SZEGE v Minister for Immigration and Multicultural and Indigenous Affairs
[2005] FCA 783
•26 MAY 2005
FEDERAL COURT OF AUSTRALIA
SZEGE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 783
SZEGE v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
NSD 539 OF 2005
EMMETT J
26 MAY 2005
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD539 OF 2005
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZEGE
APPELLANT
AND:
MINISTER FOR IMMIGRATION MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
EMMETT J
DATE OF ORDER:
26 MAY 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
NSD539 OF 2005
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZEGE
APPELLANT
AND:
MINISTER FOR IMMIGRATION MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
EMMETT J
DATE:
26 MAY 2005
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The appellant, who is a citizen of India, arrived in Australia on 8 April 2004. On 20 April 2004, he lodged an application for a protection (class XA) visa under the Migration Act 1958 (Cth) (‘the Act’). On 21 April 2004, a delegate of the respondent, the Minister for Immigration & Multicultural & Indigenous Affairs (‘the Minister’), refused to grant a protection visa. On 10 May 2004, the appellant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of the delegate’s decision. On 30 June 2004, the Tribunal affirmed the decision not to grant a protection visa.
The appellant then commenced a proceeding in the Federal Magistrates Court on 24 August 2004, claiming Constitutional writ relief in respect of the Tribunal’s decision. An amended application was filed on 22 November 2004. The grounds specified in that amended application were as follows:
‘1.That the RRT decision was effected to take into account a relevant consideration when it assessed weather [sic] the delegate of the Minister raised reasonable grounds for not granting a protection visa.
2.The Tribunal’s satisfaction that I am not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief.
3.That the Tribunal did not observe Migration Act properly to make the decision.
4.I failed to collect supporting documentary evidence because nobody helped me to collect relevant documents.’
On 21 March 2005, the Federal Magistrates Court ordered that the proceeding be dismissed and that the appellant pay the respondent’s costs in the sum of $3,000. By notice of appeal filed on 7 April 2005, the appellant appealed to this Court from the orders of the Federal Magistrates Court. When the matter came before me for directions on 4 May 2005, I directed the appellant to file and serve an amended notice of appeal by 16 May 2005 and that he file and serve written submissions five working days prior to the hearing date. No amended notice of appeal was filed in accordance with that direction. However, when the matter was called on today, the appellant, who appeared in person, submitted an amended notice of appeal that has been filed without opposition from the Minister.
The amended notice of appeal raises the following grounds:
‘1.The single judge of the Federal Magistrate Court failed to find error of law, jurisdictional error, procedural fairness and relief under section 39B of the Judiciary Act.
2.The grounds and relief is very much similar with a recent High Court judgment Muin v The Refugee Review Tribunal, Lie v The Refugee Review Tribunal 2002 HCA 30.
3.The Honourable Trial Judge erred in considering the real state of affairs of my country of residence, I feared harm.
4.Section 474 of the Migration Act is ineffective.
5.The Tribunal erred in law in refusing that I was a member of political party in India. I submitted sufficient documents and oral evidence to prove those matters, but the Tribunal neglected those documentary and oral evidences.
6.His Honour the Federal Magistrate also failed to find that the Tribunal erred in law in determining that I was a member of a political party Trinomial Congress and converted Christian in India and although it had sufficient evidences in front of it to examine.
7.I tried to submit the copy of RRT hearing transcript, but the honourable Federal Magistrate denied to receive the copy of transcript. The transcript is very important to establish my grounds of judicial review application.
8.Regarding my documentary evidences I provided to the Tribunal member did not consider this probably. Regarding my documentary evidences I provided to the Tribunal member did not consider this properly. The certificate issued from India and also certificate contained address and telephone number. If the Tribunal member intend to investigate that document the Honourable Member can find the [I think it is intended to say “genuineness”] of the documents.
…
The Tribunal did not disclose the adverse country information which were used against me. I was not given any adverse information to contest with and to give comment.’
