SZDQR v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1550

FEDERAL COURT OF AUSTRALIA

SZDQR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1550

SZDQR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1399 OF 2004

WHITLAM J
23 NOVEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1399 OF 2004

BETWEEN:	SZDQR APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WHITLAM J
DATE OF ORDER:	23 NOVEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed with 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 1399 OF 2004

BETWEEN:	SZDQR APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WHITLAM J
DATE:	23 NOVEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of the Federal Magistrates Court (SZDQR v Minister for Immigration & Multicultural Affairs [2004] FMCA 599) dismissing an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 30 April 2004. In that decision the Tribunal affirmed the decision of the respondent’s delegate refusing to grant a protection visa to the appellant. The decision of the respondent’s delegate had previously been affirmed by a differently constituted Tribunal, but that decision was set aside by the Federal Magistrates Court on 14 November 2003: NAEQ v Minister for Immigration & Multicultural Affairs [2003] FMCA 482.

2. The appellant is a citizen of Burma.  He claimed to fear persecution in that country on account of his past political activities as a member of the All Burma Students Democratic Front (‘the Front’).  The Tribunal did not believe the appellant’s claims and found that his evidence had been fabricated in order to support his application for a protection visa.  This conclusion was based upon a comprehensive analysis of a series of what were described as inconsistencies, obfuscations, contradictions and inplausibilities in relation to a range of issues arising from his evidence.  These included the extent of the appellant’s activities in support of the Front in Burma and in Australia; the appellant’s evidence concerning a record of the names of reserve members of the Front, and telephone calls by him to Burma seeking information in relation to those reserve members; the appellant’s evidence in relation to another Front member referred to as Phyo Phyo Maung; the appellant’s evidence of his places of residence in Burma, and in particular the claim that he had been in hiding prior to his departure from Burma; the appellant’s claim that his family had been visited on several occasions by military intelligence since his departure from Burma; the substantial delay between the appellant’s arrival in Australia on 9 March 2001 and his application for a protection visa on 5 July 2002; and finally the appellant’s demeanour when giving evidence which was characterised by many hesitations and obfuscations.

3. The appellant was represented by a solicitor in the Federal Magistrates Court where he relied upon two grounds of review set out in his further amended application.  Those grounds are repeated verbatim in the notice of appeal in this Court.  For the reasons given by Smith FM, those grounds were correctly rejected.  In particular, the Federal Magistrate was correct to emphasise that none of the fact-finding errors relied on by the appellant were capable of being characterised as amounting to jurisdictional error.  Accordingly, the appeal must be dismissed with costs.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated:             29 November 2004

The appellant appeared in person
Counsel for the Respondent:	Dean Jordan
Solicitor for the Respondent:	Ms AM Nanson from the Australian Government Solicitor
Date of Hearing:	23 November 2004
Date of Judgment:	23 November 2004