SZOAX v Minister for Immigration and Citizenship

[2010] FCA 860

FEDERAL COURT OF AUSTRALIA

SZOAX v Minister for Immigration and Citizenship [2010] FCA 860

Citation:		SZOAX v Minister for Immigration and Citizenship [2010] FCA 860
Appeal from:		SZOAX v Minister for Immigration & Citizenship & Anor [2010] FMCA 322
Parties:		SZOAX v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 670 of 2010
Judge:		COLLIER J
Date of judgment:		11 August 2010
Legislation:		Migration Act 1958 (Cth) Div 4 of Pt 7, ss 422B, 424, 425
Date of hearing:	11 August 2010
Place:	Brisbane (Heard in Sydney)
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	16
Solicitor for the Appellant:	The appellant appeared in person with the assistance of an interpreter.
Solicitor for the First and Second Respondents:	Mr R Baird of Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	NSD 670 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOAX
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	11 AUGUST 2010
WHERE MADE:	BRISBANE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

The appeal be dismissed with costs.

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
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	NSD 670 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOAX
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE:	11 AUGUST 2010
PLACE:	BRISBANE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

1. This is an appeal against the decision of Cameron FM delivered on 20 May 2010 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 30 October 2009. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant.

   BACKGROUND

2. The appellant is a citizen of India who arrived in Australia on 9 July 2008. On 19 August 2008 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 10 November 2008. On 4 December 2008 the appellant applied to the Tribunal for a review of that decision.

3. The appellant claimed that he became a target of the Communist Party because of his involvement in the student wing of the Congress Party in Kerala (KSU) while he was attending the Industrial Training Institute between 1996 and 1998. After he left the institute, he claimed to have joined the Kerala Catholic Youth Movement (KCYM), and became involved in various Catholic social movements. He claimed that he was elected State Syndicate Member and later State Secretary. He claimed that this attracted opposition from community members due to his opposition to alcohol, his involvement in the newspaper “Sarga Dhwani”, and his prayer teaching activities. He was threatened by “alcohol mafia leaders”, as well as by Hindu and Muslim extremists, and had been attacked.

   REFUGEE REVIEW TRIBUNAL

4. The Tribunal accepted that the appellant is a Catholic and that he was involved in the KCYM, serving as General Secretary in 2007. However, the Tribunal found that there was a considerable degree of exaggeration in his claims as set out in his application for a protection visa concerning his involvement with the Congress Party, the newspaper, and the Alcohol Free Church and Society Campaign. The Tribunal also did not accept that he promoted the “Taize prayer” in Hindus areas or that this resulted in him being threatened or attacked, noting that he did not make this claim in his application for a protection visa. The Tribunal also referred to independent evidence regarding Catholics in Kerala to the effect that adequate state protection is available to those who feel threatened and persecuted.

5. The Tribunal considered the totality of the appellant’s circumstances and concluded there was no real chance he would be persecuted for reasons of his religion, political opinion or his membership of any particular social group for the purposes of the Convention if he returned to his home in Kerala.

   FEDERAL MAGISTRATES COURT

6. On 25 November 2009 the appellant filed an application for judicial review of the Tribunal’s decision. In his application the appellant contended that:

   1.The decision made by RRT jurisdictional error.

   2.Breach of natural justice.

   3.Breach of procedural fairness.

7. The Federal Magistrate interpreted the first complaint to be an allegation that the Tribunal did not observe its obligations under the natural justice hearing rule. In this regard, his Honour noted that the natural justice hearing rule is codified by s 422B of the Migration Act 1958 (Cth) (“the Act”) in those provisions found in Div 4 of Pt 7 of the Act. His Honour found that whatever obligations the Tribunal may have had pursuant to s 424A of the Act, these were discharged through its use of the procedure under s 424AA. Otherwise, the Tribunal’s decision was based on information which was excluded from s 424A(1) by reason of s 424A(3). Further, the Tribunal’s decision record demonstrated that at several points during its hearing it identified various matters of concern in order that the appellant might address them, thereby complying with its obligations under s 425 of the Act. His Honour also found that it was not apparent that the Tribunal had breached any of its other obligations set out in the various sections contained within Div 4 of Pt 7, or that there was any indication of bias in its decision.

8. In respect to the appellant’s oral submission that the country information relied upon by the Tribunal dated from 2006, and should not have been preferred over the more contemporaneous accounts given by him in his evidence, the Federal Magistrate stated that the weight which the Tribunal accords to any particular evidence is part of its factual matter for it. Similarly, the appellant’s contention that he was unable to access adequate state protection in Kerala merely sought to challenge the merits of the Tribunal’s decision.

9. Having found that the Tribunal decision was not affected by jurisdictional error, his Honour dismissed the application for review.

   APPEAL TO THIS COURT

10. By Notice of Appeal filed on 9 June 2010, the appellant raised the following grounds of appeal against the decision of Cameron FM:

    1.I am citizen of India, arrived in Australia ad lodged application for Protection (Class XA) visa with the DIAC under Migration Act 1958.

    2.A Delegate of the Minister for DIAC refused my application to grant to Protection visa.

    3.I applied for review of that decision with the RRT and Tribunal affirmed the delegate’s decision.

    4.The Honourable Federal Magistrate court didn’t consider the ground of my application.

    [Errors in original]

    SUBMISSIONS OF THE PARTIES

11. The appellant was self-represented in these proceedings. He filed no written submissions. At the hearing of the appeal before me the appellant submitted that he had given evidence both in the Tribunal and the Court below, however he had been unsuccessful. He submitted that the Tribunal had accepted his evidence but still found against him. He submitted that he would have problems if he returned to India. He submitted that his wife and child were still in India.

12. The Minister was represented by Counsel. Written submissions were filed on behalf of the Minister prior to the hearing.

    FINDINGS

13. Grounds 1, 2 and 3 raised in the notice of appeal recite a brief history of events relevant to the endeavours of the appellant to obtain a protection visa under the Act. They provide no basis of appeal from the decision of his Honour below.

14. In ground 4 the appellant claims that the Federal Magistrate did not consider the grounds of his application. In my view this ground of appeal has no substance. The Federal Magistrate clearly considered in detail the application for judicial review of the decision of the Tribunal, and only after careful analysis of the appellant’s case concluded that no jurisdictional error on the part of the Tribunal had been demonstrated.

15. In my view ground 4 of the notice of appeal cannot be substantiated.

    CONCLUSION

16. I can identify no error in the decision of the Federal Magistrate below. Further, it is not open to the Court to review the decision of the Tribunal on its merits. The Tribunal concluded, after review of the material before it and hearing evidence from the appellant, that the appellant was not entitled to protection under the Refugee Convention. No reasons have been demonstrated by the appellant warranting the Court quashing that decision either in his grounds of appeal or in his oral submissions today. The appeal should be dismissed with costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate:

Dated:       11 August 2010