SZMWR v Minister for Immigration and Citizenship

[2009] FCA 863

FEDERAL COURT OF AUSTRALIA

SZMWR v Minister for Immigration & Citizenship [2009] FCA 863

SZMWR v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 400 of 2009

BESANKO J
7 AUGUST 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 400 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZMWR
Appellant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	7 AUGUST 2009
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 $2,600.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 400 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZMWR
Appellant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE:	7 AUGUST 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of the Federal Magistrates Court: SZMWR v Minister for Immigration & Citizenship & Anor [2009] FMCA 321. On 23 April 2009, that court made an order dismissing the appellant’s application to the Federal Magistrates Court for constitutional writs directed to the Refugee Review Tribunal (“the Tribunal”).

2. The appellant is an Indian national. She arrived in Australia on 18 February 2008. She applied for a Protection (Class XA) visa (“protection visa”) on 31 March 2008. A delegate of the Minister for Immigration and Citizenship refused her application on 15 May 2008. The appellant applied to the Tribunal for a review of the delegate’s decision. The Tribunal conducted a review and, in a decision signed on 9 September 2008, affirmed the decision of the delegate refusing to grant the appellant a protection visa. On 27 October 2008, the appellant made an application to the Federal Magistrates Court for constitutional writs directed to the Tribunal. She amended her application on 2 December 2008. As I have said, on 23 April 2009, the Federal Magistrates Court made an order dismissing the appellant’s application.

3. In essence, the appellant’s ground for seeking constitutional writs directed to the Tribunal was that the Tribunal had not considered her claim for refugee status on the basis that she had a well-founded fear of persecution for reasons of political opinion.

4. The appellant was represented before the Federal Magistrates Court and the submissions made on her behalf were that the Tribunal did not give realistic or genuine consideration to the appellant’s claims, which was a denial of natural justice and procedural fairness, and that the Tribunal concluded its review before giving the appellant a real and meaningful opportunity to present her case. The error made by the Tribunal was also characterised by the appellant as a failure to consider a critical piece of evidence fundamental to the appellant’s contentions of a well-founded fear of persecution for a Convention reason. The appellant was not represented at the hearing before me. She did not prepare written submissions. Her grounds of appeal were as follows:

   “2.The single Judge of the Federal Magistrate Court in his Honours judgement delivered on the 23 April 2009 failed to find error of law, jurisdictional error, procedural fairness and relief under section 39B of the judiciary Act 1903.

   3.The Federal Magistrate failed to take consideration that the Tribunal decision was unjust and was made without taking into account the full gravity of applicant circumstances and consequences of the claim.

   4.The honourable FM did not consider the lack of procedural fairness in the proceeding of Refugee Review Tribunal, in that the Tribunal did not give the applicant a reasonable opportunity to present her claims.”

5. It seems to me that, in the absence of anything to indicate otherwise, the grounds of appeal are that the federal magistrate erred in failing to conclude that the Tribunal did not give realistic or genuine consideration to the appellant’s claims and in concluding its review before giving the appellant a real and meaningful opportunity to present her case. In other words, the appellant is raising the same matters she raised before the Federal Magistrates Court and she is not seeking to raise any new matters.

6. The federal magistrate said that it was “almost impossible to discern any serious claim or well-founded fear of persecution for the reason of political opinion”. He referred to the absence of evidence of persecution for political reasons in the appellant’s application for a protection visa and her application to the Tribunal. He referred to the delegate’s reasons and to the course of the hearing before the Tribunal. He set out in some detail various questions and answers at the Tribunal hearing. I have read those passages carefully. It seems to me there is no reason to doubt the federal magistrate’s conclusion that the Tribunal raised with the appellant on five different occasions during the hearing the grounds for being found to be a refugee under the Refugees Convention and that “at no time did the [appellant] mention anything about any claim relating to political opinion apart from her early reference to ‘political’ as meaning her own family problem”. Nor is there any reason to doubt the following conclusion of the federal magistrate:

   “The Tribunal made it abundantly clear to the Applicant, a university graduate, what needed to be found for the Applicant to be granted a protection visa and the Applicant obstinately kept to her account of her complaints against her stepmother.”

7. The federal magistrate said that there was no basis for the suggestion that the Tribunal had peremptorily concluded the review without taking any steps to determine the details of the claim for refugee status based on political opinion. The federal magistrate said that there was no “critical piece of evidence” such that it could be said that the Tribunal had failed to properly consider the appellant’s claim of persecution for reason of political opinion. The federal magistrate said that there was no evidence of persecution for a Convention reason at all. The federal magistrate concluded that the appellant’s case was entirely misconceived and that there was no jurisdictional error in the Tribunal’s decision. Nothing has been said, and my own examination of the papers reveals, no reason to think that any of these conclusions are erroneous.

8. In the circumstances, the appeal must be dismissed with costs.

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

Associate:

Dated:        11 August 2009

Counsel for the Appellant:	The Appellant appeared in person.
Counsel for the Respondents:	Ms A Mitchelmore
Solicitor for the Respondents:	Sparke Helmore Lawyers

Date of Hearing:	7 August 2009
Date of Judgment:	7 August 2009