SZIFF v Minister for Immigration and Citizenship

[2007] FCA 658

FEDERAL COURT OF AUSTRALIA

SZIFF v Minister for Immigration and Citizenship [2007] FCA 658

SZIFF v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 273 OF 2007

BRANSON J
30 APRIL 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 273 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIFF
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BRANSON J
DATE OF ORDER:	30 APRIL 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The name of the first respondent be changed to Minister for Immigration and Citizenship.

2.The appeal be dismissed.

3.The appellant pay the first respondent’s costs fixed in the sum of $1 890.00. 

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 273 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIFF
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

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

REASONS FOR JUDGMENT

INTRODUCTION

1. The appellant, a citizen of India, arrived in Australia on 13 July 2005. He claims that he left India and fears to return there because he was persecuted by upper class Hindus and others because he is of a lower caste.  His claim for a protection visa was rejected by a delegate of the then Minister for Immigration and Multicultural and Indigenous Affairs and, on review of the delegate’s decision, by the Refugee Review Tribunal.

2. The appellant sought review of the Tribunal’s decision in the Federal Magistrates Court.  In his reasons for judgment,  the learned Federal Magistrate summarised the grounds raised by the appellant in his amended application to that court, his written submissions and at the hearing as follows (see SZIFF v Minister for Immigration & Anor [2007] FMCA 106 at [12]-[14]):

   (a)the Tribunal failed to take into consideration the fact that the appellant was an active member of a social group persecuted by another social group, and had been arrested, detained, kidnapped and bashed in the past;

   (b)the Tribunal failed to take into account that the authorities of his country gave him no protection but were working under the direct control of the persecuting social group;

   (c)the Tribunal failed to make findings in relation to the appellant’s claims of persecution and the connivance of state authorities, in particular, whether or not these events might occur again and whether or not the appellant had a well-founded fear of persecution on the basis of these claims;

   (d)the Tribunal did not consider the issues submitted by the appellant;

   (e)the Tribunal erred by not correctly applying the proper test for, or definition of, ‘refugee’; and

   (f)the Tribunal should have taken account of the fact that his passport had been issued in Goa, rather than in his home state of Haryana.

3. The Federal Magistrate considered each of the above grounds in turn and found that the appellant had failed to demonstrate jurisdictional error on the part of the Tribunal.  His Honour dismissed the application.

   ISSUES ON APPEAL

4. The notice of appeal filed in this Court does not identify any error on the part of the Federal Magistrate.  Rather, it states that the decision of the Tribunal was affected by jurisdictional error in that it failed to comply with its obligations pursuant to the Migration Act 1958 (Cth) and denied the appellant procedural fairness, and that the Tribunal committed procedural and legal errors in the appellant’s case.

5. In an affidavit filed on the same day as the notice of appeal the appellant refers to the above alleged errors of the Tribunal and states that the learned Federal Magistrate also ‘overlooked the legal error’ committed by the respondents.  As this is an appeal from a judgment of the Federal Magistrates Court, I will proceed on the basis that the appellant asserts that the Federal Magistrate erred in failing to find error on the part of the Tribunal in the ways alleged in the notice of appeal.

6. The written submissions filed by the appellant in this Court appear to be seeking review of the merits of the decision that he is not entitled to a protection visa.  It is not open to this Court to review on the merits the decision that the appellant is not entitled to a protection visa.  It must be noted, however, that the Tribunal, after advising the appellant that it had considered the material before it but it could not be satisfied on the papers of his entitlement to a protection visa, invited him to attend a hearing.  The appellant advised the Tribunal that he did not wish to attend that hearing. 

7. The Tribunal rightly identified that the issue for its determination was whether it was satisfied that the appellant had a genuine fear founded upon a real chance of persecution for a Convention reason if he returned to India.  Although satisfied that the appellant was a national of India the Tribunal was not satisfied of other critical matters.  The reason that the Tribunal was not so satisfied was that it found the appellant’s claims to be essentially untested assertions that were unclear and lacking in detail in important respects.  The Tribunal noted, for example, that although the appellant claimed that he formed a social committee to uphold the rights of low caste Hindus and launched protest rallies he gave no details of when and where these events took place and over what period of time he was involved with the committee.  The Tribunal also noted that although the appellant claimed to have been bashed, that there were many false cases against him and that he had been confined illegally and persecuted many times, he gave no details of times, places or of how many times these events occurred or the nature of the false cases.  Nor did he explain how he secured his release from illegal confinement.  The Tribunal further noted that the appellant did not explain how, if there were false cases against him, he managed to leave India legally through Delhi airport travelling on a passport in his own name. 

8. The Tribunal was denied the opportunity to seek the further details that it considered necessary because of the appellant’s failure to attend, when invited, the hearing that the Tribunal scheduled for him.  It is against that background that the complaints about the Tribunal’s decision must be understood. 

9. When asked to particularise today how the Tribunal failed to comply with its obligations under the Act, the appellant alleged that the Tribunal did not look at his personal circumstances although he had provided newspaper cuttings.  He claimed that the newspaper cuttings were not considered properly by the Tribunal.  It is plain from the passage from the Tribunal’s reasons for decision to which I have already referred that the complaint that the Tribunal did not look at the appellant’s personal circumstances cannot be substantiated.  The Tribunal looked carefully at the claims advanced by the appellant concerning his personal circumstances but found they lacked sufficient detail for it to be satisfied that the appellant had a well-founded fear of persecution in India.  Nor is there any reason to question the accuracy of the assertion made by the Tribunal in its letter inviting the appellant to a hearing that it had considered the material before it in relation to his application. 

10. The appellant’s complaint that the Tribunal denied him procedural fairness is plainly inconsistent with the events which took place in this case.  The Tribunal advised the appellant that the written material was insufficient for it to be satisfied that he was entitled to a protection visa and invited him to attend a hearing but he declined to do so. 

11. In support of his complaint that the Tribunal made procedural and legal errors the appellant referred to the Tribunal’s consideration of whether or not he could relocate to achieve safety in India.  The Tribunal’s decision that it was open to the appellant to relocate was not critical to its decision that he was not entitled to a protection visa.  It was therefore unnecessary for the Federal Magistrate to consider, and it is unnecessary for this Court to consider, the basis upon which the Tribunal determined that it was open to the appellant to relocate in India.

    CONCLUSION

12. The Tribunal was not satisfied that the appellant faced a real chance of persecution on a Convention ground in his home state in India.  For the above reasons I am not satisfied that any error attends the decision of the learned Federal Magistrate to dismiss the application for judicial review of the decision of the Tribunal. 

13. The appropriate order is that the appeal be dismissed.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:        4 May 2007

Counsel for the Appellant:	The appellant appeared in person.
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	30 April 2007
Date of Judgment:	30 April 2007