SZIXD v Minister for Immigration and Citizenship

[2007] FCA 1152

FEDERAL COURT OF AUSTRALIA

SZIXD v Minister for Immigration and Citizenship [2007] FCA 1152

Migration Act 1958 (Cth) s 424A

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 considered

SZIXD AND SZIXE v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 845 OF 2007

TAMBERLIN J
30 JULY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 845 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIXD
First Appellant

SZIXE
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TAMBERLIN J
DATE OF ORDER:	30 JULY 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 845 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIXD
First Appellant

SZIXE
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TAMBERLIN J
DATE:	30 JULY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of a Federal Court Magistrate dismissing an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) refusing a grant of a protection visa on the basis of refugee status.  The application for refugee status was made by the appellant who presently appears before me and also by his wife as co-applicant.  Both are citizens of India who arrived in Australia on 27 August 2005.

2. The notice of appeal was filed on 14 May 2007 and sets out two grounds: first, that the Federal Magistrate failed to determine whether there was any jurisdictional error in the decision of the Tribunal; and secondly, that the Federal Magistrate failed to find that the Tribunal did not correctly assess the applicant’s claims, in particular those claims concerning internal relocation and persecution.

3. When the matter came on for hearing before me the appellant was unrepresented and, when asked to give details as to the basis on which he claimed there was in the Tribunal’s reasons a reviewable error or failure to properly exercise jurisdiction, he simply reiterated that he had not had all the necessary documents that he wished to put before the Tribunal or Court below because he had to leave India in a hurry.  He also said that he considered the decision of the Tribunal and of the Magistrate and of the Department to have been wrong.

4. I have considered in detail the reasons for judgment of the Tribunal and also of the Federal Magistrate.  In essence, the Tribunal found that the appellant was not a credible witness and gave detailed reasons for forming this view.  The substance of the decision of the Tribunal is that the claims were vague, general and supported by few relevant details.  The appellant was notified on 31 January 2006, a date before the hearing, that the information available to the Tribunal at that time was not sufficient to enable a decision to be made in his favour.  The decision of the Tribunal was eventually given on 19 April 2006, despite the matter originally being listed for hearing on 2 March 2006.  It appears from the Tribunal’s reasons that there were some adjournments, two reconvened hearings and supplementary submissions.

5. In my opinion, the appellant had ample time within which to obtain any documentary material to support his case and there can be no reasonable argument advanced that there had been a failure to exercise jurisdiction on this basis.  The reasons of the Tribunal set out the bases on which the evidence was not accepted.  The acceptance or rejection of evidence is not a matter for this Court to review.  It may be that in some extreme cases the Court can form a view as to the approach taken by the Tribunal, but in the present case the reasons given are cogent.  In my opinion, it was open to the Tribunal to find that the appellant had not satisfactorily demonstrated that there was a danger of persecution.

6. In addition, the Tribunal formed the view that, given the attributes of the appellant and the basis on which he claimed persecution, it would be possible for the appellant to relocate to another part of India.  On this matter, I find that the decision of the Tribunal is in accordance with the principles set out by Black CJ in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, which were referred to in the Federal Magistrates Court.

7. It is worth noting that the Tribunal also considered the evidence of the second named applicant and formed the same conclusion.

8. Accordingly, after considering the reasons for the decision of the Tribunal and the detailed treatment of the numerous grounds raised before the Federal Magistrates Court, I am not persuaded that either the Court or the Tribunal fell into appealable error. I am not satisfied that s 424A of the Migration Act 1958 (Cth) has been breached. I do not think the circumstances for the application of that section arise in this case and, as pointed out in the decision of Federal Magistrates Court below, there are no transcripts, particulars or detailed submissions indicating that the material in question came before the Tribunal in a way other than what is stated in its decision.

9. For the above reasons I am satisfied in this case that the appeal should 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 Tamberlin.

Associate:

Dated:        3 August 2007

Counsel for the Appellant:	None
Solicitor for the Appellant:	None
Counsel for the Respondent:	Mr J. Mitchell
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	30 July 2007
Date of Judgment:	30 July 2007