SZLID v Minister for Immigration and Citizenship

[2008] FCA 834

FEDERAL COURT OF AUSTRALIA

SZLID v Minister for Immigration and Citizenship [2008] FCA 834

SZLID v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 404 OF 2008

GRAHAM J
19 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 404 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLID
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAHAM J
DATE OF ORDER:	19 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed in accordance with s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth).

2.The appellant pay the respondent Minister’s 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 404 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLID
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAHAM J
DATE:	19 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The matter which is before the Court is an appeal from a decision of the Federal Magistrates Court of Australia of 29 February 2008.  The Notice of Appeal was filed 20 March 2008.  The grounds specified in the Notice of Appeal were not particularly enlightening.  Relevantly, they were:

   ‘2.The single Judge of the Federal Magistrate Court in his Honours judgement delivered on the 29 February 2008 failed to find error of law, jurisdictional error, procedural fairness and relief under section 39B of the judiciary Act 1903.

   3.The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the Refugee Review Tribunal.

   4.The Federal Magistrate made a legal, factual and jurisdictional error in not applying the principles laid down by the full court of Federal Court in Randhawa v The Minister for Immigration Local Government and Ethnic Afairs (1994) 52 FCR 437.’

2. Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 was a case which was concerned with relocation within a country and has no bearing upon the facts of this case as recorded in the decision of the Refugee Review Tribunal (‘the Tribunal’).

3. The appellant was born in Kolkata, India on 7 February 1968.  She arrived in Australia on 10 February 2007.  On 23 March 2007 she applied for a Protection (Class XA) visa.  That application was refused by a delegate of the Minister.  She sought review of that decision by the Tribunal.  Following a hearing on 12 July 2007, the Tribunal decided the matter on 6 August 2007, the relevant decision being handed down by the Tribunal on 23 August 2007.  The decision of the Tribunal was to affirm the decision of the Minister’s delegate not to grant the appellant a Protection (Class XA) visa. 

4. On 14 September 2007, an Application was filed in the Federal Magistrates Court seeking constitutional writ relief in respect of the decision of the Tribunal.  An Amended Application was filed on 3 December 2007, which came before the Federal Magistrates Court on 29 February 2008.  The Federal Magistrates Court dismissed the application, and ordered the appellant to pay the respondent Minister’s costs fixed in the amount of $4,700.00.  By Notice of Appeal, to which reference has been made, the appellant appealed from that decision to this Court. 

5. At about 11.47 am today, a facsimile medical certificate was received by the Court from a Dr John Chu of 277-279 Forest Road, Hurstville, which referred to his examination of the appellant today.  He expressed the opinion that she was ‘unfit for work/school’ from today until Wednesday of this week, both days inclusive.  He indicated that she was suffering from work-related injuries, being a tennis elbow of her right elbow, mid thoracic back pains, anterior chest wall pains and lumbar back pains.  There is no suggestion in the medical certificate that she is bedridden, or would be rendered unable to appear before the Court to say what she wants to say in support of her appeal. 

6. No application has been made by her, or on her behalf, for an adjournment of the hearing of her appeal by reason of her medical condition, or any other reason. The appellant’s name has been called outside the court three times, as has the pseudonym by which she is known, namely ‘SZLID’, and she has failed to appear. In the circumstances, the solicitor for the respondent Minister has asked the Court to make an order in accordance with s 25 (2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) which provides:

   ‘25(2B)    A single Judge or a Full Court may:

   …
   (bb)   make an order that an appeal to the Court be dismissed for:

   …

   (ii)failure of the appellant to attend a hearing relating to the appeal;…’

7. I have had an opportunity to read the decision of the Tribunal of 6 August 2007 and have noted its primary reason for a lack of satisfaction that the appellant was a person to whom Australia had protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (together ‘the Refugees Convention’). The Tribunal said:

   ‘The applicant’s claims are entirely dependent upon an acceptance of her as a credible witness.  The applicant was not generally credible and the Tribunal does not regard the inconsistencies and other matters … as explicable in terms of any difficulty she faces as an asylum seeker. …
   …

   Overall, the Tribunal is not satisfied that the applicant was [treated in the manner in which she alleged] …’

8. It would seem to me that this is a case where it would be appropriate for the Court to make an order as sought, notwithstanding the medical certificate which has been forwarded to the Court earlier in the day.  In passing, I would note that it would be difficult to see how the appellant could satisfy the criteria for a Protection (Class XA) visa given that nothing in her application or in the findings of the Tribunal suggests that any fear she may have had of being persecuted was a fear for a Convention reason of race, religion, nationality, membership of a particular social group or political opinion.

9. The case which she had advanced in her application for a Protection visa was to the effect that she had married a Hindu of lower caste to herself, that he had a liking for alcohol and that he physically assaulted her from time to time.  It was also alleged that he forced her to have sex with some of his political and business partners for the benefit of his political and business ambition.  It would seem clear that the Tribunal did not accept as true the matters that she asserted in this regard.  In the circumstances, the appeal should be dismissed.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate:

Dated:        3 June 2008

The Appellant failed to appear.
Solicitor for the First Respondent:	L B Buchanan of the Australian Government Solicitor’s Office
The Second Respondent filed a submitting appearance.

Date of Hearing:	19 May 2008
Date of Judgment:	19 May 2008