SZDVC v Minister for Immigration and Multicultural Affairs

[2006] FCA 1040

FEDERAL COURT OF AUSTRALIA

SZDVC v Minister for Immigration and Multicultural Affairs [2006] FCA 1040

SZDVC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND ANOR

NSD 322 OF 2006

STONE J
8 AUGUST 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 322 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZDVC
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	STONE J
DATE OF ORDER:	8 AUGUST 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent's costs in the amount of $3200.

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 322 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZDVC
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	STONE J
DATE:	8 AUGUST 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of Federal Magistrate Nicholls of 31 January 2006.  His Honour dismissed the appellant's application for judicial review of a decision of the Refugee Review Tribunal made on 21 April 2004; ZCDVC v Minister for Immigration & Anor [2006] FMCA 40.

2. In his notice of appeal the appellant, who is not legally represented, sets out 12 grounds of appeal.  There is considerable overlap between these grounds of appeal which, understandably, are not entirely clear or precise.  I have been assisted by written and oral submissions made by counsel for the first respondent, Mr Mantziaris, who accurately summarised the grounds of appeal under five headings and which I take the liberty of quoting:

   “(a)That the Tribunal erred in law in its application of the definition of ‘refugee’ to the circumstances of the appellant: …

   (b)That the Tribunal had misapplied the relocation test: ..

   (c)That the Tribunal breached procedural fairness by making ‘use of [the appellant’s] physical condition against him’ and by not being ‘flexible’ in its procedures: ..

   (d)That the Tribunal was biased or acted in bad faith against the appellant by failing to consider the illness and ‘the mental agony and shock of the appellant’ …

   (e)That the Tribunal improperly used country information in its determination of the decision: …”

3. These grounds of appeal, except that mentioned in paragraph (e), were considered in detail by the Federal Magistrate as they coincided with the grounds for judicial review of the Tribunal's decision.

4. The fundamental problem for the appellant was that the Refugee Review Tribunal made adverse credibility findings and, where the Tribunal accepted the appellant's account of incidents in which he had been involved, it did not accept that these incidents occurred for a Convention reason.  The adverse credibility finding was generally based on the appellant's lack of knowledge and understanding about the Muslim organisation, the Tamil Nadu Muslim Munnetra Kazhagam (TMMK), of which he claimed to be an active member and secretary of the students' branch.

5. Federal Magistrate Nicholls described the basis of the Tribunal's findings and gave the appellant every opportunity to put his case and expand on the claims he made.  After hearing from the parties on 9 June 2005 his Honour adjourned the matter so he could consider the transcript and the tape of the hearing before the Tribunal and assess the appellant’s claims of lack of procedural fairness.  His Honour also permitted the parties to file written submissions within 14 days, in relation to those claims.  After a further hearing on 25 October 2005 his Honour gave the appellant another opportunity to make submissions on aspects of his claims.  It is not necessary for me to repeat the analysis made by his Honour of those claims.  It is sufficient to say that I am satisfied that his Honour was correct in finding that the findings made were open to the Tribunal and that the claims of error on the part of the Tribunal were not made out.

6. As mentioned above, the only ground of appeal before me today that was not also a ground for judicial review put to the Federal Magistrate is that the Tribunal improperly used country information in coming to its decision.  This claim is not particularised and at the hearing today the appellant was only able to say in support of this ground that the Tribunal erred by preferring independent country information to his own account.  This claim goes to the merits of the decision without any allegation of legal error and therefore this Court does not have jurisdiction to consider it.  The other submissions made by the appellant today also went to the merits of the case and as such could not advance his appeal.  For these reasons the appeal must be dismissed with costs. 

7. The first respondent seeks costs in the fixed amount of $3200.  I am satisfied that this amount is reasonable and so order.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:        14 August 2006

Counsel for the Appellant:	The appellant appeared in person
Counsel for the First Respondent:	Mr C Mantziaris
Solicitor for the First Respondent:	Clayton Utz
Date of Hearing:	8 August 2006
Date of Judgment:	8 August 2006