SZDJF v Minister for Immigration and Multicultural Affairs

[2006] FCA 1132

FEDERAL COURT OF AUSTRALIA

SZDJF v Minister for Immigration and Multicultural Affairs [2006] FCA 1132

SZDJF AND SZDJG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 808 OF 2006

EDMONDS J
21 AUGUST 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 808 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZDJF
First Appellant

SZDJG
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EDMONDS J
DATE OF ORDER:	21 AUGUST 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The first appellant pay the first respondent’s costs.

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 808 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZDJF
First Appellant

SZDJG
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EDMONDS J
DATE:	21 AUGUST 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

EDMONDS J:

1. This is an appeal from the Federal Magistrates Court (Scarlett FM) dismissing an application for review of a decision of the second respondent (‘the Tribunal’), affirming a decision of a delegate of the first respondent (‘the Minister’), to refuse to grant a protection visa to the appellants.  The appellants are husband and wife and are citizens of India.  Only the appellant husband made specific claims under the Refugees Convention whilst his wife relies on her membership of her husband’s family. 

2. The appeal is without merit and must be dismissed.  Based on the evidence before it, the Tribunal was satisfied that the appellant’s fear of persecution in India for the reason of his political opinion, religion or any other Convention reason was not well founded and he was not a refugee.  On the evidence that finding was open and was not, in my view, infected by any legal error. 

3. The appellant’s application to the Federal Magistrates Court raised fifteen grounds, thirteen of which raised no legal error:  see SZDJF & Anor v Minister for Immigration & Anor [2006] FMCA 546. Ground 13 referred to a breach of the rules of natural justice but the learned Federal Magistrate, at [25] of his reasons, was unable to discern such a breach. Nor can I. Ground 14 contained an assertion of an error of law but the learned Federal Magistrate was unable to identify any such error. Nor can I.

4. The appeal to this Court alleges error of law on the part of the learned Federal Magistrate in not identifying, or failing to take into account: (a) the Tribunal’s bias or other legal error on the part of the Tribunal which denied the appellants procedural fairness and natural justice, and (b) matters leading to factual findings of the Tribunal – whether they (those matters) fall within the jurisdiction of the Tribunal. 

5. It was further alleged that the learned Federal Magistrate erred in finding that the Tribunal complied with its obligations under s 430 of the Migration Act 1958 (Cth) (‘the Act’). His Honour, it is alleged, whilst accepting the subjective fear of the appellant ought to have reviewed the merits of the findings of the Tribunal on the basis of factual findings in the matter of relocation by the appellants to elsewhere in the country.

6. As to this last ground of appeal, I am unable to identify where his Honour expressly found that the Tribunal complied with its obligations under s 430 of the Act. Putting that to one side, I am also unable to identify any requirement of s 430 which was not complied with by the Tribunal and the appellant has not particularised any such failure. In the circumstances the first part of this ground must fail.

7. The second part of this ground seeks merits review and provides no proper basis for an appeal.  I have already indicated my view that the Tribunal’s decision was not infected by any legal error of the kind sought to be agitated in the grounds in [3] above.  The learned Federal Magistrate was correct in coming to the same view. 

8. Finally, in the absence of any particularisation of the ground of appeal, that is, par 2(b) of the notice of appeal, this ground too must fail.  On one view it merely seeks merits review and, in the absence of the identification of some jurisdictional error of the kind implicit in the ground, it should be so confined.  On the basis of such confinement this ground also fails. 

9. The orders of the Court will be:

   1.The appeal will be dismissed.

   2.The first appellant to pay the Minister’s costs.

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

Associate:

Dated:        31 August 2006

Solicitor for the Appellants:	The appellants appeared in person
Solicitor for the Respondents:	Clayton Utz

Date of Hearing:	21 August 2006
Date of Judgment:	21 August 2006