SZEAW v Minister for Immigration & Multicultural Affairs

[2006] FCA 1148

FEDERAL COURT OF AUSTRALIA

SZEAW v Minister for Immigration & Multicultural Affairs [2006] FCA 1148

SZEAW v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 575 OF 2006

EDMONDS J
21 AUGUST 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 575 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZEAW
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EDMONDS J
DATE OF ORDER:	21 AUGUST 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The time for filing a notice of appeal be extended to 4:00 pm on 23 March 2006.

2.The appellant have leave to rely upon an amended notice of appeal in the form of the Proposed Amended Notice of Appeal dated 15 August 2006.

3.The appeal be dismissed.

4.The appellant pay the first respondent’s costs, fixed in the amount of $3,500.

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 575 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZEAW
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EDMONDS J
DATE:	21 AUGUST 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On the basis of the amended notice of appeal, I have concluded that the appeal should be dismissed.  The Refugee Review Tribunal (‘the Tribunal’) found that the appellant did not have a well founded fear of persecution in India for any reason.  That finding was, in my view, open on the evidence before it.

2. Dealing specifically with each of the amended grounds of appeal, the alleged failure to comply with s 424A of the Migration Act 1958 (Cth) (‘the Act’) is, in my view, incapable of succeeding for the very reason that the particulars, or the particular matter which is relied on, namely the incorrect spelling of Chitwan, is not, in my view, information. It is at best a thought process, a conclusion drawn along the way and is not something which, even if the relevant documents had not been provided by the appellant, was not something which needed to be communicated by notice by the Tribunal to the appellant. Counsel for the respondent additionally refers to the fact that these very documents were provided by the appellant which is a further reason why I reject the contention that, in some way or other, the provisions of s 424A of the Act have not been complied with.

3. So far as the second amended ground of appeal is concerned, as I have already indicated, my view is – and this is supported by the authorities to which counsel for the respondent took me – the fact that the Tribunal does not specifically refer to a particular item of evidence is not indicative of a conclusion that that particular evidence has been overlooked.  On the contrary, a wide variety of circumstances may exist for the non-reference to a particular item of evidence, for example, the weight to be attached to it in terms of the evidence as a whole.  For those short reasons, I am of the view that the appeal should be dismissed. 

4. I will order that the appellant pay the first respondent’s costs which I fix in the sum of $3500.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate:

Dated:        1 September 2006

Solicitor for the Appellant:	Newman & Associates
Counsel for the First Respondent:	Mr T Reilly
Solicitor for the First Respondent:	Australian Government Solicitor

Date of Hearing:	21 August 2006
Date of Judgment:	21 August 2006