SZFSP v Minister for Immigration and Citizenship

[2007] FCA 303

FEDERAL COURT OF AUSTRALIA

SZFSP v Minister for Immigration and Citizenship & Anor [2007] FCA 303

Migration Act 1958 (Cth)

SZFSP v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2323 OF 2006

DOWNES J
6 MARCH 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2323 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZFSP
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWNES J
DATE OF ORDER:	6 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 2323 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZFSP
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWNES J
DATE:	6 MARCH 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is from India.  He is aged 32 years.  He arrived in Australia in August 2004.  In leaving India, he left behind his wife and children.  He applied for a protection visa claiming a well-founded fear of persecution within the Refugees Convention on the grounds of his political opinion, namely, that he had been a member of the Left Democratic Front (LDF).  His application was refused on 16 September 2004 and that decision was affirmed by the Refugee Review Tribunal on 17 January 2005.  The appellant appealed to the Federal Magistrates Court.  His application was dismissed on 14 November 2006.  He appeals to this court against that decision.

2. 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.

3. 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.

4. 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 former membership of the LDF, claimed to fear persecution by members of the Indian National Congress (INC).  Before the Tribunal, the appellant gave evidence that in September and December 2003 he was harassed and attacked by members of the INC.  He allegedly received no assistance from police in relation to his complaints and therefore took matters into his own hands and attacked the local INC party leader in December 2003.  He escaped to Singapore for two weeks after this incident but returned to Kerala at the end of January 2004.  On his return he did not rejoin the LDF.  He was again attacked by INC members in February 2004 and relocated to Madras before coming to Australia.  The Tribunal, constituted by Ms Sue Zelinka, held that the appellant’s fears arose from personal conflict with the local INC party leader, not because of Convention reasons.  It found that the harm he suffered was not “of a type or severity that can rightly be called persecution, nor is state-sponsored or even state-tolerated”. 

5. 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.

6. The notice of appeal raises the following grounds:

   1.        The Learned Federal Magistrate has dismissed the case without considering the legal and factual error in the decision of the Refugee Review Tribunal.

   2.        The appellant has not been provided with a copy of the judgment of Federal Magistrate Emmett FM dated 14 November 2006. The appellant has also not received the order and the reasons for the Judgment.

   3.        The appellant seeks permission to file additional grounds when he gets the judgment and order on hand.

7. The appellant has since received the reasons for judgment together with the orders of the Federal Magistrates Court but no amended grounds of appeal have been filed.  The appellant appeared before me this morning.  I asked him if he wished to seek leave to file any additional grounds.  He said he did not.  I invited the appellant to address the court by putting oral submissions in support of the appeal.  He told me that the decision of the Tribunal and the decision of the Federal Magistrates Court were wrong.  Not surprisingly, considering that the appellant is unrepresented, he did not articulate any legal grounds of appeal.

8. I have some concern with the Tribunal’s finding that the harm suffered by the appellant was not of sufficient severity to amount to persecution.  The appellant says he was hospitalised.  If such conduct is State-sponsored, it would ordinarily create a sufficient threat for a claim of fear of persecution to be made out.  However, the Tribunal rejected the appellant’s claim on two additional and alternative grounds.  They were:

   1.        any fear arose from personal conflict and was not Convention-based, whether the claimed ground be characterised as political opinion or religion; and

   2.        any potential persecution was neither State-sponsored nor State-tolerated. 

   As to the first of the above, I note that the appellant claimed that the conflict commenced when representatives of the INC demanded a donation.  It did not commence as a result of conduct directed to the fact that the appellant was a member of the LDF. 

9. My reading of the decisions of the Refugee Review Tribunal and the Federal Magistrates Court does not reveal any potential error of law.  Emmett FM could not find any error of law after analysing eight grounds put before her.  I have read the whole of her reasons for decision and I can find no error in her treatment of the appeal.  It follows that the appeal must be dismissed and will be dismissed with costs. 

I certify that the preceding nine (9) 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 appeared in person with the assistance of a Malayalam interpreter
Counsel for the First Respondent:	S Sirtes
Solicitor for the First Respondent:	Sparke Helmore
Date of Hearing:	6 March 2007
Date of Judgment:	6 March 2007