On 24 May 2005, the appellant filed a written submission. The submission, although so called, is no more than a series of assertions as follows:
‘1.The Tribunal did not consider me as a refugee despite many evidentiary proofs.
2.The procedures that were required to be observed under the Migration Act 1958 in connection with the making of a decision were not observed.
3.The Tribunal ignored the merits of my claim. It did not take into consideration the torture & persecution in.
4.The Tribunal did not act in good faith in regards to my claims.
5.The Tribunal misjudged fate of the applicant's claim.
6.The Tribunal made a number of errors to decide the fate of the applicant's claim.
7.The Tribunal's ignoring of relevant evidence and its finding in the face of contradicting independent evidence which indicates actual bias constituted jurisdictional error being a breach of procedural fairness which is an essential condition of the exercise of the decision-making power.
8.I am a genuine refugee under the UN Convention… but the authority has not considered my claims and I have been refused to remain in Australia permanently. The RRT has failed to investigate my claims, specifically the grounds of persecution, in India.
9.Recent High Court judgment Plaintiff S157 of 2002 v The Commonwealth… and SGDB v The Minister… are very relevant of my case.
10.The very recent High Court of Australia judgment Muin v Refugee Review Tribunal and Lie v Refugee Review Tribunal.’
Then followed several references to the judgment of the Federal Magistrates Court, to the transcript before the Tribunal and the reasons of the Tribunal. I invited the appellant to make any oral submissions he wished, by way of supplementing the written argument that had been filed on 24 May 2005. He declined to advance any further oral argument.
I asked the appellant what reliance he wished to place on the transcript of the hearing before the Tribunal. There was no evidence that he endeavoured to submit the transcript to the Federal Magistrates Court. Counsel for the Minister indicated that, on his instructions, no such attempt was made.
The appellant informed the Court that he wished to refer to the transcript before the Tribunal to demonstrate that he answered all of the questions put to him by the Tribunal truthfully. He said that he wanted the Court to look at the transcript because the Tribunal did not believe him and the Court should. The transcript is not before this Court and was not before the Federal Magistrates Court.
Having regard to the fact that the appellant appears without legal representation, I have considered the reasons of the Tribunal, as well as the reasons of the Federal Magistrates Court. The Tribunal’s reasons record that the appellant claimed to have been an active member of the TMC (Trinamol Congress) for six years. He was threatened by members of the West Bengal ruling party, namely the Communist Party of India (Marxist) (‘CPI(M)’), if he did not join them. He claimed that, although he tried to live in other places in India, his opponents tried to kill him and his family.
He claimed that, every now and then, his opponents attempted to set his house alight but he received information in advance and they did not succeed. He claimed that his opponents constantly watched every move, but his fear led him to send his only daughter to a boarding school in Darjeeling.
The Tribunal found that there were a number of discrepancies between the appellant’s claims in his protection visa application and the oral evidence he provided to the Tribunal. However, since the Tribunal had the opportunity of questioning the appellant at the hearing, to the extent of any inconsistencies between his protection visa application and his oral evidence, the Tribunal was prepared to rely on the appellant’s oral evidence in addressing his claims.
The Tribunal accepted that the appellant was a member of the Trinamol Congress since 1998 and that he may have been Block President of the Party, as he claimed. However, the appellant’s length of membership and his designation did not, in the Tribunal’s view, denote any political profile or influence. The Tribunal considered that the appellant’s remarkable lack of knowledge about the party he claimed to have been a member of for six years, and his own description of his activities, demonstrated that he was a low level activist with an insignificant and uninfluential political profile.
The Tribunal was prepared to accept that the appellant may have been harassed from time to time by local youth belonging to the CPI(M). However, the Tribunal was satisfied that the appellant’s experience did not reach the standard of persecution within the meaning of the Convention. The Tribunal ultimately found that the threats that were made did not fall within s 91R(1)(b) of the Act, and did not give rise to any real chance of persecution in the reasonably foreseeable future.
