SZIER v Minister for Immigration and Citizenship

[2007] FCA 611

FEDERAL COURT OF AUSTRALIA

SZIER v Minister for Immigration and Citizenship [2007] FCA 611

SZIER and SZIES v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 2535 OF 2006

RYAN J
30 APRIL 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	2535 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIER
First Appellant

SZIES
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

RYAN J

DATE OF ORDER:

30 APRIL 2007

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.That the name of the first respondent be amended to read Minister for Immigration and Citizenship.

2.The appeal be dismissed.

3.The appellants pay the first respondent’s costs, to be taxed in default of agreement.

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	2535 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIER
First Appellant

SZIES
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RYAN J
DATE:	30 APRIL  2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from orders of the Federal Magistrates Court constituted by his Honour Smith FM.  Those orders were made on 5 December 2006 and were that;

   ‘(1)     The application is dismissed;

   (2)The applicants must pay the first respondent’s costs in the sum of $5000.’

2. The learned Federal Magistrate reviewed the proceedings before the Refugee Review Tribunal (“the Tribunal”) and concluded, although accepting the truthfulness of the appellants’ account, that the appellants had been, essentially, the victims of economic oppression and did not have a well-founded fear of persecution by reason of one of the grounds specified in the Refugees Convention. 

3. The notice of appeal, which was filed on 22 December 2006 recites the following grounds;

   ‘(1)The Honourable Federal Magistrates Court erred in interpreting the construction of s 424A(3)(a) of the Migration Act 1958 “(the Act”).

   (2)His Honour failed to determine that the purpose of s 424A was not served at the event a consideration on s 424A(3)(a) was given.

   (3)The Honourable Court also erred in law determining that the Refugee Review Tribunal, (“the Tribunal”) was in a breach of procedural fairness;

   (4)His Honour failed to interpret the meaning of convention according to law.

   (5)His Honour failed to deal with the construction of s 422B as per claimed by the applicant;

   (6)His Honour failed to find an error of law in the decision of the tribunal.’

4. Accordingly, the appellants sought an order that the orders of the Federal Magistrates Court be set aside, the decision of the Tribunal be quashed and the matter be remitted to the Tribunal for further consideration according to law. 

5. An order was made by Deputy Registrar Farrell on 22 January 2007 which made provision for the preparation of an appeal book to be filed and served by the Minister for Immigration and Citizenship (“the Minister”).  That apparently was done and the appeal book was, I infer, filed and served within the time stipulated by the Deputy Registrar as fifteen clear working days before the hearing date.  The same order directed that the appellants file and serve written submissions no later than five clear working days before the hearing date unless otherwise directed.  The appellants failed to comply with that direction, although it is clear from a copy of a letter from the Court dated 29 March 2006 which they produced today, that they had been apprised of, at least of the existence of directions by the Registrar and could have learned, if they did not already know, of the need to file written submissions.  Despite the absence of written submissions from the appellants, the first respondent, the Minister, has prepared a detailed outline of submissions which I have read and which analyses the history of the matter and the basis of the reasons for judgment of the Federal Magistrates Court. 

6. Section 424A of the Migration Act 1958 (Cth) (“the Act”) imposes an obligation on the Tribunal to give to an applicant particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review. I have not been able to discern any information of that character which the Tribunal was obliged, in the circumstances of this case, to give to the appellants.

7. The essence of the appellant’s case before the Tribunal was that the male appellant had been conducting a business connected with the sale or treatment of photographic supplies.  His competitors in that business had lowered their prices to a point below an economic level and, as a result, he had been unable to pay the laboratory from whom he had obtained supplies.  No part of that account suggests persecution for a Convention reason and the absence of a fear of any such persecution was essentially the basis of the learned Federal Magistrate’s decision.

8. I have examined his Honour’s reasons for that decision, with the assistance of the outline that has been furnished on behalf of the Minister, and I have been unable to discern any appealable error in those reasons.  The appellants were afforded an opportunity today to make oral submissions in support of the appeal today.  In substance, the submissions which they did make reiterated the problems which the male appellant had encountered in India as a Hindu from, as I infer, customers or other persons who belonged, as he said, to “the Muslim party”.  He also voiced again his fear that those problems would be increased in the event of his return to India.  He rehearsed the evidence which he had given before the Tribunal, which, as I have said, had been accepted by it, that he had been subjected to physical mistreatment and had been the victim of theft.  The principal act of physical mistreatment involved his having been thrown from a moving train.  He emphasised that, since those incidents, he had suffered from numerous physical and psychological disabilities and that he would like to present medical evidence in support of these claims. 

9. The appellants also reiterated, in the course of their submissions today, that the Indian police had made requests for money or bribes when their protection had been sought from those who were claimed to have been oppressing the appellants.  Those accounts were essentially the same as had been considered by the Tribunal and on application to the Federal Magistrates Court for review of the Tribunal’s decision.  As I have said, the Tribunal essentially accepted the veracity of the claims but found itself unable to find in them support for imputing to the appellants, particularly the male appellant, a well-founded fear of persecution for a Convention reason. 

10. As I have been unable to discern any error of law in the Tribunal’s treatment of the matter, and as the appellants have failed to make out their assertion that there has been some non-compliance with s 424A of the Act or some other denial of procedural fairness, it follows that the appeal must be dismissed. The order of the Court, therefore, is that the appeal 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 Ryan.

Associate:

Dated:        2 May 2007

The appellants appeared in person
Counsel for the First Respondent:	Mr A Markus
Solicitor for the First Respondent:	Australian Government Solicitor
Date of Hearing:	30 April 2007
Date of Judgment:	30 April 2007