SZENN v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 643

FEDERAL COURT OF AUSTRALIA

SZENN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 643

MIGRATION – appeal from Federal Magistrates Court – no point of principle

SZENN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 349 OF 2005

TAMBERLIN J
SYDNEY
16 MAY 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 349 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	SZENN APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	16 MAY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the costs of the respondent.

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 349 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	SZENN APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	16 MAY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of Federal Magistrate Scarlett made on 16 February 2005, (“the Federal Magistrate”) dismissing an application for judicial review filed by the appellant and ordering the appellant to pay the respondent’s costs.  In the Notice of Appeal filed on 9 March 2005, the appellant relied on four grounds. 

2. The first ground was that the Federal Court had failed to meet claims by the appellant for his fear of persecution if returned to Turkey.  A fair reading of the decision of the Federal Magistrate clearly indicates his Honour dealt with the claims made by the appellant and, indeed, was conscious of the fact that the appellant did not have any legal representation.  The Federal Magistrate noted that because the appellant was not represented, the Court has a strong obligation to look carefully at his application and not to take an overly legalistic view of the language that he used in the application.  The Federal Magistrate then went on to deal with the nine grounds of review raised by the appellant and decided against the appellant in respect of each of these.  Given the Federal Magistrate’s consideration of the claims which were made, there is no substance in the appellant’s claim that the Federal Court, meaning the Federal Magistrates Court, failed to meet the claims of the appellant that he feared persecution if he returned to Turkey.

3. The second ground of appeal was that the appellant's political opinions and support of a leftist party caused many problems that were not considered carefully by the Federal Magistrates’ Court.  No details of this ground are provided and I am not satisfied that there is any substance in this allegation.

4. The decision of the Refugee Review Tribunal (“the Tribunal”) indicates a careful consideration of the claims made by the appellant and a detailing of these claims.  Accordingly, the decision covers the matters which were raised.  I can find no error in the decision of the Tribunal in this respect nor in the decision of the Federal Magistrate.

5. The third ground of appeal makes the simple allegation that the application should be allowed and natural justice be applied.  There are no details provided in relation to this ground.  While the Federal Magistrate did dismiss an application by the appellant for an adjournment, I am satisfied that there was no breach of natural justice because the Federal Magistrate gave reasons for dismissing the application, namely, that the appellant had failed to take any steps to obtain legal advice and he believed that there had been sufficient time for him to do so, even allowing for the fact that he was in immigration detention.  Accordingly, I am not persuaded that there is any substance in this ground.

6. The fourth ground of appeal is that the appellant would be persecuted and tortured on return to his own country.  No additional material has been put before me to substantiate this claim and there was no material before the Federal Magistrate which convinced his Honour, as a matter of fact, that this would be the case.  The Tribunal decided to the contrary and this is the body that is charged with the determination of the factual position.

7. Accordingly, I am not satisfied there is any substance in any of the grounds of appeal which have been raised. 

8. I should say that a facsimile in the order of 13 pages was sent to the Court by the appellant on 5 May 2005.  This facsimile includes a number of documents, none of which seem to be particularly related to the claim of the appellant.  However, included in these documents is a handwritten document from the appellant which simply details what he has done, his health, what he paid in fees to the Federal Court and certain conversations which he had.  There is nothing in this document which adds anything to the grounds of appeal which would justify any finding of any error or any jurisdictional error in the decision of either the Tribunal or the Federal Magistrate.  Included in the faxed papers was an extract from a newspaper in Turkish but I note that this newspaper was dated July 2003.  The Federal Magistrate referred to a newspaper article in his judgment and said that this had been taken into account.  In relation to the newspaper article, the Federal Magistrate noted that the appellant had been in Australia since January 2002 and his Honour could not see how a newspaper article written in 2003 could have assisted the appellant in his case before the Tribunal, as it had not been written at the time the Tribunal conducted its hearing.

9. The Tribunal accepted that the appellant was a national of Turkey and also accepted that in 1997, at the age of 17, he was detained and tortured by the police on suspicion of being involved in leftist political activities.  It was also accepted that on one occasion in 1982 he was detained overnight by the police.  The Tribunal accepted that both events occurred because, at that time, in the order of 20 years ago, the appellant was suspected of holding a particular political opinion.  The Tribunal took a number of countervailing factors into account, namely, that the appellant was employed at a printing firm for a further 12 years and was not detained during that period and, when he retired from that firm in 1994, he was engaged in business for seven years and was quite prosperous according to the evidence.  This was regarded by the Tribunal as being indicative of the fact that he was not in fear of persecution during that period.

10. It was noted by the Tribunal that the appellant had been able to exit from and enter Turkey on a total of five occasions and that he was issued with a valid passport in his own name in 1996, which was renewed in 2000.  These were regarded as being significant factors in determining the question of whether the appellant faced a real chance of persecution.  There was some dissatisfaction expressed by the Tribunal as to the explanations given by the appellant in relation to allegations that the authorities might wish to kill him after the death of a Ms Fenman.

11. Significant emphasis was placed by the Tribunal on country information, which was set out in detail in the decision, in forming the view that the appellant was not likely to be tortured or harmed in any way for a Convention reason if he returned to Turkey.

12. The view taken by the Tribunal was that the appellant had been determined to migrate to a western country for many years and did not have a well-founded fear of persecution.  At the hearing, the Tribunal was presented with a facsimile letter asserting that members of the security forces had come to the appellant’s home looking for him.  However, the Tribunal rejected the authenticity of this document on the basis that it was not possible to ascertain its source or establish with any certainty whether the claims in it were true.  It was pointed out by the Tribunal that the appellant had been willing to obtain fraudulent documents in order to obtain the Australian visa issued in Turkey.  The Tribunal was not satisfied that the appellant had been imputed with a political opinion in recent years in Turkey and for that reason was wanted by the authorities.  After taking these matters into account, the document was not given any weight by the Tribunal.

13. The Tribunal was not satisfied that there had been any change in circumstances since the departure of the appellant from Turkey, which could establish that there was any real chance of his being persecuted for a Convention reason.

14. In my view, no error has been demonstrated in the reasoning of the Tribunal or in the way in which it approached the evidence and decided the factual question of whether there was a real chance of persecution if returned.

15. For these reasons, I am not persuaded that any reviewable error has been established, with the consequence that the reasons of the Federal Magistrate have not been shown to be in error in any way.  Accordingly, I dismiss the appeal with costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:               24 May 2005

The Appellant appeared in person with the assistance of an interpreter.
Counsel for the Respondent:	J A C Potts
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	16 May 2005
Date of Judgment:	16 May 2005