SZDCF v Minister for Immigration and Multicultural Affairs

[2006] FCA 1195

FEDERAL COURT OF AUSTRALIA

SZDCF v Minister for Immigration & Multicultural Affairs [2006] FCA 1195

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

NSD 518 OF 2006

DOWSETT J
11 AUGUST 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 518 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZDCF
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWSETT J
DATE OF ORDER:	11 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 518 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZDCF
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWSETT J
DATE:	11 AUGUST 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of a Federal Magistrate declining to review a decision of the Refugee Review Tribunal.  The appellant was born in India on 8 April 1965 and claims to have arrived in Australia on 17 September 2003, travelling on an Indian passport.  He is a Sikh.  The Tribunal outlined his claim as follows:

   ‘·        In 1991 his partner was found with a cargo which contained drugs and was jailed for more than ten years.  He has now been released. 

   ·The applicant has been a supporter of Akali Dal for some twenty years, donating money to support their political objectives and their work for the betterment of Sikhs.  He has been harassed by police and others and has been called a terrorist as a result of his support for Akali Dal.  As a result of this treatment the applicant moved back to New Delhi in 1995.

   ·In 1998 a consignment the applicant was taking from Delhi to Punjab (through Haryana State), was stopped by police.  They claimed that it contained prohibited items and demanded money from the applicant.  Unable to pay, he was taken the police station and beaten up.  He suffered a broken leg requiring major surgery and a steel rod.  This has since impaired his working capacity.  The goods and truck were returned to him and he was released without charge. 

   ·In June 2003, the Haryana police spoke with the Applicant’s wife while he was on business elsewhere, saying he was wanted in relation to weapons smuggling into Kashmir.  On contacting the police the applicant stated that he had not been in that area for some two years and that he had, in any case, made extra efforts to check loads.  The police said that they would nonetheless pursue the case and lay formal charges if the applicant did not present himself at the station within seven days.  The applicant, fearful of a repeat of the incidents in 1991 and 1998, sold his business and truck and paid an agent to organise his travel to Australia. 

   ·The applicant stated he is afraid of being killed by the police.’

2. The Tribunal also referred to independent country information concerning the treatment of Sikhs, particularly in Haryana and of the political party, Akali Dal.  That information suggested that Sikhs in Haryana and other Hindi-speaking states of India suffer some discrimination, although the relevant report did not ‘identify treatment by the state authorities or police as a particular concern’. 

3. The Tribunal accepted that the appellant was a Sikh and that he had made occasional donations to the Akali Dal party.  The Tribunal was “highly sceptical” concerning other aspects of his claims but accepted that he was detained for a brief period in September 1998.  It was concerned that it had no evidence available to corroborate his claim to have been injured whilst in police custody.  The Tribunal did not accept his claim that the police had threatened to lay charges against him. 

4. The appellant’s amended application to the Magistrates Court is summarised in the Magistrate’s reasons.  There is a claim of jurisdictional error, largely based upon the assertion that the Tribunal did not give appropriate weight to certain documents.  There is also a claim of error of law amounting to jurisdictional error, concerning the proper construction of the Convention, but the error is not identified.  There is a complaint that the Tribunal failed to make proper enquiry and that it failed to give the appellant an opportunity to respond to adverse material.  The appellant also complained that he had not been permitted to give evidence and that the Tribunal had not considered his complaints. 

5. The Magistrate dealt with these very broad and unparticularized complaints in a comprehensive way, and no express attack has been made upon her Honour’s decision or any aspect of it.   The notice of appeal identifies a number of grounds.  The first is that the Magistrate erred in not finding absence of procedural fairness, upon the basis that the Tribunal did not give the appellant an opportunity to respond to independent evidence in its possession.  However the only material relied upon, other than that supplied by the appellant, was country information.  There was no obligation to invite comment on that material.  In any event, as his Honour found, it is far from clear that the decision turned on any such material. 

6. Many of the other grounds appear to be little more than arguments on the merits or unparticularized allegations of failure to consider the evidence or the appellant’s complaints.  The grounds in the notice of appeal are generally lacking in particularity and impossible to relate to the Magistrate’s decision.  No attempt was made before me to elaborate on those grounds.  The appellant merely submitted that he was now in a position to put further documents before the Tribunal and sought an opportunity to do so.  He claims that he sought an adjournment in the Tribunal in order to enable him to obtain documents, but his request was refused.  He seems not previously to have made this complaint, at least so far as the record shows.  The Tribunal, in fact, recorded that he had indicated that he did not wish to make further written submissions or present documentary evidence in support of his case.  The appellant nonetheless asserts that he asked for an adjournment in the Tribunal and that he referred to that request before the Magistrate.  There is no mention of such a request in the application for judicial review, in the notice of appeal, in the decision of the Tribunal or in the reasons of the Magistrate. 

7. The appellant has not sworn to such assertion.  If I were minded to allow him to raise this as a new ground of appeal, it would be upon the basis that he file an affidavit or produce the transcript so as to demonstrate the fact that he had made a request for an adjournment.  However the point ought to have been taken before the Magistrate.  I do not consider it appropriate to allow the addition of a further ground of appeal at this time, given that such ground would require consideration of evidence which is not presently before the court. 

8. That the Tribunal may have refused an adjournment would not, in any event, necessarily be a successful ground for challenging its decision.  It would have to be shown that such refusal amounted to a denial of procedural fairness.  Since the appellant had more than one month’s notice of the hearing in the Tribunal, it is not clear to me that he would be able to satisfy this requirement.  In any event, no error is shown in the decision of the Magistrate.  The appeal should be dismissed. 

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

I certify that the preceding nine (9) 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 appeared in person.
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	11 August 2006
Date of Judgment:	11 August 2006