SZLMQ v Minister for Immigration and Citizenship

[2008] FCA 1128

FEDERAL COURT OF AUSTRALIA

SZLMQ v Minister for Immigration and Citizenship [2008] FCA 1128

Migration Act 1958 (Cth) s 424A

SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCR 1195
SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238

SZLMQ and SZLMR v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 701 OF 2008

TRACEY J
6 AUGUST 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 701 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLMQ
First Appellant

SZLMR
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	6 AUGUST 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellants pay the first respondent’s costs fixed at $2,300.

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 701 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLMQ
First Appellant

SZLMR
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE:	6 AUGUST 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of a Federal Magistrate delivered on 15 May 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 21 September 2007:  see SZLMQ v Minister for Immigration and Citizenship [2008] FMCA 698. The Tribunal had affirmed a decision of a delegate of the first respondent to refuse to grant a protection visa to the appellant.

   BACKGROUND

2. The appellants are husband and wife who are citizens of India.  They entered Australia on 28 March 2007 on short term visitors’ visas.  On 14 May 2007 the appellant lodged an application for protection visas with the Department of Immigration and Multicultural and Indigenous Affairs.  A delegate of the first respondent refused the application for protection visas on 28 May 2007.  On 20 June 2007 the appellants applied to the Tribunal for a review of that decision.

3. In his protection visa application, the appellant claimed that he owned a clothing and jewellery business.  He claimed to have been targeted by extortionists because he was a businessman.  When he asked the police for help they asked for bribes, which he refused to pay.  On one occasion he was locked up in the police station for three hours.  His communication with the police angered the thugs; they broke the glass shield of his place of business, stole money from the cash registers and beat his workers.  He had to close the business and leave the country.  He had no confidence that the authorities will protect businessmen without bribes. 

4. The appellant wife relied on the claims of her husband as part of the family unit.  It will be convenient in these reasons to refer to the appellant husband as the appellant.

   REFUGEE REVIEW TRIBUNAL

5. The Tribunal notified the appellant that it was not able to make a decision favourable to the appellant on the information before it.  The appellant did not provide any further information to the Tribunal to support his claims and he did not attend the hearing before the Tribunal to which he had been invited.  On the information before it, the Tribunal was not satisfied that the appellant was a businessman; that he was subject to demands by thugs; that the appellant had asked the police to help him; that the police had asked for bribes; that the police did not help him; or that thugs damaged his property, threatened him or harmed him.

   FEDERAL MAGISTRATES COURT

6. On 15 October 2007 the appellant filed an application for judicial review of the Tribunal’s decision in the Federal Magistrates Court. The appellant claimed that the Tribunal breached s 424A(1) of the Migration Act 1958 (Cth) (“the Act”) and did not disclose information in accordance with that section; that the Tribunal made an error of law in that it did not accord procedural fairness and that the appellant had been denied natural justice because the Tribunal had concluded that the appellant’s claims were not Convention related.

7. The Federal Magistrate referred to the reasoning of Allsop J in SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCR 1195 and SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238 and noted that the Tribunal had not made positive findings of fact about the position of the appellant, but rather had rejected his claims because of its inability to be satisfied, on the information before it, that Australia owed the appellant protection obligations under the United Nations Refugee Convention 1951 as amended by the Protocol (1967) Relating to the Status of Refugees (“the Convention”). Section 424A(1) was not enlivened.

8. The Federal Magistrate held that s 422B of the Act applied and that the Tribunal was not required to afford the appellant common law natural justice. The appellant was only entitled to the rights granted to him under Part 7 of the Act. The Tribunal had complied with the requirements of the Act and accorded the appellant procedural fairness.

9. The Federal Magistrate rejected the appellant’s claims that the Tribunal had denied the appellant natural justice by concluding the appellant’s claims were not Convention related.  The Tribunal made its decision because it was not satisfied that the appellants complied with the requirements of the Convention.

10. The Federal Magistrate concluded that none of the grounds identified supported any claim of jurisdictional error.  Further, it was not apparent, on a fair reading of the Tribunal’s decision, that any other error had been made. The appellant’s application was dismissed.

    APPEAL TO THIS COURT

11. The notice of appeal to this court was filed on 15 May 2008. The notice of appeal contained three grounds. The first ground read: “The Honourable Federal Magistrates Court erred in interpreting the construction of s 424A of the Migration Act 1958 (“the Act”).”

12. The second ground read: “His Honour failed to determine that the purpose of s 424A was not served in the proceeding of this applicant.”

13. The third ground read:  “The Honourable Court also erred in law determining that the Refugee Review Tribunal (“the Tribunal”) was in a breach of procedural fairness.”

14. These grounds are in the same terms as those appearing in the notices of appeal in two other matters which are listed before me this week:  see SZJXU v Minister for Immigration and Citizenship [2008] FCA 1129.

15. The appellant appeared in person.  He had the assistance of an interpreter.  His wife did not appear.

16. The appellant initially asserted that he was the author of the notice of appeal.  He later conceded that it had been prepared for him by a “friend”.  He had no understanding of what was comprehended by any of the grounds as drafted and was unable to assist the Court in any way.

17. When given the opportunity to elaborate on the grounds or to advance any additional grounds the appellant’s only response was to request a further hearing before the Tribunal.

18. Having examined the Tribunal’s reasons and those of the Federal Magistrate I can discern no basis for finding that any of the alleged grounds has been made out.  Nor have I been able to detect any other jurisdictional error which would warrant the setting aside of the Tribunal’s decision.

19. The appeal should be dismissed with costs.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

Associate:
Dated:        6 August 2008

The appellant appeared in person
Solicitor for the First Respondent:	Sparke Helmore Lawyers

Date of Hearing:	6 August 2008
Date of Judgment:	6 August 2008