SZJYN v Minister for Immigration and Citizenship

[2007] FCA 1155

FEDERAL COURT OF AUSTRALIA

SZJYN v Minister for Immigration and Citizenship [2007] FCA 1155

SZJYN AND SZJYO v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 851 OF 2007

TAMBERLIN J
31 JULY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 851 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJYN
First Appellant

SZJYO
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 application 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 851 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJYN
First Appellant

SZJYO
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 application for leave to appeal from a judgment of a Federal Court Magistrate, given on 26 April 2007.  Leave is required because the judgment was an interlocutory decision.  When the matter came on for hearing before me, the appellants were unrepresented but had the assistance of an interpreter.

2. The appellants are citizens of India.  They arrived in Australia on 25 March 2006 and applied for a protection visa.  This was refused by a delegate of the first respondent and the Refugee Review Tribunal (“the Tribunal”) affirmed that decision.  An application for review of the Tribunal’s decision was considered by the Federal Magistrates Court, which gave an interlocutory decision in favour of the respondent.  Only the first appellant husband 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 the appellant’s claim of persecution for political opinion lacked veracity and that no credible evidence had been provided to support it.  His submission that he was a publicity officer was rejected as being implausible, as were his claims that he feared persecution because of his membership of a family with his particular surname.  This submission was led despite the acknowledgment that the appellant’s brother (with the same surname) remains in his native province in India without being attacked.  The Tribunal found that this evidence undermined the appellant’s claim that he feared persecution because of membership of the family.

4. On applying for review of the Tribunals’ decision, the Federal Magistrate found that the Tribunal met its statutory obligation to invite the applicant to a hearing.  This finding was made in the context where there had previously been two adjournments before the Tribunal hearing, due to the appellant’s illness and other personal difficulties.  The Federal Magistrate found that the adverse findings made by the Tribunal were available on the material before it.

5. The appellant also asserted before the Federal Magistrate that he had not been given enough time to have documents relevant to those proceedings, which were filed late, translated into his native language.  The documents were sent to the appellant’s adviser on 5 April 2007, but the appellant informed the Federal Magistrates Court that he had not contacted the adviser to receive legal advice because he saw no point in doing so without obtaining a more detailed understanding of the documents.

6. The only matter raised by the appellant on appeal to this Court was the fact that he should have been granted an adjournment by the Federal Magistrate to obtain further documentation from India.  He submits that such an adjournment was appropriate and necessary due to the fact that the documents required for the hearing had been filed late, and that as a result he only had a limited time in which to understand those documents and obtain material important for his case.

7. However, despite the submissions of the appellant, it is clear from the record of the proceedings below that he had been on notice for a lengthy period of time (prior to the filing of the documents required for the Federal Magistrates Court) of the fact that the Tribunal in particular had not been prepared to make a finding in his favour on the information previously before it.  Before me, the appellant was not able to give any satisfactory explanation as to why he was unable to obtain the additional material, nor did he specify with any detail the type of documentation which he contends would have been favourable to his case.  I note that this was a matter specifically dealt with by the Federal Magistrate.

8. I have considered carefully the decisions of the Tribunal and the Federal Magistrate.  I am of the opinion that there is no substance in any of the grounds relied on by the appellant and, as a result, that no injustice will be caused if the application is refused.  Accordingly, I dismiss the application for leave in this matter, 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:	S. Burnett
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	31 July 2007
Date of Judgment:	31 July 2007