SZODZ v Minister for Immigration and Citizenship

[2010] FCA 842

FEDERAL COURT OF AUSTRALIA

SZODZ v Minister for Immigration & Citizenship [2010] FCA 842

Citation:		SZODZ v Minister for Immigration & Citizenship [2010] FCA 842
Appeal from:		SZODZ v Minister for Immigration & Citizenship [2009] FMCA 270
Parties:		SZODZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 461 of 2010
Judge:		NORTH J
Date of judgment:		2 August 2010
Date of hearing:	2 August 2010
Date of last submissions:	2 August 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	17
Counsel for the Appellant:	Self-represented
Counsel for the First Respondents:	Ms Raymet
Solicitor for the First Respondents:	Sparke Helmore

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 461 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZODZ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE OF ORDER:	2 AUGUST 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal is dismissed.

2.        The appellant is to pay the first respondent’s costs fixed at $2000. 

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
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 461 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZODZ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE:	2 AUGUST 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. Before the Court is an appeal from a judgment of the Federal Magistrates Court delivered on 13 April 2010.  On that day the federal magistrate dismissed an application for review of a decision of the Refugee Review Tribunal, dated 19 January 2010, in which the Tribunal affirmed a decision of the delegate of the first respondent to refuse the appellant a protection visa. 

2. The appellant was born in 1966 and is a citizen of India.  He claimed that he was from the Ezhava or untouchable caste, and grew up in Kerala.  He claimed that he was a supporter of Sree Narayana Dharma Pariplana Yogam (SNDP), and claimed to fear persecution by the Communist Party of India (Marxist). 

   THE DECISION OF THE TRIBUNAL

3. The Tribunal accepted that the appellant had completed his Leaving Certificate in 1981 in Kerala.  He then spent from 1983 to 1986 undertaking a Bachelor of Arts at the Paradia Institute of Varanasi.  During this time he also worked in Delhi, and continued to work there until 1992.  In 1992 he returned to Kerala to complete a course to become an electrician.  The following year he went to Bombay to undertake a nine month gemmology course.  Between 1993 and 2008 he worked in the jewellery trade in Goa and Bombay.

4. The Tribunal accepted that the appellant was involved in the SNDP in his last two years at school.  It also accepted that whilst studying for his degree and working in Delhi, he kept up with what was happening with the SNDP in Kerala through circulars, but he did not work for the SNDP in Kerala in those years.  The Tribunal accepted that the appellant was again actively involved in the SNDP whilst studying in 1992 and 1993.  It accepted that between 1993 and 2008, whilst living in Goa and Bombay, the appellant continued to receive SNDP circulars and, when he returned to Kerala to visit his family, he did some SNDP work. 

5. The Tribunal also accepted that the appellant had suffered an injury to his head in a fight in 1998.  It remarked that this was the only occasion on which the appellant claimed to have suffered any injury.  The other problems the appellant described to the Tribunal were that people used to telephone his family in Kerala and asked when he was coming back, and people from the Communist Party of India telephoned him in Goa and Bombay because they wanted him to leave the SNDP and join the Community Party of India.  The Tribunal did not accept that the Communist Party of India tried to recruit him because the Tribunal found that the appellant was not an important figure in the SNDP. 

6. The Tribunal also found that the appellant’s return to Kerala in 2009 immediately before coming to Australia suggested that the appellant did not fear being persecuted in Kerala.  Similarly, the Tribunal relied upon the fact that the appellant returned to Kerala whilst he was living in Goa and Bombay as evidence that the appellant did not fear persecution in Kerala because of his involvement with the SNDP.  The Tribunal found that there was no real chance that the appellant, if he returned to his home in Kerala, would be persecuted for reasons of his involvement with the SNDP by the Communist Party of India or organisations associated with it or any other political party. 

7. The Tribunal then turned to the question of the appellant’s membership of the Ezhava caste.  It raised with the appellant the fact that the members of the caste enjoy affirmative action in respect of government appointments.  The appellant agreed.  The Tribunal rejected the proposition that there was a real chance that the appellant would be discriminated against or persecuted for reasons of his belonging to the Ezhava caste.

   THE PROCEEDING IN THE FEDERAL MAGISTRATES COURT

8. The appellant then appealed to the Federal Magistrates Court. The appellant was not legally represented, but was assisted by a Malayalam interpreter. He relied upon three grounds of appeal. First, he contended that the Tribunal acted in breach of s 424A of the Migration Act 1958 (Cth) (the Act) in that it failed to abide by an undertaking to give the appellant an opportunity to make written submissions about inconsistencies in his evidence and his lack of credibility. Second, he alleged that the Tribunal failed to consider an integer of his claim by failing to consider whether or not a lower caste in India was discriminated and ill-treated by the upper caste Hindus and not able to access effective protection. Third, he contended that the decision was affected by jurisdictional error in that the Tribunal failed to carry out its function to take into account or consider the claims made by the appellant in relation to the attack made on him in 1998.

