SZHYV v Minister for Immigration and Citizenship

[2007] FCA 784

FEDERAL COURT OF AUSTRALIA

SZHYV v Minister for Immigration and Citizenship [2007] FCA 784

SZHYV v Minister for Immigration & Anor [2007] FMCA 341 upheld

SZHYV v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 565 OF 2007

GYLES J
16 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 565 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHYV
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GYLES J
DATE OF ORDER:	16 MAY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the costs of the first respondent.

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 565 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHYV
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GYLES J
DATE:	16 MAY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from the judgment of Driver FM given on 16 March 2007 (SZHYV v Minister for Immigration & Anor [2007] FMCA 341). This case, as with many similar cases, evokes sympathy because the appellant arrived in Australia on 13 February 1996, has lived here ever since and, so far as the evidence shows, nothing to his discredit has occurred in that time. It needs to be appreciated, however, that he did not lodge an application for a protection visa for more than two years after his arrival in Australia and, more importantly, the decision of the Refugee Review Tribunal (the Tribunal) about which he now complains was handed down on 17 August 2000. The application for judicial review of that matter was not filed until 23 December 2005. That delay in itself is a formidable barrier to this Court becoming involved in the matter. The learned Federal Magistrate who decided the case referred to that delay as unexplained. It was certainly not plausibly explained. He would have been inclined to refuse relief in the exercise of his discretion if a case had been established for relief.

2. However, the real problem which faces the appellant in the case is that the decision from which the appeal lies was a reasoned decision which dealt, in one sense, more than fairly with the issues raised before the Court, bearing in mind that it was necessary for the applicant in that case to establish jurisdictional error.  The application to the Federal Magistrates Court was general and did not isolate, in any acceptable form, jurisdictional error committed by the Tribunal tied back to the Tribunal’s decision.  Furthermore, the evidence in support of the application did not include a transcript of what occurred on the hearing which took place of the appellant by the Tribunal.

3. Nonetheless, Driver FM gave the appellant the benefit of the doubt and examined the various statements by the appellant as to his complaints about the Tribunal decision and procedures and, having done so, rejected them. As I have endeavoured to explain to the appellant, his task is to find an error of law or some other error in the Federal Magistrate’s decision which would give this Court a basis for allowing an appeal.

4. The grounds of appeal to this Court do not isolate any such error in a manner which enables the decision of the Federal Magistrates Court to be examined for that error.   The written submissions do not entirely accord with the notice of appeal and the oral submissions today by the appellant make clear that his real complaint is that he did not feel that he was able to present his position properly before the Tribunal because of his lack of literacy and education and general confusion.  None of this is surprising as the appellant has represented himself in the proceedings before the Federal Magistrates Court and in this Court.

5. I have had the benefit of detailed submissions on the part of the Minister which were completed prior to the appellant’s written submissions being received but which effectively respond to the substance of the matter.  First, I should say that all of the complaints of the appellant with regard to the conduct of the matter before the Tribunal were correctly rejected by the Federal Magistrate.  The only evidence before that Court was the record of the Tribunal and that indicates no failure to accord procedural fairness or any other defect.

6. I have read the Tribunal decision so far as the complaint that is made concerning the manner in which the Tribunal dealt with the ethnicity and citizenship of the appellant.  I have read the decision of the Federal Magistrate.  In my opinion, there is no basis at all upon which I can say that the Federal Magistrate fell into error when assessing this complaint.  It seems to me that the Tribunal was perfectly entitled to find that the appellant was of Nepalese ethnicity although born to Nepalese parents in Bhutan and that, although having lived in Bhutan for some time, he was entitled to Nepalese citizenship.  In any event, that was his habitual place of residence.  It was perfectly appropriate to judge the question of persecution upon his return to Nepal.  Indeed, that is the only basis that I can see that was put forward by the appellant.

7. Again, I can see no error in the manner in which the Federal Magistrate’s decision considered the treatment by the Tribunal of the contention that there would be well-founded fear of persecution on return to Nepal for a Convention reason.  Whatever one may feel about the human effect of having a party who has been in Australia as long as this appellant, being removed against his will, the reality is that there is no jurisdictional error disclosed in the Tribunal’s assessment of his case.  There is no appealable error shown in the way that Driver FM dealt with the case.  

8. I dismiss the appeal and order that the appellant pay the costs of the first respondent.

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

Associate:

Dated:        23 May 2007

The Appellant appeared in person
Counsel for the First Respondent:	Mr J Mitchell
Solicitor for the First and Second Respondents:	Blake Dawson Waldron
Date of Hearing:	16 May 2007
Date of Judgment:	16 May 2007