SZDIZ v Minister for Immigration and Citizenship

[2007] FCA 1809

FEDERAL COURT OF AUSTRALIA

SZDIZ v Minister for Immigration and Citizenship [2007] FCA 1809

SZDIZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1279 OF 2007

NORTH J
7 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1279 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZDIZ
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE OF ORDER:	7 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The name of the first respondent be changed to Minister for Immigration and Citizenship.

2.The Refugee Review Tribunal be added as the second respondent.

3.The appeal be dismissed.

4.The appellant pay the first respondent’s costs fixed at $2500.

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 1279 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZDIZ
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE:	7 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Before the Court is an appeal against a judgment of the Federal Magistrates Court which dismissed an application for review of a decision of the Refugee Review Tribunal dated 11 August 2006.  The Tribunal affirmed a decision of the delegate of the Minister for Immigration and Citizenship, the first respondent, not to grant the appellant a protection visa.

2. Before the Tribunal, the appellant, who is a citizen of India, and a Hindu by religion, claimed to fear persecution because he was a member of the Bharatiya Janata Party (BJP) and the Shiv Sena.  He claimed that he had been harassed by members of the Congress Party in the past.  He also claimed to have a fear of persecution by reason of being a Hindu. 

3. The procedural history and a summary of the proceedings before the Tribunal are set out in the reasons for judgment of the Federal Magistrate at [1] to [35].  It is unnecessary for me to repeat those matters and I adopt the detailed summary provided by the Federal Magistrate. 

4. Before the Federal Magistrate, four grounds of review were argued, namely apprehended bias, denial of procedural fairness, failure to comply with s 424A of the Migration Act1958 (Cth) and a failure to deal with a claimed absence of state protection. Each of these grounds was rejected.

5. The appellant filed a notice of appeal in this Court that raised the single ground of appeal that the Tribunal erred in failing to consider all claims and issues put forward by the appellant.  The ground is not particularised.  It does not indicate which claims or issues were not considered by the Tribunal.  This seems to raise an argument not raised before the Federal Magistrate.     

6. At the hearing of the appeal the appellant was asked to explain his complaint concerning the Tribunal decision.  He was not legally represented and argued his appeal through a Gujarati interpreter.  He was not able to explain the ground of appeal and observed that he was not familiar with legal matters. 

7. In view of the fact that the appellant was not legally represented, I have scrutinised the original statement made by the appellant in support of his visa application and a further statement in similar terms supporting his application for review to the Tribunal.  I have not been able to detect any failure in the Tribunal to consider the claims and issues put forward by the appellant in those documents.

8. I have also considered the judgment of the Federal Magistrate and can find no error in the conclusions which she reached.  As the sole ground of appeal raised issues not argued before the Federal Magistrate, the appellant would require leave in order to advance that argument now.  As there is no prospect of success of that argument on appeal, such leave should be refused. 

9. Consequently, the appeal must be dismissed.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:
Dated:        21 November 2007

Counsel for the Applicant:	Appeared in person
Counsel for the 1st Respondent:	Ms S Kaur-Bains
Solicitor for the 1st Respondent:	Blake Dawson Waldron
Date of Hearing:	7 November 2007
Date of Judgment:	7 November 2007