SZHQC v Minister for Immigration and Citizenship

[2007] FCA 305

FEDERAL COURT OF AUSTRALIA

SZHQC v Minister for Immigration and Citizenship & Anor [2007] FCA 305

Migration Act 1958 (Cth)

SZHQC v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2360 OF 2006

DOWNES J
7 MARCH 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2360 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHQC
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWNES J
DATE OF ORDER:	7 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 2360 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHQC
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWNES J
DATE:	7 MARCH 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is from India.  He is aged 41 years.  He arrived in Australia in September 2004 and applied for a protection visa.  He claimed a well-founded fear of persecution within the Refugees Convention on the grounds of his Muslim religion.  His application was refused on 21 July 2005 and that decision was affirmed by the Refugee Review Tribunal on 14 October 2005.  The appellant appealed to the Federal Magistrates Court.  His application was dismissed on 22 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 claimed to fear persecution by relatives of his Hindu wife.  The Tribunal, constituted by Ms L. Nicholls, did not accept that the appellant was married to a Hindu woman.  She found that the appellant was not a “truthful or credible witness” and that his evidence as to how the marriage was arranged and performed was “evasive and generalised” and “highly implausible”.  It followed that the Tribunal did not accept that the appellant feared persecution in consequence of what it held to be a fabricated marriage.

5. I would like to add that in coming to this conclusion the Tribunal was manifestly right.  I have not had the advantage of seeing, hearing or questioning the appellant when he was giving an account of his claims.  However, the appellant’s version of events is so inherently unlikely that it was almost certain to be rejected.  If the appellant is to be believed, for example, he met his wife in about 2000, went to Saudi Arabia almost immediately thereafter and worked there for four years, came back to India twice during that period but did not see the lady, left Saudi Arabia in about July 2004, having first procured a visa to visit Australia (issued in Dubai on 20 July 2004), married the lady on 24 August 2004, never lived with her and left India on 6 September 2004, barely two weeks after the marriage, arriving in Australia on 9 September 2004, leaving his wife in India.  He claims to fear persecution at the hands of his wife’s relatives.

6. 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.

7. The notice of appeal raises 13 grounds.  They are all generalised.  None of them contain any substance.  I will not address the general grounds which assert, for example, that the appellant satisfied the relevant criteria or that there was factual error by the Tribunal.  There is no basis for grounds asserting that the Tribunal member was biased, or did not properly apply her mind to the issues, or did not recognise the difficulties of the appellant or that he was in a confused state, or that he should have been given more time.  Some of these assertions involve serious criticisms.  They are all unfounded.  A claim that the Tribunal wrongly relied on third party sources is also unfounded.  It could only refer to country information and was entitled to do so even without disclosure. 

8. The appellant has filed no written submissions.  At the commencement of the hearing today I invited him to put any oral submissions in support of his appeal that he wished to put.  He declined to put any further submissions.  My reading of the decision of the Refugee Review Tribunal does not reveal any potential error of law not raised by the appellant.  In the court below Turner FM could find no error of law.  I 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 eight (8) 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:	A Mitchelmore
Solicitor for the First Respondent:	Blake Dawson Waldron
Date of Hearing:	7 March 2007
Date of Judgment:	7 March 2007