SZFAK v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 237

FEDERAL COURT OF AUSTRALIA

SZFAK v Minister for Immigration and Multicultural and Indigenous Affairs
[2006] FCA 237

SZFAK AND SZFAL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 72 OF 2006

SACKVILLE J
16 MARCH 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 72 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZFAK
FIRST APPELLANT

SZFAL
SECOND APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

SACKVILLE J

DATE OF ORDER:

16 MARCH 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.   The appeal be dismissed. 

2.   The first appellant pay the first 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	NSD 72 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZFAK
FIRST APPELLANT

SZFAL
SECOND APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	SACKVILLE J
DATE:	16 MARCH 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of the Federal Magistrates Court given on 13 December 2005.  That Court dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘RRT’) which had affirmed a decision of a delegate of the first respondent (‘the Minister’) to refuse the appellants a protection visa.

2. The appellants are a married couple who are both citizens of Mongolia.  The second appellant is the wife of the first appellant and her claim to a protection visa rests on the success or otherwise of the first appellant’s application. 

3. The appellants arrived in Australia on 21 February 2004.  On 1 April 2004, they lodged an application for a protection visa, which was refused by the delegate on 16 April 2004. 

4. On 25 May 2004, the RRT received an application for review of the delegate’s decision.  The RRT wrote to the first appellant, advising him that it was unable to arrive at a decision in his favour on the material before it.  The first appellant was invited to attend a hearing on 7 September 2004.  He did so and gave oral evidence at that hearing.  On 7 October 2004, the RRT handed down its decision, which affirmed the delegate’s refusal to grant the appellants protection visas. 

5. The first appellant’s claims were set out in his application for a protection visa.  Those claims were repeated in his application to the RRT.  In substance, the first appellant claimed that he had become a member of a political organisation in Mongolia known as the New Leaders Club.  He claimed that he had become a very active member of that organisation and had been involved in agitation against Communists from the Mongolian People’s Revolutionary Party (‘MPRP’).  The first appellant said that he had attempted to expose the corruption and ‘criminal structures’ of the MPRP.

6. According to the first appellant, in consequence of his political activities, he was interrogated by the local police and kept in detention overnight ‘in terrible conditions’.  He claimed that he had been warned by fellow members of the Club that he, along with others, might face serious problems if they continued their agitation against the Communists. 

7. The RRT did not accept the first appellant’s claim that he had experienced harm in the past from the authorities in Mongolia by reason of his political activities.  Nor did the RRT accept that he would face harm from the authorities on his return to Mongolia by reason of those political opinions.  The RRT explained its reasons as follows:

   ‘The [RRT] considers that the [first appellant’s] description of his political activities and his political beliefs as set out in his written submissions and as stated in his oral evidence were somewhat general, non-specific and lacking in detail.  While the [RRT] accepts that the [first appellant] may have democratic sentiment and may be opposed to the MPRP and spoke with work mates against the communist government as well as helping women and children, the [RRT] does not consider it plausible that this level of political involvement would result in the [first appellant] coming to the attention of political opponents or government authorities who then detained him for reasons of his political opinion.’

   The [RRT] further considers that this claim is implausible in light of the country information (outlined above and discussed with the [first appellant] at the hearing) which indicates that a large number of political parties of a democratic persuasion and in opposition to the MPRP successfully and freely contested the elections in June 2004 and that there were no reports of political arrests or disappearances.

   In the light of the foregoing the [RRT] does not accept that the [first appellant’s] democratic views or his dislike of the MPRP or his low level political involvement resulted in any adverse attention from the authorities of Mongolia.

   In addition given that Mongolia now has a Coalition government made of Democratic parties which the [first appellant] claimed to support, the [RRT] does not accept that the [first appellant] faces any harm from the authorities of Mongolia on his return there by reason of his political opinion or activities.’

8. It should be noted that the RRT also recorded that the first appellant’s adviser had conceded at the hearing held on 7 September 2004 that, given the election results, ‘perhaps the [first appellant] did not have [sic] real danger on returning to Mongolia’. 

9. The Magistrate, after reciting the reasons of the RRT, observed that the amended application filed by the first appellant simply followed a precedent and did not assist his case in any way.  His Honour also recorded that the first appellant’s oral arguments were of the same character. 

10. The Magistrate concluded that no error had been demonstrated in the procedures followed by the RRT or in its reasoning.  Accordingly, in the absence of any jurisdictional error, the application for judicial review had to be dismissed.

11. The notice of appeal filed in this Court does not identify anything that can be described as a ground of appeal.  The first appellant did not file any written submissions in support of his appeal.  His oral submissions did not identify any basis upon which it could be said that the Magistrates Court erred in concluding that there was no basis for judicial review of the RRT’s decision.  Nor has the first appellant put anything that would suggest that the RRT committed a jurisdictional error in affirming the delegate’s decision.

12. The appeal must be dismissed.  The first appellant must pay the Minister’s costs of the appeal.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated:            16 March 2006

The appellant appeared in person
Solicitor for the First Respondent:	Clayton Utz
Date of Hearing:	16 March 2006
Date of Judgment:	16 March 2006