9. The federal magistrate dealt with each of these grounds.  In relation to the first ground, the federal magistrate determined, based on the Tribunal’s reasons and all the evidence before her, that the Tribunal did not give any undertaking as alleged.  In any event, the federal magistrate found that the appellant was given an opportunity to provide written submissions following the conclusion of the hearing, and utilised that opportunity by providing further written material.

10. Then the federal magistrate examined the evidence before the Tribunal to determine whether any of that evidence fell within the category of information for the purposes of s 424A. She found that the evidence to which the Tribunal had regard was the oral evidence given at the hearing by the appellant and country information relating to the Ezhava caste in Kerala. Both of these categories of information were excluded by s 424A(3) of the Act. The federal magistrate then determined that the Tribunal was not bound by the provisions of s 424A(1) to disclose to the appellant inconsistencies in his evidence.

11. The federal magistrate then dealt with the second ground.  She first observed that no claim was squarely raised on the evidence and material before the Tribunal that the appellant suffered discrimination and ill treatment by members of upper caste Hindus or that he was unable to access effective state protection.  The federal magistrate examined the findings of the Tribunal and determined that it had considered and rejected the contention that the appellant was discriminated against and ill treated by reason of his membership of a lower caste.  The federal magistrate also observed that the Tribunal, having found that the appellant had no subjective fear of persecution, had no reason to consider further the issue of possible persecution as a result of membership of a backward caste.

12. In relation to the third ground, the federal magistrate determined that the Tribunal did in fact take into account the appellant’s claim to have suffered injuries to his head in 1998.  A fair reading of the Tribunal’s decision made it clear that the Tribunal accepted the claim.  The Tribunal rejected the explanation given by the appellant that the reason for the attack was to recruit him into the Communist Party of India.  That explanation was rejected because the Tribunal assessed the appellant’s involvement with the SNDP as at a low level.  The federal magistrate determined that these findings were open on the evidence and on the material before it. 

13. The federal magistrate concluded, at [56] and [57]:

    56.Otherwise, a fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant, explored those claims with the applicant at a hearing and had regard to all material provided by the applicant in support.  The Tribunal put to the applicant matters of concern it had about his evidence and noted the applicant’s responses.  The Tribunal gave the applicant a further two weeks after the hearing to provide any further information or to provide further material to the Tribunal in support of his claim.

    57.The Tribunal had regard to the post-hearing material and identified independent country information to which it had regard.  The Tribunal made findings based on the evidence and material before it.  Those findings of fact were open to the Tribunal and the evidence and material before it and for the reasons it gave.  A fair reading of the Tribunal’s decision record makes clear the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law. 

    THE PROCEEDING IN THIS COURT

14. On 30 April 2010 the appellant filed a notice of appeal in this Court.  The grounds were stated as follows:

    1.His honors judgment delivered on the 13 April 2010 failed to find the error of law, jurisdictional error, procedural fairness and relief under section 39B of the judiciary Act 1903.

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

    3.The Hon. FM failed to take consideration that the Tribunal decision was unjust and was made without taking into account the full gravity of my circumstances and consequences.

15. The appellant was not legally represented on the appeal, but was assisted by a Malayalam interpreter.  The role of the Court on judicial review was explained to the appellant and, when asked to support the grounds of appeal, he said that he had great difficulty in thinking about going back to India because he was scared.  He said that the Tribunal had rejected his case because he was unable to provide sufficient evidence, but he argued that he had provided all the evidence which he had.  As a result he said he did not get a reasonable hearing. 

16. None of the grounds of appeal are particularised.  The first respondent, in written submissions filed on the appeal, contended that in the absence of particulars the notice of appeal is meaningless and raises no case to answer on appeal.  The first respondent further argued that no error was apparent in the judgment or approach of the federal magistrate.  I accept each of the arguments of the first respondent.  It is possible to regard the first ground of appeal as contending that the federal magistrate erred in her determination of each of the three grounds of appeal before her.  If that be the argument then it is without foundation.  Not only did the Federal Magistrate thoroughly canvass the grounds of appeal before her, she rightly, given the unrepresented position of the appellant, thoroughly reviewed all the possible arguments under each ground upon which the appellant might seek to rely.  Finally, the concluding paragraphs [56] and [57] indicate that she had considered the Tribunal’s decision and found that it was made in accordance with the statutory provisions. 

17. For those reasons the appeal must be dismissed. 

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:       11 August 2010