SZIJE v Minister for Immigration and Citizenship

[2007] FCA 2031

FEDERAL COURT OF AUSTRALIA

SZIJE v Minister for Immigration and Citizenship [2007] FCA 2031

SZIJE v Minister for Immigration & Anor [2007] FMCA 957

SZIJE v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1301 OF 2007

BUCHANAN J
20 DECEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1301 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIJE
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	20 DECEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is 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 1301 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIJE
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE:	20 DECEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

1. The appellant is a citizen of India.  He arrived in Australia on 28 July 2005.  On 4 August 2005 he applied for a protection (Class XA) visa.  On 15 September 2005 a delegate of the Minister refused his application.  On 13 October 2005 he sought a review of the delegate’s decision before the Refugee Review Tribunal (RRT).  He attended an oral hearing before the RRT on 24 November 2005.  In a decision handed down on 10 January 2006 the RRT rejected the application for review and affirmed the delegate’s decision.  It found that all of the applicant’s core claims lacked credibility and was not satisfied that he had presented a truthful account of his circumstances in India.

2. On 16 February 2006 the appellant sought judicial review of the decision of the RRT in the Federal Magistrates Court of Australia (‘the FMCA’).  On 22 June 2007 that application was dismissed (SZIJE v Minister for Immigration & Anor [2007] FMCA 957). The application for judicial review contained three grounds as follows:

   ‘1. The Tribunal breached natural justice and procedural fairness;
   2. The Tribunal failed to take into consideration all information provided by the applicant in writing;
   3. The Tribunal interpreted the meaning of persecution wrongly.’

   Those three grounds drew the following observations from the Federal Magistrate in the course of them being rejected (at [24], [35] and [38])

   ‘The Applicant did not make any submission about the manner in which he alleges the Tribunal breached natural justice and procedural fairness.

   …

   Ground 2 alleges that the Tribunal failed to take into consideration all information provided by the Applicant in writing.  At the hearing before this Court, the Applicant was invited to identify what was the information that he alleged was provided by him to the Tribunal and which the Tribunal failed to consider.  The Applicant was unable to identify any such information.

   …

   Ground 3 alleges that the Tribunal interpreted the meaning of persecution wrongly.  Again, there are no particulars provided by the Applicant nor any oral submissions made to this Court to identify how it is that the Applicant alleges that the Tribunal misinterpreted the meaning of persecution.’

3. On 9 July 2007 the appellant appealed to this Court.  There are two grounds of appeal stated:

   ‘The Honourable court failed to determine whether there was any jurisdictional error in the purported decision of the Tribunal which was handed down on 10 January 2006.

   The Honourable Federal Magistrate failed to understand that the applicant never authorized his representative to declare that the applicant was not willing to go to the hearing.’

4. At the hearing of the appeal the appellant first asked for an adjournment, saying he desired the assistance of his migration adviser who was away until 1 December.  It appeared, however, that he had only attempted to approach his adviser the evening before the appeal was to be heard and then observed a notice on the door advising of the absence.  The appeal has been listed for hearing for quite some time.  The application for adjournment was opposed.  I declined to adjourn the proceedings.  The appellant made no oral submissions.  Neither had he made any written submissions.  It is therefore necessary to evaluate his grounds of appeal from their own terms.

5. The grounds of appeal to this Court seem to me to be without any substance.  The Federal Magistrate gave careful attention to the grounds of appeal advanced by the appellant before the FMCA.  It is clear from the terms of her judgment that she invited the appellant to make submissions about each of the then alleged grounds of jurisdictional error.  The appellant was unable to identify any foundation upon which the FMCA might set aside the decision of the RRT.  The Federal Magistrate determined that no jurisdictional error had been shown.  The first ground of appeal in this Court fails.

6. The second ground of appeal seems misconceived.  The appellant attended the hearing before the RRT.  There is no indication that the appellant had appointed an authorised representative for the purpose of the proceedings.  This ground also fails.

7. The appellant failed in his application for review because the RRT did not accept that his account of factual matters was credible.  No jurisdictional issue has been raised which would permit interference with that finding.  As no error has been shown in the judgment of the Federal Magistrate and no jurisdictional error appears from the decision of the RRT the appeal to this Court must be dismissed.  It is appropriate to dismiss it with costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:

Dated:        20 December 2007

The Appellant:	The appellant was self represented
Counsel for the Respondent:	L Clegg
Solicitor for the Respondent:	Sparke Helmore Lawyers
Date of Hearing:	20 November 2007
Date of Judgment:	20 December 2007