SZKGD v Minister for Immigration & Citizenship

[2008] FCA 363

FEDERAL COURT OF AUSTRALIA

SZKGD v Minister for Immigration & Citizenship [2008] FCA 363

SZKGD v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 2000 of 2007

GOLDBERG J
27 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2000 of 2007

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

BETWEEN:

SZKGD
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 of the appeal fixed in the sum of $1,780.00.

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 2000 of 2007

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

BETWEEN:

SZKGD
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 the Court is an appeal against a judgment of the Federal Magistrates Court on 17 September 2007 dismissing the appellant’s application, amended application and statements of particulars.  The appellant has not appeared in Court this morning but yesterday he sent a letter by facsimile transmission to the Court and to the Minister’s lawyers in which he said that he was not able to afford to engage a lawyer to appear today and he was not able to appear himself as he cannot afford to travel to Sydney.  In his letter he requested the Court to decide his notice of appeal in his absence and he requested the Court to consider his affidavit filed on 5 October 2007 and the grounds set out in his notice of appeal.

2. I do not consider that the matters raised in the affidavit of 5 October 2007 affect or bear upon the issues which I have to decide today.  I have had regard to the grounds set out in the notice of appeal and for the reasons to which I will refer shortly I do not consider those grounds have been made out.  The appellant had applied to the Federal Magistrates Court on 21 February 2007 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) on 15 January 2007 affirming the decision of the delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”) to refuse to grant the appellant a Protection (Class XA) Visa.  The appellant is an Indian citizen and a Sikh by religion.  He was born on 3 March 1984.

3. He left India and arrived in Australia in July 2005. He came to Australia on a student visa. In his application to the Department for a visa, he claimed that he feared persecution by the Punjab and Indian Government and Indian police and political authorities affiliated with the Congress Government. On 19 October 2006 he lodged an application for a Protection Visa which was refused by the delegate of the Minister on 15 November 2006. On 4 December 2006 he lodged an application with the Tribunal for a review of the delegate’s decision. On 18 December 2006 the Tribunal sent by post a letter pursuant to s 425 of the Migration Act 1958 (Cth) (“the Act”) to the appellant addressed to him at 19 Sumbray Avenue, Kemps Creek.

4. That letter, in accordance with the provisions of s 425, invited the appellant to attend a hearing of the Tribunal on 15 January 2007 and told him that if he was unable to attend he should contact the Tribunal immediately. On the same day, 18 December 2006, the Tribunal sent the appellant a letter in accordance with the provisions of s 424A of the Act in relation to the cancellation of his student visa. What had happened was that on 11 September 2006 the Department issued him with a notice of intention to cancel his student visa. He did not attend for an interview with an officer of the Department on 20 September 2006 as required and on 11 October 2006 his student visa was cancelled.

5. The Tribunal noted in the letter that he did not apply for a Protection Visa until 19 October 2006, which was 15 months after his arrival in Australia and only after his student visa had been cancelled.  The Tribunal in the letter stated that this information was relevant as it might indicate that the appellant applied for the Protection Visa only because of the cancellation of his student visa.  The letter also indicated that this matter might also cause the Tribunal to question the authenticity of his claims and his credibility.  He was invited in the letter to comment on this information and his comments were to be in writing and they were to be received by 12 January 2007.  The letter noted that if he did not give comments by 12 January 2007 the Tribunal might make a decision on the review without further notice.

6. The appellant did not attend for the hearing on 15 January 2007 and he did not respond to the letter which had been sent to him.  The Tribunal made its decision on 15 January 2007 affirming the decision of the delegate of the Minister to refuse to grant the Protection Visa, and that decision was handed down on 1 February 2007.  I will refer briefly to the Tribunal’s reasons.  The Tribunal set out the appellant’s claims in his initial application and noted that he did not provide any additional material when applying for review of the Minister’s decision.  The Tribunal noted that it could not test his claims, as the appellant had not appeared for the hearing.  In its reasons the Tribunal found the appellant’s claims to be extremely vague, general and lacking in detail.

