SZOGV v Minister for Immigration and Citizenship
[2010] FCA 936
FEDERAL COURT OF AUSTRALIA
SZOGV v Minister for Immigration & Citizenship [2010] FCA 936
Citation: SZOGV v Minister for Immigration & Citizenship [2010] FCA 936 Appeal from: SZOGV v Minister for Immigration & Anor [2010] FMCA 420 Parties: SZOGV v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 824 of 2010 Judge: BUCHANAN J Date of judgment: 31 August 2010 Cases cited: Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 Date of hearing: 23 August 2010 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 13 Counsel for the Appellant: The Appellant appeared in person Solicitor for the First Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 824 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZOGV
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BUCHANAN J
DATE OF ORDER:
31 AUGUST 2010
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal is 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
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 824 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZOGV
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BUCHANAN J
DATE:
31 AUGUST 2010
PLACE:
SYDNEY
REASONS FOR JUDGMENT
BUCHANAN J:
The appellant is a citizen of India who arrived in Australia on 26 June 2009 and applied for a Protection (Class XA) visa on 4 August 2009. A delegate of the first respondent (“the Minister”) decided on 30 October 2009 not to grant a visa to the appellant. The appellant applied on 24 November 2009 to the Refugee Review Tribunal (“the RRT”) for review of the delegate’s decision. On 26 February 2010 the appellant was informed that the RRT had affirmed the delegate’s decision that he should not be granted a protection visa.
The appellant then made an application for judicial review to the Federal Magistrates Court of Australia (“the FMCA”). In a judgment delivered on 17 June 2010 (SZOGV v Minister for Immigration & Anor [2010] FMCA 420) the FMCA dismissed the application. From the judgment of the FMCA an appeal has now been brought to this Court.
Judicial review of a decision of the RRT is only available to correct jurisdictional error. It was therefore necessary, in order for the appellant to succeed before the FMCA, that the decision or processes of the RRT were affected by jurisdictional error. The grounds advanced in support of the application for judicial review made to the FMCA were in the following terms:
The Second Respondent committed jurisdictional error by failing [sic] address the applicant’s claims in the way they were made.
Particulars:(a)The applicant stated in his protection visa application that he was an active member of Indian National Congress.
(b)He claimed that CPI(M) Gundas and local secretary Peter threatened to kill him and forced him to stop his business.
(c)The Tribunal did not consider the way that he claimed to be a member of INC in rejecting his claims of involvement with INC.
In support of his application for a protection visa, the appellant made various claims to be under threat from “the ruling government” in India because it was led by the CPI(M) (the Communist Party of India (Marxist)). He made a series of assertions to the effect that his saw milling business had been subjected to unjustified legal proceedings by a neighbour (Mr Peter) for political reasons. The appellant asserted that matters came to a head in 2008, two years after he claimed that the CPI(M) came into power in his district, and he then became subjected to threats to his life. He stated that he was afraid for his own life and that of his family. Those matters were all set out in the decision of the RRT which went on to consider those matters, and his detailed evidence before the RRT itself. The RRT accepted that there was a history of civil litigation between the appellant and his neighbour’s wife, which concluded in 2003, but did not accept that this was evidence of politically motivated conduct by the neighbour, Mr Peter. The RRT concluded that “any difficulties that the applicant has faced are due to personal reasons as opposed to political reasons”.
The RRT also considered the appellant’s claim to be a member of the INC (Indian National Congress) but, after analysing his evidence and comparing it with independent country information available concerning the events of which he had spoken, including his claim to have been actively involved in district elections, the RRT concluded that the claims were false.
In the light of the grounds stated in the application for judicial review the findings of the RRT demonstrate clearly that the grounds had no substance. The claims of the appellant were rejected after a consideration of their merits. That is also the conclusion which was reached by the FMCA.
The judgment of the FMCA makes it apparent that the appellant did very little to attempt to provide any support for the assertions in these grounds at the hearing before the FMCA although he added orally a complaint that the RRT had not considered documents which he had provided to it. Notwithstanding the appellant’s unwillingness or inability to develop any satisfactory argument in relation to any of the matters upon which he wished to rely, the FMCA dealt carefully with each of his assertions and found that they were not established. The judgment of the FMCA concluded (at [50]):
50.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 in support. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses, both at the hearing and in writing. The Tribunal also put to the Applicant independent country information before it and invited the Applicant to comment upon it. Again, both at the hearing and in writing. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
The grounds of appeal to this Court are stated as follows:
1.His honors [sic] erred in holding that the decision of the Refugee Review Tribunal was a private [sic] clause decision.
3.The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the Refugee Review Tribunal.
4.The Hon. FM failed to take [sic] consideration that the Tribunal decision was unjust and was made without taking into account the full gravity of my circumstances and consequences.
Those grounds of appeal are without any substance. Notwithstanding a direction that he file written submissions in support of his appeal the appellant did not do so. At the hearing of the appeal the appellant made, initially, only three short contributions: he said that his faulty memory had prevented him giving adequate answers to questions by the RRT and the FMCA; he offered to produce a letter from a medical practitioner about his memory; and he offered to produce a certificate that he had been a member of the INC.
The representative of the Minister pointed out, in response, that: no claim of a faulty memory had been made before the FMCA; some claims to this effect had been made before the RRT but had been taken into account; and there was no evidence before the RRT to support the claim. There was, therefore, no reason to conclude that the appellant had not had a full and fair hearing before the RRT (see Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575) or that jurisdictional error had been committed by the RRT.
When invited to make any further submission he wished in support of his appeal, the appellant suggested that the interpreters who assisted him before the RRT and the FMCA may not have translated all he said about his memory problems.
There is no evidence to support any suggestion of inadequate interpretation in this case. There is no basis to conclude that any jurisdictional error was made by the RRT or that the FMCA was wrong to decide that no jurisdictional error had been made.
The appeal to this Court must be dismissed. It is appropriate to dismiss it with costs.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan. Associate:
Dated: 31 August 2010
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