigration and Citizenship [2007] FCA 712
SZCZZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 351 OF 2007COWDROY J
25 MAY 2007
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 351 OF 2007
BETWEEN:
SZCZZ
ApplicantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
COWDROY J
DATE OF ORDER:
25 MAY 2007
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to ‘Minister for Immigration and Citizenship’.
2.The Refugee Review Tribunal be joined as the second respondent.
3.The application for leave to appeal be dismissed.
4.The applicant pay the costs of the first respondent.
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 351 OF 2007
BETWEEN:
SZCZZ
ApplicantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
COWDROY J
DATE:
25 MAY 2007
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The applicant is a citizen of India who arrived in Australia on 17 July 2003. On 20 August 2003 the applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs (‘the Department’). A delegate of the Minister for Immigration and Multicultural Affairs (‘the Minister’) refused the application for a protection visa on 21 October 2003. On 17 November 2003 the applicant applied to the Refugee Review Tribunal (‘the Tribunal’) for a review of that decision. In a decision handed down on 24 February 2004, the Tribunal affirmed the Minister’s decision (‘first decision’).
On 21 April 2006 Federal Magistrate Driver quashed the first decision of the Tribunal and remitted the matter to the Tribunal for reconsideration. On 17 October 2006 the Tribunal, constituted by the same member handed down a decision which again affirmed the decision of the Minister (‘the second decision’). The applicant then lodged an application in the Federal Magistrates Court for judicial review of the second decision. On 26 February 2007 Federal Magistrate Turner dismissed the application. The applicant filed a Notice of Appeal from that decision in this Court.
CLAIMS BEFORE THE TRIBUNAL
The applicant had attended a hearing before the Tribunal on 21 September 2006. The applicant claimed to have a well-founded fear of persecution by the authorities and the main opposition party DMK for his political membership of the ADMK. The applicant provided numerous examples of such persecution. The applicant stated that the DMK was in power in the applicant’s home state and that they were creating more problems for him and had harassed his father and wife.
THE TRIBUNAL’S DECISION
The Tribunal did not accept the applicant experienced harm in the past at the hands of the DMK or that he would face harm by the DMK if he returned to India. The Tribunal accepted that the applicant had been involved in confrontations which resulted in the applicant coming to the attention of the local authorities but did not accept they were related to the applicant’s imputed political opinion. The applicant was unable to explain how those events related to the applicant’s political opinion.
The Tribunal found that the applicant was unable to provide any meaningful reason why the DMK would have an adverse interest in him. The Tribunal accepted that the applicant and his family may have been aligned with the ADMK but considered his allegiance to be minimal. The Tribunal then accepted, with reference to country information, that the main political parties in the applicant’s state, the DMK and ADMK, are involved in confrontation but did not accept that the fact the DMK currently held power gave rise to more than a remote possibility that the applicant would face harm at the hands of the DMK.
The Tribunal found that the applicant was not a person to whom Australia owed protection obligations under the Convention relating to the Status of Refugees 1954.
PROCEEDINGS BEFORE THE FEDERAL MAGISTRATE
On 15 November 2006 the applicant filed an application for an order to show cause why a remedy should not be granted in respect of the Tribunal’s second decision. Before Turner FM the applicant asserted that the Tribunal did not consider all the relevant information and that its decision contradicted a passage in Professor Hathaway’s text entitled ‘The Law of Refugee Status’ (Butterworths, Canada 1991) which stated that a Tribunal should not take an overly stringent approach to questions of credibility. The applicant also claimed that the Tribunal did not give weight to the statements made by him in relation to his alleged harassment from politicians.
An affidavit was annexed to that application in which the applicant claimed that the Tribunal had incorrectly applied the law to the facts, denied procedural fairness and that the Tribunal did not believe the applicant’s submissions and oral evidence.
