SZINM v Minister for Immigration and Citizenship

[2007] FCA 325

FEDERAL COURT OF AUSTRALIA

SZINM v Minister for Immigration and Citizenship & Anor [2007] FCA 325

Migration Act 1958 (Cth) ss 422B, 424A

SZINM v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1981 OF 2006

DOWNES J
7 MARCH 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1981 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZINM
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 1981 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZINM
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 57 years.  He arrived in Australia in October 2005.  He applied for a protection visa, claiming a well-founded fear of persecution within the Refugees Convention on the grounds of his political opinion, namely, that he was a member of the Indian Union Muslim League (IUML).  His application was refused on 4 November 2005 and that decision was affirmed by the Refugee Review Tribunal on 31 January 2006.  The appellant appealed to the Federal Magistrates Court.  His application was dismissed on 29 September 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, on the basis of his religion as a Muslim and his membership of the IUML, claimed to fear persecution by activist Hindus belonging to the Bharatiya Janata Party and the wider volunteer organisation Rashtriya Swayamsevak Sangh. 

5. The Refugee Review Tribunal, constituted by Ms Philippa McIntosh, was not satisfied that the appellant was a member of the IUML.  The Tribunal found that the appellant’s evidence in relation to his role within the IUML was “vague” and “[h]e did not appear to be as familiar with this group as one would expect if he were, as he claimed, a longstanding, active, member”.  A letter in support of his membership, purportedly from office holders of the local IUML unit, was disregarded because it was inconsistent with the appellant’s evidence and there was evidence before the Tribunal that false documents are easily obtained in India.  The Tribunal also did not accept that events claimed to have occurred in 2005, upon which the appellant relied, had occurred at all.  It did not consider that the appellant’s actions were consistent with a fear of imminent harm in India before his arrival in Australia.  The Tribunal confirmed that the wife and children of the appellant continue to live in Kerala in India “in the family home in Calicut”.  The Tribunal concluded that it did not accept that the appellant left India because he feared Convention-related harm and determined that it was not satisfied that the appellant was a person to whom Australia had protection obligations under the Refugees Convention.

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 contains ten grounds of appeal.  Many of the grounds are general and lack specificity.  The first ground simply asserts jurisdictional error at least, in part, based on denial of procedural fairness.  The second to fifth grounds simply refer without particularity to recent cases.  I am not aware of any particular matter in the present case, arising from either the decision of the Tribunal or the Federal Magistrates Court, which attracts any of the principles in those cases. 

8. There are then some grounds which appear to refer to country information and, in particular, a report of the Department of Foreign Affairs and Trade. There is a reference to s 424A of the Migration Act. I am not aware of any document covered by s 424A which it could be said had not been given to the appellant. Country information is excluded from the material covered by s 424A. I also note that to the extent to which the notice of appeal refers to procedural fairness, s 422B provides that s 424A is an exhaustive statement of the requirements of natural justice, which can be equated with procedural fairness for present purposes, in connection with the provision of information. Accordingly, the grounds based on the country information and on s 424A otherwise must fail. The last two grounds are grounds which raise issues of fact which cannot be agitated in this appeal.

9. The appellant did not file any written submissions and when I asked him if he wished to present any further material or argument in support of his appeal he declined to do so, relying upon the material already before me.  I have read the decision of the Refugee Review Tribunal and the reasons for judgment of Scarlett FM.  I can find no error of law in either decision.  It follows that the appeal cannot succeed and will be dismissed with costs.

I certify that the preceding nine (9) 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:	Sparke Helmore
Date of Hearing:	7 March 2007
Date of Judgment:	7 March 2007