SZFOK v Minister for Immigration and Citizenship

[2007] FCA 302

FEDERAL COURT OF AUSTRALIA

SZFOK v Minister for Immigration and Citizenship & Anor [2007] FCA 302

Migration Act 1958 (Cth)

SZFOK v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2005 OF 2006

DOWNES J
5 MARCH 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2005 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZFOK
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWNES J
DATE OF ORDER:	5 MARCH 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS:

1.Amend the title of the first respondent to ‘Minister for Immigration and Citizenship’.

2.Appeal dismissed with costs.

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 2005 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZFOK
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWNES J
DATE:	5 MARCH 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This matter was listed for hearing at 2.15 pm today.  It is now 2.25 pm.  The appellant has been called outside the court by the officer but does not appear.  I have read the papers in this matter, particularly the decision of the Refugee Review Tribunal and the judgment of the Federal Magistrates Court, and it seems to me that the appropriate course, in the absence of the appellant, is that I now deal with the appeal on its merits. 

2. The appellant is from India.  He is aged 44 years.  He came to Australia in 2004.  In leaving India, he left behind his wife and children.  The appellant applied for a protection visa, claiming a well-founded fear of persecution within the Refugees Convention on the grounds of his religion as a Latin Catholic.  His application was refused on 16 September 2004 and that decision was affirmed by the Refugee Review Tribunal on 17 December 2004.  The appellant appealed to the Federal Magistrates Court.  His application was dismissed on 22 September 2006.  He appeals to this court against that decision. 

3. The Migration Act 1958 (Cth) commits the ultimate determination of the facts in refugee cases to the Refugee Review Tribunal. That Tribunal considers the matter afresh and on its merits. It is not a court. It substitutes its decision for that of the Minister, which is usually made through his delegate. The Parliament, representing the people, has thus created two tiers of decision-making during which an applicant for a protection visa has an opportunity to put forward a case on the facts.

4. The rights of persons claiming to be refugees in Australia do not, however, stop there.  For practical purposes there is a review of the decision of the Refugee Review Tribunal in the Federal Magistrates Court with an appeal to this court.  The appeal is, however, confined to an error of law amounting to jurisdictional error.

5. Behind every application for a protection visa lies a factual basis.  The factual basis in the present case is that the appellant, on the basis of his Christian religion, claimed to fear persecution by Muslim extremists.  The Refugee Review Tribunal, constituted by Mr S. Norman, was not satisfied that the appellant had a well-founded fear of persecution.  It came to this conclusion because even if the appellant might have had a well-founded fear of persecution in places in which he had previously lived, it found that the appellant could safely relocate, within India, to a place where he would not fear persecution, and that it was reasonable in all the circumstances to expect him to do so.

6. The Tribunal found that the basis for the appellant’s claimed fear of persecution was revenge by Muslim extremists with respect to injuries he had inflicted on a Muslim in early 2002 or mid 2003.  The Tribunal concluded that the appellant could safely relocate notwithstanding these claims.  It rejected a submission that the appellant would be tracked down wherever he might go. 

7. The reality of this case is that the appellant has lost it on the facts.  However, the only appeal relates to the law.  Accordingly, any appeal must address the law and not the facts, except in a small class of cases where errors of law relate to the facts.  This raises problems for the many appellants who are in a similar position to the present appellant.  However, if there is a relevant error of law an appeal will be successful.  Accordingly, I now turn to that question.

8. The notice of appeal contains the following un-particularised ground of appeal:

   The Federal Magistrate erred in law with the erred (sic) being a jurisdictional error taking a wrong approach and in failing to find that the Refugee Review Tribunal misunderstood this case of refugee in the Refugee Conventional (sic) and RRT erred in conducting than a refugee applicant.

9. It is apparent that the ground in the notice of appeal is completely generalised and contains no particulars.  The appellant has not filed any written submissions.  I must, accordingly, deal with this matter without any particular submissions from the appellant as to why, in a meaningful sense, it might be said that that decision of the Tribunal is affected by an error of law amounting to jurisdictional error.

10. In these circumstances I have read with care the decision of the Tribunal and the decision of the Federal Magistrates Court.  My reading of these decisions, particularly the decision of the Refugee Review Tribunal, does not suggest that there is any error of law.  I note that Nicholls FM could find no error of law.  I can see no error in that decision.  It follows that the appeal must be dismissed and will be dismissed with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Downes.

Associate: 
Dated:  12 March 2007

Counsel for the Appellant:	The Appellant did not appear
Counsel for the First Respondent:	M Allars
Solicitor for the First Respondent:	DLA Phillips Fox
Date of Hearing:	5 March 2007
Date of Judgment:	5 March 2007