SZNNA v Minister for Immigration and Citizenship

[2010] FCA 211

FEDERAL COURT OF AUSTRALIA

SZNNA v Minister for Immigration and Citizenship [2010] FCA 211 

Citation:	SZNNA v Minister for Immigration and Citizenship [2010] FCA 211
Appeal from:	SZNNA v Minister for Immigration & Anor [2009] FMCA 1171
Parties:	SZNNA v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number(s):	NSD 1454 of 2009
Judge:	NORTH J
Date of judgment:	3 March 2010
Date of last submissions:	3 March 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	18
Counsel for the Appellant:	Appeared in person
Counsel for the Respondents:	L Clegg
Solicitor for the Respondents:	Sparke Helmore

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	NSD 1454 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZNNA
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE OF ORDER:	3 MARCH 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed

2.The appellant pay the first respondent’s costs, fixed in the sum of $3000

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 Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	NSD 1454 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZNNA
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE:	3 MARCH 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Before the Court is an appeal from orders made by the Federal Magistrates Court on 4 November 2009.  On that day, the federal magistrate dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) dated 11 March 2009 which affirmed the decision of the delegate of the first respondent, the Minister for Immigration and Citizenship, not to grant the appellant a protection visa. 

   BACKGROUND

2. The appellant is a citizen of India. He comes from Kerala and claims to be a member of the Kerala Catholic Youth Movement and the All-India Trade Communist Union.

3. The appellant claims to fear harm if he returns to India. These fears arise from experiences which occurred in 2000. At that time the appellant claims to have been working as a labourer when, together with some other people, he discovered a cache of alcoholic drinks.  As a result of this discovery, the appellant claims that he and his colleagues were attacked by a well-known gangster, Manichan. 

4. In another encounter with Manichan’s gangsters, the appellant claims to have been harmed when he became involved with a trade union dispute concerning Manichan’s gangsters.  On this occasion, the appellant claims that one of his co-workers was killed after being mutilated by the gangsters, and that the appellant himself was also injured.  In both instances, the appellant claimed that the police were advised of the incidents but refused to do anything.

5. The appellant went to work in Dubai between November 2005 and December 2007.  On his return, he claimed that Manichan sent some persons to kill him.  The appellant was not at home at the time but his parents were injured.  About this time, the Kerala Catholic Youth Movement invited the appellant to come to Australia to attend World Youth Day.  He applied for a protection visa in August 2008.

   THE DECISION OF THE TRIBUNAL

6. The Tribunal accepted that the appellant was a member of the Kerala Catholic Youth Movement and the trade union.  It accepted that the appellant went to Dubai in November 2005, and returned to India in December 2007, and then returned to Dubai in February 2008, staying there until April 2008. The Tribunal also accepted independent country information that Manichan was a criminal and liquor contractor, who had engaged in violence, and had influence with the authorities in Kerala. 

7. However, the Tribunal did not accept that the appellant had become involved with Manichan’s activities.  The Tribunal drew attention to a number of inconsistencies in the evidence given by the appellant, in particular the fact that, despite the alleged serious attacks in around 2000, the appellant lived at his usual address in Kerala, and worked in Kerala until he went to Dubai in 2005. Similarly, the Tribunal regarded as inconsistent with his claims the applicant’s preparedness to return to India in December 2007, and remain there until February 2008 and return again in April 2008 before leaving for Australia in July 2008. 

8. The Tribunal also had regard to country information which indicated that Manichan had been in custody since November 2000. 

9. As a result of these findings, the Tribunal refused the application for review.

   THE JUDGMENT OF THE FEDERAL MAGISTRATE

10. The appellant then applied to the Federal Magistrates Court for a review of the decision of the Tribunal.  The appellant was legally represented before the Federal Magistrates Court.  The appellant argued that the Tribunal had fallen into jurisdictional error because it had failed to consider the recording of the interview of the appellant before the delegate of the first respondent.

11. The federal magistrate carefully analysed the evidence and came to the view that the appellant had not satisfied the Court, on the balance of probabilities, that the Tribunal had failed to consider or listen to the record of interview.  The federal magistrate then considered the evidence contained in the record of interview, to determine whether it would have assisted the appellant, and found that it would not. 

12. The appellant then argued that if he had known that the Tribunal had failed to take account of the record of interview, he would have conducted his case before the Tribunal differently.  The federal magistrate rejected this ground for two reasons. First, he said that he was not satisfied that the Tribunal had not listened to the record of interview.  Second, he found that there was no evidence from the appellant to support the proposition that he would have run his case differently before the Tribunal had he been aware that the Tribunal had not listened to the record of interview.  Consequently, the federal magistrate dismissed the application. 

    THE APPEAL

13. On 18 December 2009, the appellant filed a notice of appeal in this Court.  The grounds of appeal were as follows:

    1)       The Honourable FM failed to consider the grounds of my application such as error of law made by the tribunal.  The court below erred in that it ought to have found that on the evidence before the tribunal it was open to the tribunal to find that the appellant was a refugee within the Act.

    2)       The tribunal was unsatisfied that there is a real chance that I would suffer harm amounting to persecution if I returned to India. This is a serious Jurisdictional error made by the Tribunal. 

14. The grounds of appeal raise no justiciable issue.  The first ground does not give any particulars of the error of law which it is said the federal magistrate failed to consider.  The second sentence of the first ground seeks to challenge the findings of fact and to do so on a basis which would not, in any event, reveal jurisdictional error.  Even if the second sentence was made good before the Federal Magistrates Court it would not have amounted to establishing jurisdictional error.  The second ground is equally unparticularised.  There is an allegation of serious jurisdictional error but it is not said how that jurisdictional error was constituted. 

15. The appellant was directed to file a written outline of argument on the appeal.  No such document was filed.  The Court explained to the appellant on the hearing of the appeal the scope of argument available on a judicial review. In response, the appellant explained that he had been without a job for a year, that he was suffering mental anguish as a result of his situation and that he was not aware of what he should present by way of argument to the Court.  This led him to apply for an adjournment of the appeal in order to allow some time to determine what arguments he should present.  The adjournment was refused on the ground that no sufficient reason was made out to justify an adjournment.  The appellant was then asked whether he had anything further to say.  He responded that he had not studied his case properly and was not mentally fit to address the Court further.

16. Therefore, the position before this Court is that the grounds of appeal do not raise any issue of challenge which can be sensibly considered by this Court.  The oral submissions of the appellant on the appeal also provide no basis upon which the appeal could succeed. 

17. Despite the complete deficiency of argument from the appellant on the appeal, the Court has nonetheless considered whether there is any ground for concluding that the federal magistrate erred in his consideration of the application.  The reasons of the federal magistrate disclose no such error. 

18. Consequently, the appeal must be dismissed.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:       15 March 2010