7. The Tribunal set out the matters in respect of which the appellant had not given explanations.  In particular the Tribunal found that due to lack of details and based on the very limited information available to it the Tribunal did not accept the appellant’s claim that he was involved with the organisations to which he had referred.  The Tribunal considered the appellant’s claims singly and cumulatively and found that if he returned to India either now or in the reasonably foreseeable future there was no real chance that he would suffer persecution on the basis of his express or imputed political opinion or on the basis of him being a member of any political party or association or because of his association with political activists or for any other reason 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”).

8. Accordingly the Tribunal affirmed the decision not to grant the appellant the visa which he had sought. In the reasons of the Federal Magistrate, the Federal Magistrate found no errors in the Tribunal’s reasons. It found that the invitation to attend the hearing on 15 January 2007 in accordance with s 425 of the Act was in accordance with the provisions of that section. The Tribunal also found that the procedures in the Act had been observed and the Tribunal analysed each of the grounds of appeal relied upon by the appellant and found that those grounds had not been made out. I have considered carefully the reasoning of the Federal Magistrate and am satisfied that he made no error in law.

9. The bases upon which the Federal Magistrate found the grounds not made out were clearly open to him, and having regard to the paucity of detail and particulars relied upon by the appellant it is not surprising that the Federal Magistrate was able succinctly and clearly to find that those claims and those grounds had not been made out.  The Federal Magistrate found that the findings of the Tribunal were clearly open to it on the material before it and I am satisfied that the Federal Magistrate did not err in reaching that conclusion, nor did the Federal Magistrate misdirect himself.  In his notice of appeal, which was filed on 5 October 2007, the appellant set out a number of grounds.  One of the grounds was that the Federal Magistrate did not trust or believe him that he could not attend the hearing on 15 January 2007.

10. That is relevant in respect of the claims which he has made which are now the subject of appeal to this Court.  The appellant had filed an affidavit on 21 February 2007 explaining that he could not attend the interview before the Tribunal on 15 January 2007.  The difficulty with that piece of evidence is that the affidavit was filed after the decision had been reached and after the decision had been handed down.  By the time the decision had been made and handed down, all the Tribunal knew was that the appellant had not responded to the invitation to appear at the hearing and had not responded to the letter seeking his comments on the matters raised in the letter. 

11. The notice of appeal asserted that the Federal Magistrate did not observe the procedures that were required by the Act or the regulations to be observed in connection with the making of the decision. No particulars have been given of that alleged non‑observance and I am satisfied that the procedures required by the Act in the Regulations to be observed in the making of the decision were observed in all respects. The ground that the appellant was not asked by the Federal Magistrate to provide any additional evidence and that he was not given the opportunity to file additional evidence is not a ground of appeal which is valid. There was no material before the Federal Magistrate that there was additional evidence relevant to the issues before him.

12. The only material the appellant had put forward was the affidavit of 21 February 2007, which only arrived after the Tribunal was functus officio.  One of the grounds upon which the appellant relied was that the Federal Magistrate considered irrelevant facts found by the Tribunal, and he referred to the fact that the Tribunal found that the appellant intentionally ignored the call for the interview before the Tribunal.  That is a misunderstanding of what the Tribunal found.  It is also a misunderstanding of what the Federal Magistrate said.  The Federal Magistrate did not make a finding that the Tribunal had found that the appellant intentionally ignored the call or the request to attend the hearing.  The only finding of the Tribunal and the Federal Magistrate in that respect was that the appellant had been invited to attend the hearing and he had not attended.

13. As I noted earlier, the appellant’s explanation in his affidavit of 21 February 2007 arrived after the matter had been concluded.  No particulars were given by the appellant in respect of his ground that the decision was an improper exercise of power and that the decision involved an error of law.  I have reviewed at the reasoning of the Tribunal and the reasoning of the Federal Magistrate and am satisfied that there was no improper exercise of power, nor any error of law infecting the decision of the Tribunal and the decision of the Federal Magistrate.  For all of those reasons I am satisfied that the appeal should be dismissed.  The order of the Court will be that the appeal be dismissed and the appellant pay the first respondent’s costs of the appeal fixed in the sum of $1,780.00.

I certify that the preceding thirteen (13) 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 did not appear
Counsel for the Respondent:	Ms B Rayment
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	27 February 2008
Date of Judgment:	27 February 2008