SZEOS v Minister for Immigration and Multicultural Affairs

[2006] FCA 149

FEDERAL COURT OF AUSTRALIA

SZEOS v Minister for Immigration & Multicultural Affairs

[2006] FCA 149

SZEOS V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NSD 2199 OF 2005

STONE J
22 FEBRUARY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2199 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZEOS FIRST APPELLANT
SZEOT SECOND APPELLANT
SZEOU THIRD APPELLANT
AND	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS FIRST RESPONDENT
REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	22 FEBRUARY 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The first and second appellants are to pay the 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 2199 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZEOS FIRST APPELLANT
SZEOT SECOND APPELLANT
SZEOU THIRD APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS FIRST RESPONDENT
REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGE:	STONE J
DATE:	22 FEBRUARY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from the judgment of a Federal Magistrate delivered on 28 October 2005 dismissing an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’).  The Tribunal had affirmed a decision of a delegate of the first respondent refusing to grant the appellants protection visas.

   Background

2. The appellants, husband, wife and child, are citizens of India.  They arrived in Australia on 8 March 2004 and on 27 May 2004 lodged applications for protection visas.  Only the husband (the first appellant) made specific claims under the Refugee Convention – the other appellants relied on their membership of his family.  For present purposes it is sufficient to note that the first appellant claimed to have a well-founded fear of persecution arising from his wife’s family’s violent objections to him being a member of a different caste or culture group. 

The Tribunal’s decision

1. The Tribunal did not accept the appellants’ evidence that they left India because they feared serious harm from the wife’s family or that they could not return to India because of this fear.  In particular, the Tribunal considered that the first appellant’s claim to fear for his own safety and for that of his immediate family was inconsistent with his conduct in the relevant period and the conduct of the second appellant.  The Tribunal noted that in the period following his marriage the first appellant made four trips to Australia and returned several times to live in or near Mumbai where the wife’s family lived.  The Tribunal also did not accept that the wife’s family was likely to harm her or to bring a false felony charge against the first appellant if the appellants were to return to India.

2. Accordingly the Tribunal was not satisfied that the appellant had a well-founded fear of persecution within the meaning of the Convention and affirmed the decision of the first respondent’s delegate.

   Review in the Federal Magistrates Court

3. Before the Federal Magistrate, the appellant essentially sought to challenge the merits of the Tribunal’s decision.  His Honour reviewed the Tribunal’s decision in the context of the material in the Court book, noting that in the case of an unrepresented litigant the Court should take particular care in doing so.  His Honour found that the Tribunal reached its decision on the evidence before it and that the reasoning set out in the Tribunal’s decision did not disclose any legal error in the decision making process. 

   This appeal

4. On 15 November 2005 the appellants filed a notice of appeal in this Court.  The notice of appeal contained submissions but no grounds of appeal and on 7 December 2005 I ordered that the appellants file and serve an amended notice of appeal stating the grounds of appeal and relevant particulars.  On 23 January 2006 the appellants filed a document headed ‘Submissions Amendment Letter’, which appears to be an attempt to comply with my order.  This document suffers from the same defects as its predecessor with one possible exception.

5. Both the notice of appeal and the document headed ‘Submissions Amendment Letter’ challenge the merits of the Tribunal’s decision.  However, the final paragraph in the document headed ‘Submissions Amendment Letter’ could be construed as a claim that the Tribunal made a jurisdictional error in failing to find that the second appellant suffered ‘serious harm’ when locked up by her family and burnt on the hand.  If this was intended then the claim involves a misunderstanding of the Tribunal’s decision.

6. It seems clear that the Tribunal made a finding of fact that the event in question did not actually occur, rather than a finding that the conduct occurred but was not sufficiently serious to constitute ‘serious harm’ as required under s 91R of the Migration Act 1958 (Cth). The Tribunal stated that it did not accept:

   ‘…that the applicant’s wife suffered serious harm from her family while she was in India; nor is there any evidence that the child suffered harm or was threatened in any way after he was born.’

7. The Court does not have jurisdiction to review the Tribunal’s findings of fact.  The appellants have failed to demonstrate any reviewable error in the decision of the Tribunal and accordingly the appeal must be dismissed with costs.  As the third appellant is an infant it is appropriate that costs be awarded only against the first and second appellants.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:             27 February 2006

The Appellant appeared in person
Counsel for the First Respondent:	Ms S Mason
Solicitor for the First Respondent:	Phillips Fox
Date of Hearing:	22 February 2006
Date of Judgment:	22 February 2006