Section 91R(1)(b) relevantly provides that, for the purpose of the application of the Act to a particular person, Article 1A(2) of the Convention does not apply in relation to persecution for one or more of the reasons mentioned in that article unless the persecution involves serious harm to the person. Section 91R(2)(b) relevantly provides that, without limiting what is serious harm, one of the instances of serious harm for the purposes of that paragraph is significant physical harassment of the person.
The Tribunal accepted that the appellant's wife was verbally abused whenever she went to the shops and that regular and petty acts of discrimination, such as name calling and abusive language, are unpleasant and undesirable. However, the Tribunal was satisfied that the discrimination faced by the appellant’s wife did not constitute persecution within the meaning of the Convention, as explained by s 91R.
The Tribunal found that the independent information before it indicated that violence by and against the CPI(M) and Trinamol Congress was the result of inter-party rivalry, which escalated during election campaigns. The Tribunal found, however, that the violence between the two parties has in fact been transitory and found no recent reports of violence involving either party. The Tribunal considered that reports of violent clashes between the two parties appeared to be related to the campaign for the 2001 State Assembly elections.
The Tribunal concluded that the appellant did not have a significant political profile and that his activities did not suggest that he was perceived by his adversaries as having political influence. The Tribunal also referred to the claim by the appellant that he and his wife had converted to Christianity in 1999 because he was inspired by his Christian school friends. The appellant claimed that, while he did not suffer any harm or harbour any fears of harm as a result of his conversion, his conversion meant that other children did not play with his daughter.
The Tribunal was not satisfied that the appellant’s daughter’s experience amounted to serious harm within the meaning of the Convention and noted that, in any event, the appellant’s daughter is currently at a boarding school and is no longer suffering from being ostracised by neighbourhood children. The Tribunal was not persuaded that the appellant had a well-founded fear of persecution in India for any Convention reason.
The Federal Magistrates Court dealt with the grounds of the amended application of 22 November 2004. The grounds of appeal appear to bear little resemblance to the grounds of review that were before the Federal Magistrates Court. However, in view of the fact that the appellant is without legal representation, I shall address the grounds in the amended notice of appeal to this Court.
The first two grounds are without particularisation and lead nowhere. The assertion that the trial judge, which may have been intended as a reference to the Tribunal, erred in considering the real state of affairs in India is an invitation to re-assess the findings made by the Tribunal on the merits and there is no substance in that ground.
Notwithstanding the assertion that s 474 of the Act is ineffective, the High Court has said quite clearly that the section means what it says except to the extent that it is established that the Tribunal has fallen into jurisdictional error.
The next two grounds are also clear invitations to the Court to reassess the factual findings made by the Tribunal. I have summarised the findings of the Tribunal and it is clear that the Tribunal gave detailed attention to the claims made by the appellant and the evidence that he adduced in support of them. The assertion that the Tribunal did not consider the appellant’s documentary evidence is completely without particularisation. The Tribunal had no obligation to investigate documents provided by the appellant. Further, the Tribunal had no obligation to disclose to the appellant adverse country information that was not about the appellant himself.
The assertions made in the written submission are of the same nature, insofar as they are completely without particulars. The appellant made no attempt to justify the assertions that the Tribunal ignored the merits of his claim and did not act in good faith. Nor did the appellant make any attempt to indicate the relevant evidence that he says the Tribunal ignored. As I have said, the last few paragraphs of the submission make specific references to pages of the transcript and paragraphs of reasons. However, the appellant made no attempt to indicate what the nature of his complaint was. If anything, the references appear to be a further attempt to invite the Court to reach different factual conclusions on the evidence before the Tribunal.
There appears to be no substance at all in any of the grounds, or in the written submissions. It follows, in my opinion, that the appeal should be dismissed.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate:
Dated: 10 June 2005
The Appellant appeared in person Counsel for the Respondent: Mr GT Johnson Solicitor for the Respondent: Phillips Fox Date of Hearing: 26 May 2005 Date of Judgment: 26 May 2005
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