SZDTW v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1791

FEDERAL COURT OF AUSTRALIA

SZDTW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1791

SZDTW v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 1820 of 2005

BRANSON J
13 DECEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1820 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZDTW
APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

BRANSON J

DATE OF ORDER:

13 DECEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.  The appeal be dismissed. 

2.  The appellant pay the respondents’ costs fixed in the amount of $3000. 

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1820 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZDTW
APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	BRANSON J
DATE:	13 DECEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. The appellant, a citizen of India, appeals to this Court from a judgment of the Federal Magistrates Court delivered on 8 September 2005. By that judgment the Federal Magistrate dismissed the appellant’s application for judicial review of a decision of the second respondent (‘the Tribunal’) affirming the decision of a delegate of the first respondent (‘the Minister’) to refuse the appellant a protection visa. 

   BACKGROUND

2. The appellant claims to fear persecution in India for reason of his political opinion and membership of a particular social group. He asserts that he has spoken out against the effect of liquor and poverty on villagers and this was seen negatively by politicians and union leaders who owned the liquor shops. He states that he ‘fought for justice, would not accept corruption, sowed the seeds of revolution and … wanted to write about India’. The appellant claims to have been assaulted in three incidents in 1997, 2000 and 2003 and that he will be killed by politicians or the police if he returns to India. He also claims to have experienced social alienation and employment difficulties as a person of mixed caste background.

3. The appellant applied for a protection visa on 28 January 2003. His application was refused by a delegate of the Minister on 27 June 2003 and the appellant applied to the Tribunal for review of the delegate’s decision on 3 July 2003.

4. On 21 April 2004 the Tribunal affirmed the delegate’s decision to refuse the appellant a protection visa. The Tribunal expressed doubt regarding the appellant’s claimed assaults and found that, even if the assaults had occurred, they were unconnected and did not target the appellant for a Convention reason. The Tribunal also found the appellant’s evidence about his experience of discrimination owing to his mixed caste background to be unconvincing and that, in any case, the appellant’s claimed caste-related difficulties did not amount to persecution. Overall, the Tribunal found the appellant’s evidence to be evasive, lacking in specific detail and not that of a frank or credible witness.

   PROCEEDING BEFORE THE FEDERAL MAGISTRATE

5. On 7 July 2004 the appellant applied to the Federal Magistrates Court for judicial review of the Tribunal’s decision.

6. In his reasons for judgment delivered on 8 September 2005 the Federal Magistrate noted that the appellant’s amended application for judicial review, for the most part, appeared to seek merits review of the Tribunal’s decision. 

7. The Federal Magistrate nonetheless proceeded to deal with specific complaints raised by the appellant with the way in which the Tribunal dealt with his claims. The Federal Magistrate held that, in respect of each complaint, there was no error in the way in which the Tribunal had approached the appellant’s claims and the findings were open to the Tribunal on the material before it.

   ISSUES ON APPEAL

8. The appellant has filed a document titled ‘amended notice of appeal’ and written submissions in this Court.  The appellant has also presented oral submissions to this Court.  The appellant essentially raises four issues. 

9. First, the appellant complains that his mixed caste background was not properly recognised by the Tribunal.  He asserts that the Federal Magistrate ‘just re-told’ the Tribunal’s decision and erred in failing to rectify the Tribunal’s confusion regarding his caste.  The Tribunal clearly dealt with the appellant’s claims regarding employment discrimination and social ostracism owing to his caste background.  No error affects the decision of the Federal Magistrate to reject this complaint. 

10. In raising his complaint regarding the Tribunal’s consideration of his caste background the appellant also suggests that Tribunal ignored ‘corrections and explanations’ about his caste that he sent to the Tribunal in a letter.  Although the Tribunal did not directly refer to the letter in its reasons for decision, the Tribunal is not obliged explicitly to refer to all material before it.  The Tribunal gave the appellant an opportunity at the hearing to clarify his claims and dealt with the substance of the issues raised by the appellant regarding his caste background.  This aspect of the appellant’s complaint does not indicate any error on the part of the Tribunal or the Federal Magistrate. 

11. The appellant’s second and third complaints relate to his claimed social ostracism and fear of persecution.  By the written documents filed with the Court and his oral submissions before me, the appellant sought to elaborate on matters he presented to the Tribunal in support of these claims.  As the Federal Magistrate correctly observed, these points seek impermissible merits review of the Tribunal’s decision.  Neither the Federal Magistrate nor this Court can review the merits of the Tribunal’s decision. 

12. The appellant also asserts that both the Tribunal and Federal Magistrate failed to consider and provide the appellant with a number of books which the appellant claimed would support his claims.  The appellant claims that he lacked the resources to obtain copies of the books and was not provided with a fair chance to refer to the material in the books.  There is nothing to suggest that the appellant was prevented from putting material that he considered to be relevant before either the Tribunal or Federal Magistrate.  Neither the Tribunal nor the Federal Magistrate was obliged to obtain reference books for the appellant. 

    CONCLUSION

13. No error has been established in either the Tribunal’s decision or the judgment of the Federal Magistrates Court.  For this reason the appeal will be dismissed with costs. 

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:            13 December 2005

The appellant appeared in person.
Counsel for the Respondent:	R White
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	23 November 2005
Date of Judgment:	13 December 2005