SZHJZ v Minister for Immigration and Citizenship

[2007] FCA 1843

FEDERAL COURT OF AUSTRALIA

SZHJZ v Minister for Immigration and Citizenship [2007] FCA 1843

SZHJZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 1717 OF 2007

EDMONDS J
28 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1717 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHJZ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EDMONDS J
DATE OF ORDER:	28 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s 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 1717 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHJZ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EDMONDS J
DATE:	28 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an appeal from the Federal Magistrates Court (Nichols FM) (SZHJZ v Minister for Immigration and Citizenship [2007] FMCA 1184) dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) affirming a decision of a delegate of the first respondent (the Minister) to refuse to grant the appellant a protection visa.

   BACKGROUND

2. The appellant is a citizen of India.  He arrived in Australia on 10 October 2002.  On 17 November 2003, he lodged an application for a protection visa with the Department of Immigration and Citizenship.  On 9 December 2003 a delegate of the Minister refused to grant him a protection visa.  On 13 January 2004, the appellant applied for a review of that decision to the Tribunal.  After an earlier decision of the Tribunal was set aside by consent by Hill J on 27 June 2005 (on appeal from SZDSB v Minister for Immigration and Citizenship [2005] FMCA 203 (Smith FM)), the Tribunal held a hearing on 2 September 2005, and handed down its decision on 27 September 2005.

   THE APPELLANT’S CLAIM

3. The appellant claimed to fear persecution in India for reason of his race and political opinion.  He claimed to be a Sikh from the Punjab employed as a truck driver, and to have been assaulted in 1989 by anti-Sikh Hindus; arrested, beaten and tortured by police in 1995 after being stopped at a checkpoint with suspected terrorists in his truck; and charged with election-related violence in 1999.  He claimed to have gone to Botswana in November 1999 and to have been in hiding when he returned to India for two months in July 2000, and again in October – November 2002.

   THE TRIBUNAL’S DECISION

4. The Tribunal did not accept any of the appellant’s claims of past harm, but even assuming the 1989 and 1995 incidents had occurred, found that they were one-off events which did not indicate any well founded fear of persecution.  Indeed the Tribunal found, on the basis of the appellant’s failure to leave India at the time of either incident, that he did not then even have a genuine fear of persecution.  Moreover the Tribunal found the 1995 incident, even assuming it had occurred, was not motivated by a Convention reason, as the police were looking for criminals.  Finally the Tribunal rejected the claim that the appellant feared outstanding charges, noting his voluntary return to India in 2000 and 2002 and the fact that on his own evidence his family (including his father) remained in their home village.  The Tribunal also found that if, contrary to its findings, the appellant did have problems in his local area then relocation within India was reasonable.

5. These are factual conclusions that were open for the reasons the Tribunal gives.  The Court cannot review the merits of the Tribunal’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, and there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137].

   THE FEDERAL MAGISTRATES COURT

6. Before his Honour the appellant relied on an amended application. Ground 1 of the amended application does not assert any ground of review of the Tribunal’s decision and ground 2, as his Honour held at [12], on any plain reading, seeks review of the merits of the Tribunal’s decision. Grounds 2(a) and 7 claimed, but did not establish, bias by the Tribunal and were correctly dismissed by his Honour at [13] – [15]. Ground 3 claimed a breach of s 424A of the Migration Act 1958 (Cth) (the Act) but, as his Honour held at [17] – [19], did not identify any information falling within s 424A(1). Ground 4 refers to the previous Tribunal decision being set aside but does not identify any error in this Tribunal’s decision. Ground 5 sought merits review, as his Honour held at [27]. Ground 6 appeared to be a complaint concerning the Tribunal’s failure to inquire, and fails for the reasons his Honour gives at [28].

7. His Honour also dismissed complaints raised by the appellant at the hearing (although not pleaded in the amended application) concerning the Tribunal’s use of country information: [29]; what appeared to be a complaint of failure to comply with s 425: [20], [30] – [31]; and concerning interpretation at the Tribunal hearing: [33] – [37]. Finally his Honour found that even if, contrary to his Honour’s conclusions, there had been an error by the Tribunal, its relocation finding was an independent basis for its decision: [32].

8. The Minister submitted that his Honour’s decision comprehensively addresses the issues and incorporates his submissions; they were all accepted by his Honour.

   THE APPEAL TO THIS COURT

9. The notice of appeal does not properly particularise any error by his Honour and at most repeats the claims that failed before his Honour without explaining why his Honour was wrong.  I agree with the Minister’s submission that there is no case to answer on appeal.

   CONCLUSION

10. The appeal must 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 Edmonds.

Associate:

Dated:        28 November 2007

Solicitor for the Appellant:	The appellant appeared in person
Counsel for the First Respondent:	Mr T Reilly
Solicitor for the Respondents:	Australian Government Solicitor
Date of Hearing:	20 November 2007
Date of Judgment:	28 November 2007