SZIWT v Minister for Immigration and Citizenship

[2007] FCA 1160

FEDERAL COURT OF AUSTRALIA

SZIWT v Minister for Immigration and Citizenship [2007] FCA 1160

Migration Act 1958 (Cth) s 424A

SZIWT AND SZIXR v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 720 OF 2007

TAMBERLIN J
31 JULY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 720 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIWT
First Appellant

SZIXR
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TAMBERLIN J
DATE OF ORDER:	31 JULY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be 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 720 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIWT
First Appellant

SZIXR
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TAMBERLIN J
DATE:	31 JULY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of a Federal Magistrate dismissing an application for a review of a decision of the Refugee Review Tribunal (“the Tribunal”) which in turn refused an application for a protection visa.  When the matter came on for hearing before me this afternoon, the appellants appeared unrepresented but with the aid of an interpreter.

2. The appellants are husband and wife who are citizens of India.  They arrived in Australia on 17 November 2005.  Only the first appellant advances claims before this Court, and the second appellant, his wife, relies on those submissions and her membership of the family unit.  Accordingly, I shall refer only to the “appellant” in these reasons. 

3. The Tribunal found that there was no suggestion of any Convention-related reason for the appellant’s asserted fear of persecution.  This finding was supported by the appellant’s statement that the mere fact one of the creditors by whom he was threatened was Muslim was not a factor, from a religious point of view, in the formation of his subjective fear.  That being so, the Tribunal dismissed the application.

4. The appellant applied for judicial review of the Tribunal’s decision, and the application was heard in the Federal Magistrates Court.  During that hearing, the appellant gave evidence, but the Federal Magistrate, referring to the cross-examination, concluded that the appellant was not a reliable witness for a number of reasons.  These reasons included the confusion in his evidence and the fact that, in some respects, he was not credible in relation to his claims regarding the interpreter at the Tribunal.  The Federal Magistrate accepted neither the evidence given in relation to appellant’s fear of harm inflicted by Muslims, nor the explanation as to why the appellant believed that the interpreter was Muslim. 

5. In a carefully considered decision, the Federal Magistrate found that there had been no breach of s 424A of the Migration Act 1958 (Cth) because there was no failure to put information to the appellant as required by that section.

6. When the matter came on for hearing before me, the only contention which the appellant urged on the Court was that he would like the matter to go back before the Tribunal because he was, in effect, intimidated at the hearing by the fact that persons he saw outside the hearing room were Muslim believers and this affected his ability to properly present his case.  He also suggested that the interpreter was of the Muslim persuasion and that this affected his opportunity to have a fair hearing.  He also said that the duration of the hearing was too short, occupying as it did a period of only about 20 minutes. 

7. The submissions of the appellant do not identify any error in the decision of the Tribunal or the Federal Magistrates Court, nor is there any proper basis for a finding that the appellant was denied procedural fairness.  It is worth noting that there was a delay after the Tribunal hearing before the decision was handed down, and in that time no complaint was made in relation to the Muslim interpreter.  No evidence has been put before this court or before the Federal Magistrate concerning the actual duration of the Tribunal hearing or the transcript of what transpired.  If the appellant is to make out his submissions, it is necessary to provide some evidence as to what occurred and also to make some submissions as to how this impacted on the opportunity to be given a fair hearing.  In my view, there is no basis on which this Court could find that the hearing was insufficient by reason of its duration or that the appellant was intimidated in any way so as to be unable to properly present his case.

8. In relation to the claim of denial of procedural fairness, there is no material before the Court which would enable me to reach a conclusion that there had been such a denial.  Accordingly, having regard to what was said by the appellant, and considering the grounds of appeal and the two decisions below, I do not consider that any error warranting judicial review has been made out, or that there has been any error in the decision of the Federal Magistrate.  As a consequence, I dismiss the appeal with costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:        6 August 2007

Counsel for the Appellant:	None
Solicitor for the Appellant:	None
Counsel for the Respondent:	Mr P. Reynolds
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	31 July 2007
Date of Judgment:	31 July 2007