THE DECISION OF THE FEDERAL MAGISTRATE
Turner FM noted that the applicant did not receive a copy of the Court Book before the hearing but accepted the submission of the Minister that most of the material in the Court Book was available for the first review and that the applicant had a copy of the Tribunal’s decision at the time he filed his affidavit on 15 November 2006. Turner FM noted that the applicant was given every opportunity to put submissions and found that the applicant had not been disadvantaged by not having the Court Book prior to the hearing.
Turner FM found there was nothing to substantiate the grounds raised by the applicant and that a finding of credibility was one of fact which could only be challenged if there were a palpable misuse of advantage or a finding that was inconsistent with facts incontrovertibly established by the evidence. His Honour also found that the weight to be given to material before the Tribunal was a matter upon which the Tribunal was to decide and that such determination was not open to review. As the applicant had not raised an arguable case, Turner FM dismissed the applicant’s application pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (‘the Rules’).
NOTICE OF APPEAL
The applicant filed a Notice of Appeal on 9 March 2007 in this Court. The grounds of appeal relied upon are stated as follows:
‘The Tribunal erred in failing to consider all claims and issues put forward by me.’
NOTICE OF OBJECTION TO COMPETENCY
The Minister filed a Notice of Objection to Competency on 7 May 2007 on the grounds that the decision of Turner FM is interlocutory, requiring leave to appeal and that leave to appeal had neither been sought nor granted.
FINDINGS
The applicant did not appear at the hearing on Friday 11 May 2007. Three letters were tendered by the Minister, each addressed to the applicant. One letter from the Court dated 5 April 2007 advised the applicant of the hearing date, another letter from the Minister’s solicitors dated 18 April 2007 reminded the applicant of the hearing date and the third letter from the Minister’s solicitors dated 7 May 2007 enclosed the Notice of Objection to Competency. There has been no response from the applicant to any letter. I am satisfied that the applicant has received notification of the hearing and is aware of the hearing date and has chosen not to attend.
Turner FM was not satisfied that the application raised an arguable case and dismissed the application pursuant to r 44.12(1)(a) of the Rules.. Such rule provides that where proceedings are dismissed pursuant to that rule the decision is interlocutory.
It follows that leave of the Court is required to institute the appeal pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth).
The relevant considerations in granting leave to appeal were cited by the Full Court in Decor Corporation Pty Ltd and Another v Dart Industries Inc (1991) 33 FCR 397 at 398-399. Their Honours stated the relevant considerations as follows:
‘… In Sharp v Deputy Commissioner of Taxation (Cth) (1998) 88 ATC 4,184 at 4,186 (and see also Merman Pty Ltd v Cockburn Cement Ltd [1989] 11 ATPR 49,951 at 49,954; Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (unreported, French J, 15 January 1991)) Burchett J stated the “major consideration[s]”, to be applied by the court upon an application for leave, for which Niemann (supra) is authority. The first test, which relates to the prospects of the proposed appeal, is “whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court”. The second
‘is whether substantial injustice would result if leave were refused, supposing the decision to be wrong.
…
In my opinion, the sufficiency of the doubt in respect of the decision and the question of substantial injustice should not be isolated in separate compartments. They bear upon each other, so that the degree of doubt which is sufficient in one case may be different from that required in another. Ultimately, a discretion must be exercised on what may be a fine balancing of considerations.”’
No jurisdictional error has been identified in the Notice of Appeal. Turner FM dismissed the appeal because no error on the part of the Tribunal existed and because the applicant’s challenge was confined to factual findings made by the Tribunal. The Tribunal upheld the Minister’s decision because it was not satisfied that the applicant was a person to whom Australia owed protection obligations under the Convention relating the Status of Refugees 1954.
The Court has considered the findings of the Tribunal and Turner FM to determine for itself whether any reviewable error of law is apparent. Having done so, the Court is satisfied that no error of law exists.
Accordingly the Court dismisses the proceedings.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate:
Dated: 25 May 2007
Counsel for the Applicant: The applicant did not appear at the hearing Counsel for the Respondent: JAC Potts Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 11 May 2007 Date of Judgment: 25 May 2007
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