SZKOR v Minister for Immigration and Citizenship

[2008] FCA 800

FEDERAL COURT OF AUSTRALIA

SZKOR v Minister for Immigration & Citizenship [2008] FCA 800

SZKOR and SZKOS v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 362 OF 2008

JESSUP J
21 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 362 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKOR
First Appellant

SZKOS
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE OF ORDER:	21 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeals be dismissed.

2.The appellants pay the costs of the first respondent fixed in the sum of $3,180.

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 362 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKOR
First Appellant

SZKOS
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE:	21 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. These are appeals from a judgment of the Federal Magistrates Court of Australia given on 3 March 2008 dismissing applications for writs of certiorari, prohibition and mandamus in relation to a decision of the Refugee Review Tribunal (‘the Tribunal’) signed on 22 March 2007 and handed down on 12 April 2007.  In that decision, the Tribunal affirmed an earlier decision of a delegate of the respondent Minister not to grant the appellants Protection (Class XA) Visas under the provisions of the Migration Act 1958 (Cth) (‘the Act’).

2. The appellants, who are husband and wife, came to Australia from India on 17 October 2006.  The appellant husband claimed to have a well-founded fear of persecution by reason of his political opinion and activities.  He claimed to have been an active member of the BJP in India.  The way the Tribunal disposed of that claim is reflected in the following short extract from its decision:

   As the Tribunal has not accepted that the applicant was a member of the BJP at all, nor that he suffered harm from his claimed political opponents, or that he was even of adverse interest to them, it follows that the Tribunal is not satisfied that the applicant has a well founded fear of persecution should he return to India now or in the reasonably foreseeable future.

3. The appellant wife had no claim of her own to fear persecution for reasons referred to in the Convention.  She based her application for a visa upon the circumstance that she was a dependant of the appellant husband.  She has not appeared in court today, but her husband has assured me that she is aware of the hearing of the appeal and is content to have her appeal follow the disposition of his.

4. Although the appellant husband, to whom I shall refer as the appellant, relied upon three grounds in his application in the Federal Magistrates Court, it is necessary to deal with only one of them on the present occasion since his Notice of Appeal contains one ground only, namely:

   The FM failed to find that the tribunal’s decision was in breach of s 424A of the Migration Act 1958 (Cth) and therefore fall under jurisdictional error.

   (a)There was certain adverse information used by the Tribunal to affirm the decision under review and the Tribunal did not disclose the information in accordance with section 424A(1).

5. In his decision on so much of the appellant’s application as arose under s 424A of the Act the Federal Magistrate said:

   I cannot see that any obligation under s 424A(1) is enlivened on the material that is before the Court. The Tribunal’s decision was plainly based on the applicant’s evidence that he gave at the hearing before the Tribunal and, to the extent that it is referred to in the decision record, and certainly by way of background information for the Tribunal, it had regard to country information. Both sets of information, that is, what the applicant said at the hearing and the country information, come within the exceptions that are contained in s 424A(3) from the obligation that is set out in s 424A(1).

   His Honour referred to authority to sustain his conclusions in this regard. 

6. In this court, the appellant did not file any outline of submissions, and effectively made no oral submissions before me today.  He said nothing with respect to the single ground which appears in his Notice of Appeal. 

7. I have read the decision of the Tribunal and I am in full agreement with the way in which the Federal Magistrate disposed of the point arising under s 424A of the Act. It follows that the appeal must be dismissed and I shall so order.

8. The one submission which the appellant did make today was to the effect that the Tribunal had denied him an opportunity to have further time to obtain some documentary support to verify the claims which the Tribunal did not accept.  I have no evidence as to the course of the hearing before the Tribunal and, as counsel for the Minister pointed out, neither the record of the decision of the Tribunal nor any of the other papers which are before the court disclose that the appellant made, or that the Tribunal denied, a request for further time for the purpose indicated.  The appellant frankly conceded that he had not made any such request and had not raised the issue of the Tribunal’s denial of such a request before the Federal Magistrate.  In the circumstances, any point about the absence of an opportunity which the appellant may have had at the level of the Tribunal to provide further documentary support for his claims is not one which properly arises on the present appeal.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.

Associate:

Dated:        29 May 2008

Solicitor for the First Appellant:	The first appellant appeared in person.  No appearance for the second appellant.
Counsel for the Respondents:	Ms V. McWilliam
Solicitor for the Respondents:	Clayton Utz

Date of Hearing:	21 May 2008
Date of Judgment:	21 May 2008