SZDOU v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1235

FEDERAL COURT OF AUSTRALIA

SZDOU v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1235

SZDOU V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD79 OF 2005

BENNETT J
5 SEPTEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 79 OF 2005

BETWEEN:

SZDOU
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

BENNETT J

DATE OF ORDER:

5 SEPTEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.   The appeal be dismissed.

2.   The appellant pay the respondents’ costs in the amount of $1500.

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 79 OF 2005

BETWEEN:

SZDOU
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	BENNETT J
DATE:	5 SEPTEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from the decision of the Federal Magistrate Lloyd-Jones made on 22 December 2004, dismissing an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 24 March 2004.  The Tribunal affirmed a decision of a delegate of the respondent made on 19 December 2002 to refuse to grant the appellant a protection visa.

2. The appellant is a citizen of India who claimed a fear of persecution by the Indian authorities (at the behest of the authorities of the Indian state Tamil Nadu), due to his political support of the Marumalouchi Dravida Munnetua Kazhagam (‘MDMK’) and his Muslim faith.

3. In particular he claimed that:

   a)he witnessed a number of killings and the massacre of Tamils in Colombo while he was in Sri Lanka;

   b)he decided to assist the Sri Lankan Tamils and became involved in the recruitment of Tamils to work in Singapore and the assistance of Sri Lankan refugees in India;

   c)the Tamil Nadu government monitored his involvement with the Sri Lankan Tamil liberation movement and harassed and interrogated him about his support of that movement;

   d)while he was not arrested by the authorities, there was a constant threat to himself and his family which impinged upon his freedom;

   e)at the same time he supported the MDMK and its leader, Mr V. Gopalsamy (known as ‘Vaiko’) who was a strong supporter of Liberation Tigers of Tamil Eelam (‘LTTE’).  Through his association with Vaiko and the MDMK, the appellant increased his adverse profile with the Tamil Nadu Government and subsequently fled to Brunei;

   f)he was continually harassed, although friends and supporters provided security for him and his family;

   g)because the authorities believed that LTTE was involved in the assassination of Rajiv Ghandi (‘Ghandi’) this could make the appellant a possible target for revenge;

   h)as late as December 2002 the appellant’s wife was threatened with murder and his family had to be given a police escort; and

   i)the appellant could also be harmed because of his wife’s involvement with the Bharatiya Janata Party ( the ‘BJP’).

   The Tribunal’s decision

4. The Tribunal rejected the appellant’s claims that he had a genuine and well founded fear of persecution by reason of his religious beliefs or by reason of actual or imputed political opinion. 

5. At the Tribunal hearing the appellant stated that his ‘case’ was entirely different to that of his wife, and conceded that she had obtained state protection when she was threatened for political reasons in connection with her position in the BJP.  The Tribunal accepted that evidence.

6. In its findings and reasons, the Tribunal identified that the question to be determined was whether the appellant’s fear of being persecuted in India is a ‘well-founded fear.’

7. The Tribunal in its decision set out the factual matters asserted by the appellant that it accepted, for example his sympathy to the cause of the Sri Lankan Tamils and his support for them, including political support.  However, the Tribunal did not accept that the appellant had been targeted for harm by the Tamil Nadu authorities.  Nor did the Tribunal accept that there is a real chance that the Tamil Nadu authorities would persecute him because of his support of the LTTE, the Sri Lankan Tamils, or for Ghandi’s assassination.  The Tribunal found that the appellant was not a high profile supporter of the MDMK and therefore did not accept that the appellant would attract adverse attention from the authorities because of his political support of the MDMK.  Finally, the Tribunal noted that the appellant did not provide evidence to support his initial claim of persecution for religious reasons. 

   Grounds in application

8. The application for review to the Federal Magistrate under s39B Judiciary Act 1903 (Cth) only raised factual matters. It was not suggested that the Tribunal had not dealt with any of those matters. His Honour held that the application and the written submissions filed by the appellant did not raise any ground for review.

9. His Honour then independently considered whether any arguable case on the material could have been made out.  He noted that, on a fair reading of its reasons, the Tribunal accepted some aspects of the appellant’s case but did not accept the key claims on the basis of admissions made by him or his inability to produce evidence to indicate that the Tamil Nadu government would be adversely interested in him. 

10. Noting that the obligation was on the appellant to present his case supported by any evidence that was available that assisted in establishing the veracity of the claims made (Re the Minister for Immigration and Multicultural Affairs & Anor; ex parte Abebe [1999] 197 CLR 510; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] 211 CLR 441), the Federal Magistrate was not able to identify any ground that the Tribunal had committed a jurisdictional error.

    Notice of Appeal

11. In the notice of appeal filed on 19 January 2005 (‘the notice’) the appellant specifies a single ground of appeal;

    ‘Looking asylum in Australia to safeguard my life from my opponent in India.  RRT & Federal Magistrate Court not considered my case as real I seek refuge from the Full Federal Magistrate Court of Australia’  (Errors included)

12. The notice appears to seek an impermissible merits review or to invite the Court’s intervention to provide the appellant with refuge, which is not within the jurisdiction of this Court.  The notice does not identify any legal error in the decision of Lloyd-Jones FM or jurisdictional error by the Tribunal.

13. At a directions hearing on 30 March 2005 before Hill J the appellant appeared in person, assisted by an interpreter.  On that occasion, orders were made by consent.  These included the order:

    ‘The appellant file and serve written submissions seven (7) working days prior to the hearing date.’

14. The appellant has not complied with that order.  The hearing for this appeal was initially set down for 21 April 2005.  However, due to the appellant’s medical condition, Hill J agreed to vacate that date and re-list the matter for 1 September 2005.  Even in light of the appellant’s medical condition, the appellant has had sufficient time before the second hearing date to file submissions.

15. The appellant filed a letter, dated 19 January 2005 and also dated 29 November 2004. The letter is the same letter filed on 29 November 2005 in the Federal Magistrates’ Court, to which Lloyd-Jones FM refers in his judgment at [14]. I shall treat the letter as the appellant’s written submissions in this appeal. The written submissions are in effect a review of the appellant’s visa arrangements and applications, a review of his business ventures in Brunei, India and Australia, and a review of his support of the LTTE. No error or ground for appeal is identified by the appellant’s written submissions.

    Hearing of the appeal

16. The appellant appeared in person, assisted by an interpreter.

17. The appellant stated his concerns about his safety on his return to India and the actions of persons there.  He raised only factual matters.  At the heart of his submissions was a desire to have a rehearing on the merits.

18. The appellant was unable to refer to any error on the part of the primary judge or of the Tribunal.  In order to succeed in his appeal to this Court the appellant must show that the process, reasons or decision of the Tribunal were affected by jurisdictional error.  No error is shown.

19. It is clear from the decision of the Federal Magistrate that the appellant’s claims were carefully considered and I can see no error in that judgment. 

20. The appeal is dismissed with costs.  The appellant is to pay the respondents’ costs fixed in the amount of $1500.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:            5 September 2005

The appellant appeared in person

Counsel for the Respondent:	Sparke Helmore
Date of Hearing:	1 September 2005
Date of Judgment:	5 September 2005