SZKBR v Minister for Immigration and Citizenship

[2008] FCA 360

FEDERAL COURT OF AUSTRALIA

SZKBR v Minister for Immigration & Citizenship [2008] FCA 360

SZKBR v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 2044 of 2007

GOLDBERG J
26 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2044 of 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKBR
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

GOLDBERG J

DATE OF ORDER:

26 FEBRUARY 2008

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The Appellant pay the First Respondent’s costs of, and incidental to, the appeal. 

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 2044 of 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKBR
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GOLDBERG J
DATE:	26 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant appeals from a judgment of the Federal Magistrates Court of Australia on 4 October 2007 dismissing an application to review the decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 4 January 2007.  By that decision, the Tribunal affirmed the decision of a delegate of the Minister for Immigration and Citizenship (“the Minister”) not to grant the appellant a Protection (Class XA) Visa.  The Tribunal did not accept that the appellant had suffered persecution as he had claimed, for any of the reasons under the United Nations Convention Relating to the Status of Refugees, opened for signature 28 July 1951,189 UNTS 137 (entered into force 22 April 1954) (“the Convention”), and the Tribunal based its finding particularly on directly conflicting accounts given by the appellant in his written statement and at the hearing, as to the identities of the perpetrators of the claimed persecution.

2. A number of grounds of appeal were set out in the notice of appeal to the Federal Magistrates Court, and those grounds were summarised, in my view, correctly by the Federal Magistrate when he said that it was contended that the brevity of the Tribunal’s reasons should lead him to conclude that there were essential integers in the appellant’s refugee claims which were not addressed by the Tribunal.  It was accordingly said that the Tribunal’s decision was infected with jurisdictional error.

3. The Federal Magistrate accepted the submission of the Minister that the Tribunal, in finding that the appellant had not suffered persecution for any of the Convention reasons, addressed the whole of the claims made by the appellant, in making reference to the directly conflicting accounts given by the appellant sufficiently identified a single good reason for its general conclusion, being its adverse view of the appellant’s general credibility. 

4. The Federal Magistrate accepted that submission and, in my view, he was entitled to do so.  No error of law can be discerned in the Federal Magistrate’s conclusion.  He was unable to find any legal error in the Tribunal’s reasoning, nor any evidence of a factual error revealing jurisdictional error.  In my view that conclusion of the Federal Magistrate was correct, as a matter of law.  In the notice of appeal before this Court, a number of grounds were set out.  Some of those grounds are mere assertion and do not identify any ground which would warrant a conclusion that there was an error of law made by the Federal Magistrate.

5. To say as a ground of appeal that the Federal Magistrate failed to find error of law, jurisdictional error, or procedural fairness and relief, is simply to assert what may be a basis for appeal if the underlying facts exist.  But no underlying facts or circumstances were identified in the grounds of appeal nor before me today to warrant a conclusion that the Federal Magistrate made an error of law, committed a jurisdictional error or failed to accord the appellant procedural fairness or natural justice.

6. I do not consider there were any legal and factual errors contained in the decision of the Tribunal which should have been considered by the Federal Magistrate.  A further ground was that the Federal Magistrate erred in not applying the principles in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437. In my view, the Federal Magistrate made no such error in relation to the principles laid down in that case.

7. A further ground was that the Federal Magistrate failed to take into consideration the fact that the Tribunal was unjust and made its decision without taking into account the full gravity of the appellant’s circumstances and consequences of his claim.  No particulars have been given under that ground, nor has the appellant advanced before me today any submission as to how the Federal Magistrate failed in the respect claimed.  In my view, he did not do so, and took into account fully in his reasoning the seriousness of the circumstances which were contended for by the appellant.

8. I do not consider that the Tribunal asked any irrelevant questions at the oral hearing, nor do I consider that the Tribunal ignored the appellant’s political background.  Indeed, the appellant’s political background was examined in some detail in the Tribunal’s reasons.  Accordingly, the Tribunal did not ignore, in my view, any relevant material, nor was there any lack of procedural fairness in the way the Tribunal conducted the hearing.  The case of Muin v Refugee Review Tribunal (2002) 190 ALR 601, upon which the appellant relied, has no relevance in this case. He did not advance any case or factual circumstance which falls within the principles enunciated in Muin v Refugee Review Tribunal (supra).

9. In my view, the Tribunal carried out its review function properly and exercised the jurisdiction which it was bound to exercise.  The Tribunal applied the correct test to determine whether the appellant had a well founded fear of persecution for the specified reasons.  I gave the appellant the opportunity at this hearing to say whatever he wanted to say in relation to his appeal and the grounds upon which the appeal was made.  All he told me was that he wanted an adjournment for the purpose of obtaining papers, I think from India, or certainly overseas.

10. The basis upon which further material can be admitted on appeal is very limited and only allowed in exceptional circumstances.  The appellant has not advanced before me any cogent reason as to why an adjournment should be granted or as to the relevance of the papers to which he was referring to the issues before me.  Accordingly, the appropriate order for the court to make on this appeal is that the appeal be dismissed and the Appellant pay the First Respondent’s costs of, and incidental to, the appeal.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

Associate:

Dated:        17 March 2008

Counsel for the Appellant:	the Appellant appeared in person
Counsel for the Respondent:	Mr Reilly
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	26 February 2008
Date of Judgment:	26 February 2008