SZDZW v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 530

FEDERAL COURT OF AUSTRALIA

SZDZW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 530

MIGRATION – Appeal from Federal Magistrates Court – appeal dismissed.

SZDZW v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 227 OF 2005

HILL J
21 APRIL 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 227 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDZW APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HILL
DATE OF ORDER:	21 APRIL 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the respondent’s costs of the appeal.

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 227 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDZW APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HILL
DATE:	21 APRIL 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(Ex tempore – revised)

HILL J:

1. Before the Court is an appeal from a decision of a federal magistrate dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).  The Tribunal affirmed the decision made by a delegate of the respondent, Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”), refusing to the appellant a protection visa. 

2. The claim of the appellant need only be briefly set out.  He arrived in Australia in 1996 on a student visa.  In 2001, he applied for a protection visa.  This application was refused by a delegate of the Minister.

3. The appellant was a citizen of Nepal and claimed to be entitled to a protection visa on the basis that he was a refugee as defined in the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees ("the Convention").  He said that he had a well founded fear of persecution if returned to Nepal.  He claimed that following the assassination of King Berendra in Nepal, he and his family had become a target of the Maoists who were currently waging an armed insurrection against the Nepalese government.  He said that his father, in a newspaper interview after the assassination, had blamed the Maoists for that act.

4. In the result he said that his whole family had been threatened and harassed.  He said that the authorities could not protect him from harm at the hands of the Maoists and that, indeed, they had not been offered protection.  He claimed that his parents had been refused protection by the authorities and that he had a document to support this.  He did not produce the document.  In due course, the Tribunal notified the appellant that it was unable, on the material before it, to give a favourable decision on his application and notified him of a hearing date.  For whatever reason, the appellant did not attend.  Accordingly, the Tribunal proceeded to make a decision without being assisted by evidence which the appellant might have given it.

5. The Tribunal was not satisfied that the appellant faced a real chance of being persecuted for reason of actual or imputed political opinion or membership of a political or social group constituted by his family or any other Convention reason.  The Tribunal pointed out that the appellant had given only vague details in support of his claims and referred only in general terms to threats of harassment towards his family by the Maoists.  Apart from one incident, which the appellant had referred to, which occurred about a month before he applied for a protection visa, the appellant had not provided any specific details of difficulties which his family had encountered with the Maoists, or the nature and extent of those claimed difficulties.

6. The Tribunal, in its reasons, referred to country information from the Bureau of Democracy, Human Rights and Labour published in March 2002.  That country information referred to the assassination of King Berendra, apparently by the late Crown Prince Dependra, in circumstances where the King and nine members of the royal family were murdered.  The information in that country material was of the most general kind and largely historical.  It referred also to the Maoist insurgency, which had resulted in a declaration of a state of national emergency when the army was mobilised to fight the insurgents. 

7. The appellant applied to the Federal Magistrates Court for judicial review of the Tribunal's decision.  The learned magistrate noted that the appellant had not pointed to any jurisdictional error on the part of the Tribunal.

8. Apparently, he made no submissions to the federal magistrate.  This is perhaps not surprising given that the appellant was not legally represented.  The learned magistrate dismissed the application before him.  He noted that he had been unable to identify any jurisdictional error himself nor, for that matter, had the appellant himself suggested any jurisdictional error in the Tribunal's reasons.  The appellant then appealed to this Court from the learned magistrate's decision.  He asked that the appeal be adjourned for some time to enable him to bring documents he needed by way of evidence from Nepal.  He said he needed these documents to prove the activities with which he had been involved in Nepal.

9. He said he had been unable to get documents in time from Nepal to provide them to the Tribunal.  It might perhaps be mentioned that he has had almost four years from the time he applied for a protection visa to obtain these documents.  Indeed, the Tribunal's decision was given in November 2002, some two and a half years ago.  In any event, documents of that kind would not be admissible in evidence before me.  They would go to the merits of the appellant's application to the Tribunal.  The question whether the appellant is a refugee for the purposes of the Convention is a matter for the Tribunal and not for this Court on appeal from a decision of a federal magistrate.

10. I too have read the Tribunal's decision and cannot detect any jurisdictional error in it.  There is thus nothing in the decision of the learned Magistrate which shows error.  I would in these circumstances dismiss the appeal and order that the appellant pay the respondent’s costs of it.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated:            29 April 2005

Counsel for the Applicant:	The appellant appeared self-represented
Counsel for the Respondent:	L Clegg
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	21 April 2005
Date of Judgment:	21 April 2005