SZIWN v Minister for Immigration and Citizenship

[2007] FCA 706

FEDERAL COURT OF AUSTRALIA

SZIWN v Minister for Immigration and Citizenship [2007] FCA 706

SZIWN v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 35 OF 2007

BRANSON J
4 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 35 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIWN
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BRANSON J
DATE OF ORDER:	4 MAY 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 costs of the first respondent, fixed in the sum of $1 500.00.

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 35 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIWN
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BRANSON J
DATE:	4 MAY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of India.  He claims to be entitled to a protection visa on the ground that he has a well-founded fear of persecution in India for reasons of political opinion. 

2. On review of a decision of a delegate of the then Minister for Immigration and Multicultural and Indigenous Affairs refusing to grant the appellant a protection visa, the Refugee Review Tribunal found the appellant’s oral evidence to be generally unconvincing.

3. The Tribunal accepted that the appellant was a supporter of the popular Telugu Desam Party (‘TDP’) but did not accept that he was politically active on behalf of the party.  Its failure to accept that he was politically active was based on the vagueness of his answers when asked by the Tribunal to describe his activities and his inability to answer questions which a party activist would be likely to have been able to answer.

4. The Tribunal noted that the appellant did not claim in either his written or his oral evidence to have been seriously harmed in India and disbelieved his evidence that he went into hiding in India between the time of the national elections and his departure for Australia.  The Tribunal noted that his evidence in this regard was vague and lacking in detail; was inconsistent with his earlier oral evidence which was that he had lived with his parents in India; and was difficult to reconcile with his evidence that he worked at his uncle’s hotel up until the time of his departure for Australia.  

5. Having regard to its finding that the appellant was not a political activist on behalf of the TDP, and his acknowledgment that he had not suffered serious harm in the past for reasons of a political opinion or, indeed, for any reason, the Tribunal was not satisfied that there was a real chance that the appellant would face persecution for a Convention reason if he returned to India in the foreseeable future.

6. The appellant has appealed to this Court from the judgment of the Federal Magistrates Court which dismissed his application for judicial review of the decision of the Tribunal.  His notice of appeal sets out a number of grounds of appeal which, he has told me today, were prepared by a friend who was not legally qualified.  So far as they can be understood, certain of the grounds of appeal complain that the learned Federal Magistrate did not review the decision of the Tribunal on its merits, or otherwise seek review on the merits of the Tribunal’s decision.  The other grounds of appeal are either incomprehensible or appear to have been drawn without reference to the reasons for judgment of the Federal Magistrate or the reasons for decision of the Tribunal.

7. The appellant did not comply with a direction made by a Registrar of this Court that he file an outline of his submissions on his appeal.  I accept that he did not do so partly because he lacks fluency in the English language and partly because he is unfamiliar with the law of Australia.  Today he has made the following submissions to the Court.  First, the appellant has told the Court that he does not wish to remain permanently in Australia but seeks to remain only until the completion of the Indian elections in 2009.  Secondly, he has indicated that he is seeking documents in India to support his claim that he will return to India in 2009.

8. Neither of the above submissions addresses the question of whether any error affects the judgment of the Federal Magistrates Court.  Nor can this Court grant the appellant’s request for temporary entitlement to remain in Australia. 

9. The appellant frankly acknowledged that he is unable to identify any legal error in the judgment of the Federal Magistrates Court.  However he considered that the Tribunal had erred because it had asked him irrelevant questions rather than questioned him with respect to the claims made in his application for a protection visa.  He said that the questions asked of him by the Tribunal made him nervous and that he was not able to get a medical certificate.

10. No error going to the jurisdiction of the Tribunal flows from the fact that the Tribunal sought to test the appellant with respect to his claims.  It was not inappropriate for the Tribunal to test his claims by asking him questions that it considered he would have been able to answer were his claims true. 

11. Nothing in the reasons for decision of the Tribunal, nor in the case put on behalf of the appellant before the learned Federal Magistrate, supports the suggestion that the hearing before the Tribunal miscarried by reason of the physical or mental state of the appellant at the time of the hearing. 

12. In my view, no error has been identified in the careful and clear reasons for judgment of the Federal Magistrate. In particular, his Honour rightly found that the Tribunal’s reference to the appellant’s protection visa application did not disclose a failure by the Tribunal to comply with s 424A of the Migration Act 1958 (Cth).

13. For these reasons the appeal is 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:        11 May 2007

Counsel for the Appellant:	The appellant appeared in person
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	4 May 2007
Date of Judgment:	4 May 2007