SZEDX v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 677

FEDERAL COURT OF AUSTRALIA

SZEDX v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 677

SZEDX v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 266 of 2005

BRANSON J
24 MAY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 266 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZEDX APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	24 MAY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed. 

2.The appellant pay the costs of the respondent fixed in the sum of $2500.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 266 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	BRANSON J
DATE:	24 MAY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of the Federal Magistrates Court delivered on 11 February 2005 by Lloyd-Jones FM.  His Honour dismissed the appellant’s application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’).  The Tribunal had affirmed a decision of a delegate of the respondent not to grant the appellant a protection visa.

2. The appellant is a citizen of India who arrived in Australia on 22 December 2003.  In January 2004 he applied for a protection visa.  In a statement annexed to his application for a protection visa the appellant claimed to fear persecution in India by members of the BJP because of his political opinion.  He said that in March 1995 he became a member of the student wing of the Marxist Party of India (‘the SFI’).   He claimed that thereafter he became a member of the youth wing of the Marxist Party of India (‘the DYFI’) and that he eventually became party secretary for his area.  He claimed to have angered BJP officials by persuading many people to leave the BJP and become members of the DYFI. 

3. He claimed that on 25 April 2002 BJP members and police in civil dress broke into his house and beat and threatened his parents.  He said that he managed to escape.  He said that he obtained visiting visas for Malaysia and Singapore and travelled to those countries, returning to India on 19 May 2003.  He claimed that while in India after that date he was hospitalised after being hit by a jeep driven by BJP members.  He further claimed that after being discharged from hospital he obtained an Australian visa and travelled here to obtain asylum.  He asserted that the Indian police were not able to protect him. 

4. The appellant’s application for a protection visa was refused by a delegate of the respondent.  He applied to the Tribunal for review of a decision of the delegate.  He received, and accepted, an invitation from the Tribunal to appear before it.  However he did not attend the scheduled hearing, nor did he advise the Tribunal of any reason for his non‑attendance.  Although the appellant now claims to have been ill at the time of the hearing he acknowledges that he did not advise the Tribunal of this.

5. The Tribunal proceeded to make a decision on his review application without taking further steps to allow him to appear, as it was authorised by s 426A of the Migration Act1958 (Cth) (‘the Act’) to do.

6. The Tribunal in its written reasons for decision noted that the delegate had rejected the appellant’s claims because he was able to obtain an Indian passport legally and depart from India on two occasions.   The Tribunal also considered that the appellant’s delay in departing India after the issue of his Australian visa was inconsistent with a genuine fear of persecution.

7. The Tribunal reached the following conclusions.  First, that without being able to obtain further information from the appellant it was not satisfied that he is a member of the Marxist Party or that he was persecuted in India because of his political opinion.  Secondly, that without further information from the appellant it was not satisfied that he had fled India in fear of persecution.  On that basis the Tribunal was not satisfied that the appellant had suffered any harm in India because of his political opinion nor that the appellant would suffer persecution by reason of his political opinion if he returned to India.  The Tribunal found no reason to suggest that a political opponent of the BJP in India would be at risk of harm, or that such a person would be denied state protection, because of actual or imputed political opinion.  The Tribunal was satisfied that the appellant does not have a well‑founded fear of Convention-based persecution if he returns to India.

8. Before the Federal Magistrate the appellant relied on written submissions.  The Federal Magistrate was satisfied that those written submissions bore little, and possibly no, relationship to his case.  The Federal Magistrate thought it likely that the written submissions related to a quite different case.  As the appellant was unrepresented before the Federal Magistrate, as he is before this Court, his Honour considered for himself whether any arguable case could be made for review of the decision of the Tribunal.  Having given careful consideration to the reasons for decision of the Tribunal his Honour was not able to identify any error made by the Tribunal that went to its jurisdiction.

9. The grounds of appeal contained in the appellant’s notice of appeal to this Court are as follows.  First, that ‘the decision’ involved a failure to conduct a review in accordance with s 424A of the Act and that this constituted jurisdictional error. Secondly, that the judgment and reasons for ‘the decision’ failed to take into consideration a ground upon which the applicant made the judicial review application and that there was a lack of procedural fairness.

10. On 5 April 2005 I made certain directions in this matter including a direction that the appellant file and serve a written outline of his submissions on the appeal five working days prior to the hearing.  The Court file does not contain any written submissions filed by the appellant.    Counsel for the Minister has advised the Court that no written submissions of the appellant have been received by the Australian Government Solicitor, the solicitors on the record for the Minister.  The appellant has told me that he did not bring a copy of his written submissions to Court today.  However, he has advised me that he has a copy of the submissions at home. 

11. The appellant requested an adjournment of this hearing because he does not have his written submissions with him.  I did not consider that it would be appropriate in the interests of justice to adjourn this hearing simply because the appellant has left his written submissions at home.  I advised the appellant that I was willing to receive and consider his written submissions provided that he provided them to me before 9:30 am tomorrow morning.  I interpolate that the appellant lives in Hornsby which, as he told me, is approximately one hour’s travelling time by train from the city.  In the circumstances, it seemed to me that it was open to the appellant to return to Hornsby and obtain his copy of the submissions either this afternoon or before 9:30 am tomorrow morning. 

12. The appellant declined the opportunity to retrieve his written submissions and provide them to the Court.  He advised the Court that he was content to rely on his oral submissions and that the written submissions, if he were to return home to obtain them, would add nothing to his oral submissions.

13. The appellant’s complaint that ‘the decision’ involved a failure to conduct a review in accordance with s 424A of the Act might be a complaint in respect of the decision of the Tribunal or a complaint in respect of the decision of the Federal Magistrate. The appellant has told me that the complaint is a complaint with respect to the decision of the Tribunal. Section 424A of the Act requires the Tribunal to give an applicant particulars of certain information. The section does not apply to information, such as country information, that is not specifically about the applicant or another person. There is no substance in the assertion that the Tribunal did not conduct a review in accordance with s 424A of the Act.

14. The appellant has additionally complained that the Tribunal considered country information rather than the claims made by him.  A reading of the reasons for decision of the Tribunal reveals this complaint to be without substance.  The Federal Magistrate was right to reject it.

15. Turning to the second ground of appeal, the notice of appeal does not identify the ground of the appellant’s application for judicial review that the Federal Magistrate failed to take into consideration.  However, the appellant has told me today that this complaint concerns the failure of the Federal Magistrate to remit his matter to the Tribunal for reconsideration as he requested.  The Federal Magistrate was not authorised to remit the appellant’s matter for reconsideration by the Tribunal simply because the appellant sought such an order.  His Honour could not do so without identifying some error of jurisdiction affecting the decision of the Tribunal.  No such error was identified before the Federal Magistrate.  Nor has such an error been identified today.  This complaint also fails to identify an error in the decision of the Federal Magistrate.

16. As the appellant is unrepresented before me, I have given careful consideration both to the decision of the Tribunal and to the decision of the learned Federal Magistrate.  I am not able to identify a relevant error or, indeed, any error affecting either decision. 

17. The appeal is dismissed.  The appellant is to pay the costs of the respondent fixed in the sum of $2500.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:             27 May 2005

Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondent:	K Morgan
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	24 May 2005
Date of Judgment:	24 May 2005