SZFVD v Minister for Immigration and Multicultural Affairs

[2006] FCA 1678

FEDERAL COURT OF AUSTRALIA

SZFVD v Minister for Immigration and Multicultural Affairs & Anor
[2006] FCA 1678

Migration Act 1958 (Cth)

SZFVD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS & ANOR

NSD 1632 OF 2006

DOWNES J
22 NOVEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1632 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZFVD
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWNES J
DATE OF ORDER:	22 NOVEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.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 1632 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZFVD
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWNES J
DATE:	22 NOVEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

DOWNES J:

1. The appellant is an Indian Muslim from Dharmabad in the Nanded District of Maharasthtra State.  In 1997 he married a Hindu.  His wife’s family did not approve of the relationship.  Before the marriage, members of the wife’s family and some community people attacked the appellant who was hospitalised.  After their marriage, the appellant and his wife went to live in Puna, some nine hours by train from Dharmabad but still in Maharasthtra.  In late 1998 the appellant and his wife moved to Nanded City which is two and a half hours by train from Dharmabad.  At the time, the wife was shortly to give birth to a child.  The appellant apparently lived at Nanded City for nearly six years before coming to Australia alone.  His wife and children remain in Nanded City.  During his time in Nanded City, the appellant was threatened by his wife’s family and members of the local Hindu community. 

2. The appellant was denied a protection visa by the delegate of the Minister for Immigration and Multicultural Affairs and sought review by the Refugee Review Tribunal.  The Tribunal, constituted by Mr S Norman, accepted that the above facts were established.  However, he considered that the appellant could “safely relocate within India to a place more distant to his wife’s family than Nanded City and where he would not be the subject of harassment (howsoever described), by his wife’s family or members of the Hindu community.”  The appellant also claimed to fear persecution, no doubt on the basis of his religion or membership of a social group, merely because he was a member of India’s Muslim minority and particularly because he had married a Hindu.

3. After reviewing the material and evidence before him, including the fact that the appellant gave no evidence of harassment while they lived in Puna, the Tribunal concluded that there was no more than a remote chance of the appellant being susceptible to Hindu-Muslim violence.  The Tribunal concluded that the appellant could relocate in India in a way in which he would not have a real chance of being persecuted for a Convention reason.  The Tribunal went on to find that it would be reasonable to expect the appellant to safely relocate within India.

4. The appellant has not filed written submissions.  He declined to put oral submissions to me when I invited him to do so.  However, the Notice of Appeal to this court contains three grounds which may be summarised as follows:

   (1)Failing to find jurisdictional error or denial of natural justice;

   (2)Denying the misapplying the law [sic]; and

   (3)Violating the duty it was under in satisfying itself as to the applicant’s eligibility for a protection visa.

These grounds are similar to the grounds relied upon before the Federal Magistrate. 

1. The Parliament of Australia, representing the people of Australia, through the Migration Act 1958 (Cth) has conferred upon applicants for protection visas two opportunities to present their cases on the facts. The first is to the Minister, usually through a delegate. The second is to the Refugee Review Tribunal. Neither opportunity involves a court. The second opportunity is a completely fresh start. The Tribunal considers the whole matter, its facts and its merits, quite separately from the consideration of the Minister’s delegate. If an applicant succeeds at either level, a protection visa will be issued. Thereafter, unsuccessful applicants can invoke the power of the courts but only by way of judicial review for error amounting to jurisdictional error. Their opportunities for full reconsideration of their claims have concluded.

2. This is an appeal from such an application which was unsuccessful.  There is no available ground in an application before the Federal Magistrates Court or in an appeal to this court that the facts were wrongly found or that the Tribunal wrongly dealt with the merits.  A denial of natural justice or procedural fairness will generally support an application for judicial review.  So may a misapplication of the law or the violation of the duty which the Tribunal is under.  The problem in this case is that the appellant has not specified any particulars upon which he relies and my reading of the material does not disclose any.  Violating the duty the Tribunal was under in assessing the facts might lead to jurisdictional error but a mere allegation that the facts were wrongly found will not. 

3. There were some particulars of the grounds furnished in the Federal Magistrates Court.  However, they were still not specific.  It was alleged, for example, that the Tribunal failed to make a proper disclosure of adverse information but the information or the document in which it was contained was not identified.  I have read the reasons of Lloyd-Jones FM for dismissing the application.  They deal with each of the particulars which appear in the application in that court.  The Federal Magistrate considered whether there might have been grounds not raised which might have been sustained.  In each case the Federal Magistrate determined the question in the negative.  I agree with Lloyd-Jones FM’s conclusions and his reasons. 

4. The problem with this matter, as with many such appeals, is that the appellant seeks a reconsideration of his case afresh and particularly as to the findings of fact on which the decision was based.  The appellant has had two opportunities to address the matter on the merits and he was unsuccessful in both.  The matter before me is an appeal from an application for judicial review.  In cases such as the present, that requires jurisdictional error.  There is no jurisdictional error in the decision of the Tribunal and no error of law in the decision of the Federal Magistrates Court.  The appeal must be dismissed and will be dismissed with costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Downes.

Associate:

Dated:       22 November 2006

The appellant appeared in person.

Counsel for the Respondents:	Mr A Cox
Solicitor for the Respondents:	Phillips Fox Lawyers
Date of Hearing:	22 November 2006
Date of Judgment:	22 November 2006