SZKCP v Minister for Immigration and Citizenship

[2008] FCA 347

FEDERAL COURT OF AUSTRALIA

SZKCP v Minister for Immigration & Citizenship [2008] FCA 347

SZKCP v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 2160 of 2007

GOLDBERG J
27 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2160 of 2007

ON APPEAL FROM A DECISION OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKCP
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

GOLDBERG J

DATE OF ORDER:

27 FEBRUARY 2008

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The Appellant pay the First Respondent’s costs fixed in the sum of $1,125.00.

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 2160 of 2007

ON APPEAL FROM A DECISION OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKCP
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GOLDBERG J
DATE:	27 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The matter before me is an appeal from a judgment of the Federal Magistrates Court on 12 October 2007 dismissing an application by the appellant for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”).  That decision was made on 14 December 2006 and handed down on 9 January 2007.  The Tribunal affirmed the decision of the delegate of the Minister for Immigration and Citizenship (“the Minister”) to refuse to grant the appellant a Protection (Class XA) Visa.  The appellant is a citizen of India and he is 44 years old.  He arrived in Australia on 18 August 2006.  He applied to the Department of Immigration and Multicultural Affairs for a Protection (Class XA) Visa on 25 September 2006.

2. The delegate of the Minister decided to refuse to grant the visa on 29 September 2006. The appellant applied to the Tribunal on 20 October 2006 for a review of the delegate’s decision. On 6 November 2006 the Tribunal sent the appellant a letter in accordance with the provisions of s 425 of the Migration Act 1958 (Cth) (“the Act”) notifying him that it proposed to have a hearing of his application on 14 December 2006. On 8 December 2006, the appellant sent a response to the Tribunal in relation to the invitation to attend the hearing which was received on 12 December 2006. In that response, the appellant said that he did not want to come to a hearing and he consented to the Tribunal making a decision without taking any further action enabling him to appear before it.

3. In the Tribunal’s reasons, it summarised the reasons upon which the appellant claimed to be a refugee.  The claims of the appellant were set out in a statement which had been attached to his application to the Department.  The appellant’s claims may be summarised as follows.  He comes from the Punjab region of India and belongs to a family of extreme Sikhs.  He was an active and leading member of the Khalistan insurgents which was an organisation of Sikh students and as a student he had conflicts with student members of rival Hindu parties.  As a result of his activism with the Sikh movement, he was targeted by fanatic Hindu groups and he learned that he was targeted for assassination.

4. He survived attempts to harm him and was threatened many times by members of student groups.  He reported these threats and attacks to the Indian authorities but to no avail.  He decided to leave India and seek asylum in Australia to protect his life and he feared that if he returned to India he would be killed because he is a Sikh.  In the Tribunal’s findings, the Tribunal found that the appellant had made a number of unsubstantiated claims and that the Tribunal was unable to establish the facts of the matter before it.  The Tribunal noted that the appellant had been put on notice that it was unable to make a decision in his favour on the basis of the material before it.  The Tribunal also noted that the appellant did not send the Tribunal any further material nor did he take the opportunity offered to him in the letter of 6 November 2006 to attend a hearing and present his claims orally. 

5. The Tribunal was not prepared to accept the appellant’s claims without further substantiation. Accordingly, the Tribunal was not satisfied on the evidence before it that the appellant had a well‑founded fear of persecution within the meaning of 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”). The appellant appealed to the Federal Magistrates Court. The Federal Magistrate was satisfied that the Tribunal had complied with its obligations under the Act relating to giving the appellant an invitation to attend a hearing. The Federal Magistrate noted that the Tribunal was unable to establish the facts of the matter before it. At the hearing of the appeal before the Federal Magistrate the appellant appeared but was unable to assist the Federal Magistrate further, other than to say that he relied on his written submissions. The Federal Magistrate concluded that the grounds of appeal of the appellant, which were not particularised, when read with his submissions in writing, should be categorised as a request for the court to engage in review on the merits, which was not permissible. The Federal Magistrate referred to the decision of the High Court in Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259. In my view the Federal Magistrate made no error of law in making this finding and reaching this conclusion.

6. The Federal Magistrate concluded that the Tribunal’s reason for not being able to reach the requisite level of satisfaction that the applicant had a well‑founded fear of persecution within the meaning of the Convention was plainly a reason open to the Tribunal on the material before it.  In my view the Federal Magistrate was correct in law and I can discern no error in his reasons. 

7. The Federal Magistrate considered whether any jurisdictional error could be discerned from any of the grounds relied upon by the appellant or otherwise, but was unable to discern any such jurisdictional error.  In my view not only was that finding open to the Federal Magistrate, it was clearly correct.  Accordingly, the Federal Magistrate dismissed the application for judicial review before him.  In his notice of appeal to this Court, which was filed on 31 October 2007, the grounds of appeal relied upon by the appellant were in substance that the Federal Magistrate failed to determine the actual harm which the appellant faced because he belonged to a religious Sikh group.  In his ground of appeal in this respect the appellant repeated the claims made before the Tribunal and the Federal Magistrate.  A further ground was that the Hindu Students Federation, coupled with two other organisations, sought to kill him, and that he was on a hit list of the Indian authorities.

8. These grounds of appeal do not expose any error of law or failure to apply proper legal principles on the part of either the Tribunal or the Federal Magistrate.  In substance what the appellant wishes this Court to do is to make different findings from those made by the Tribunal and also the Federal Magistrate.  That is impermissible on an appeal to this Court.  This Court cannot engage in a review of the merits of the original decision by the Tribunal.  Its only role is to ensure that proper legal principles were applied by the Tribunal and the Federal Magistrate.  I am satisfied that the decision of the Tribunal and the Federal Magistrate disclosed no errors of law or misapplication of legal principle. 

9. More relevantly for the purpose of this appeal, the decisions of the Tribunal and the Federal Magistrate did not disclose any jurisdictional error.  In those circumstances the appeal should be dismissed and the appellant should pay the costs of the Minister, fixed in the sum of $1,125.00.

I certify that the preceding nine (9) 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:	M Mafessanti
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	27 February 2008
Date of Judgment:	27 February 2008