SZEZE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 122 (22 February 2005)

Last Updated: 24 February 2005

FEDERAL COURT OF AUSTRALIA

SZEZE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 122

MIGRATION – No issue of principle


Federal Court Rules 1976 (Cth) O 52 r 38A(1)(d)




























SZEZE V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1728 OF 2004

CONTI J
22 FEBRUARY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	1728 OF 2004

BETWEEN:	SZEZE APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	22 FEBRUARY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs in the amount of $2000.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	1728 OF 2004

BETWEEN:	SZEZE APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	CONTI J
DATE:	22 FEBRUARY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Background and notice of appeal

1 This is an appeal from the orders and reasons for judgment of Federal Magistrate Mowbray made and given on 8 November 2004, whereby his Honour dismissed the appellant’s application purportedly brought pursuant to s 39B of the Judiciary Act 1903 (Cth) for review of the decision of the Refugee Review Tribunal (‘the Tribunal’) made on 29 June 2004. The Tribunal decision affirmed the decision of the Minister’s delegate made on 20 March 2004 not to grant the appellant a protection visa.

2 The appellant, who is a citizen of India and a Hindu, sought protection on the ground that he a had a well founded fear of persecution on the ground of political opinion, namely that he was a member of the Bartiya Janta Party ("BJP") and at risk of persecution by members of the Congress Party. He claimed, in particular, in his application for a protection visa that after a number of people were killed in a train at Godhra, there was fighting between Hindus and Muslims in Gudjarat causing loss of life, that Congress Party members believed the BJP caused the fighting, and that at that time he received threats by telephone from members of the Congress party.

3 The notice of appeal filed 23 November 2004 contained the following purported grounds (read literally):

‘2. The single Judge of the Federal Magistrates Court in his Honors [sic] Judgment delivered on the 8 November 2004 failed to find error of law, Jurisdictional error Procedural fairness and relief Under Section 39 B of the Judiciary Act 1903.

3.	The grounds and relief is very much similar with the recent High Court Judgment – Muin v refugee review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 (8 August 2002). Catchwords: Immigration – Refugee – Protection visa – Decision by Minister to refuse application for visa – Review of decision by Refugee Review Tribunal – Obligation of Secretary of Department of Immigration and Multicultural Affairs to give relevant documents to Registrar for purpose of review – Nature and extent of obligation – Migration Act 1958 (Cth), ss 148(3), 424(1).
4.	The Honorable trial judge erred in considering the real state of affairs of the applicant, the applicant feared harm. And also the present ruling government fail to protect civilians life, which is a worldwide concern today. Honorable Trial judge did not take it into consideration.
5.	S474 of Migration Act is ineffective as per the recent two decisions of the High court of Australia. Honorable trial judge did not consider this in favour of me.
6.	The applicant will face persecution if she returns to his country of origin as there are significant level of violation of human rights, this was not considered by honourable judge.
7.	Recent High Court judgement: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA (14 February 2003).
8.	Recent Federal Court of Australia judgment: SGDB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 74 (14 February 2003).’

4 This purported notice of appeal is identical in form to those reproduced in numerous earlier appeals that I heard in 2004: SZAIL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 266; SZAXN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 275; SZAQW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 635; SZAKU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 892; SZALF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1065; and SZAUV & Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1745.

5 The appellant did not provide the Court with an outline of submissions, despite my direction made on 14 December 2004. Furthermore, the appellant's name was called outside the courtroom on the day of the hearing and it was apparent that the appellant was not present in the courtroom or the precincts of the court. In those circumstances, I heard the appeal in the appellant’s absence pursuant to O 52 r 38A of the Federal Court Rules 1976 (Cth) and dismissed the appeal with a view to publishing reasons for judgment in due course. Those reasons now appear below.

6 As I have stated on many earlier occasions in relation to what may be described as a standard form of notice of appeal for instance adopted by the appellant in this matter, it is readily apparent that paragraphs 2, 3, 7 and 8 of that purported notice of appeal do not specify any viable grounds of review, but merely re-state the decision appealed from, and refer to case law in general terms, without in any way purporting to relate or apply the same to the circumstances and matters set out in the reasons for judgment of Mowbray FM below, or the reasons for decision of the Tribunal, or otherwise to explain the relevance of the same to any alleged circumstances of the appellants. None of that material satisfies the requirements of Order 52 rule 13(2)(b) of the Federal Court Rules 1976 (Cth), which require an appellant to state ‘briefly, but specifically the grounds relied upon in support of the appeal’. Moreover the general assertions the subject of grounds 4, 5 and 6 do not establish any viable basis for impugning the reasons for judgment below.

The Tribunal’s decision

7 The Tribunal wrote to the appellant on 29 April 2004 pursuant to s 424 of the Act requesting further information from the appellant in relation to his purported claims about religious and political persecution in India. It summarised its country information in relation to India which indicated (inter alia) that India was a "longstanding parliamentary democracy, with an independent judiciary, a broad range of democratic institutions and a comprehensive constitutional framework for the protection of human rights including the National Human Rights Commission". The appellant was asked whether he disagreed with this assessment of India and if so, whether he could provide any information to demonstrate the basis for belief to the contrary. There was no response from the appellant to that request for additional information. The request was followed up with an invitation dated 30 April 2004 to attend an oral hearing and give evidence, however the appellant indicated that he did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review based on the information then before it.

8 The Tribunal found that the information provided by the appellant in his application for review was stated in the most general terms and was not of sufficient detail to substantiate the appellant’s claim that he feared persecution upon return to India. It concluded that the appellant was not a person to whom Australia has protection obligations, stating that:

‘The information that the applicant provided does not give adequate details of the applicant’s involvement in the BJP or of the threats made by members of the Congress Party. He has not explained why the threats from members of the Congress Party continued after the applicant relocated to Andhra Pradesh. The Applicant does not explain the inconsistency between the statement in his protection visa application that he lived at the same address in Ahmedabad from 1969 to 2003 with his statement that he worked in Ahmedabad between 1993 to 2001 and then in Andhra Pradesh from 2001 to 2003.
The applicant has not responded to the country information cited by the delegate in the primary decision or the information put to the applicant by the Tribunal in its letter of the 29 April 2004. The information suggests and the Tribunal accepts that India is a longstanding democracy, with an independent judiciary and a comprehensive framework for the protection of human rights. India is a secular state with rights of religious freedom, freedom of speech and association. The Tribunal accepts the country information which indicates that the government does not tolerate acts of religious intolerance and has taken steps to promote interfaith understanding.
The recent national elections have resulted in Congress Party forming a national coalition government however the Congress Party has consistently promoted a secular state with tolerance of all religious beliefs. There is no evidence available to the Tribunal which would suggest that Congress would not continue to support the policies of democratic rule, religious tolerance and freedom of association.
In view of the vagueness of the applicant’s claims and the country information available the Tribunal does not accept that the applicant faces a real chance of persecution for reasons of his membership of the BJP or for reasons of his Hindu faith.’
The Federal Magistrate’s decision

9 The appellant lodged an application for judicial review of the decision of the Tribunal on 25 July 2004. The grounds set out in the application were that the Tribunal:

‘1. deprived the appellant of natural justice;
2. gave a decision which was preset in the back of its mind and did not reflect the material claims made by the appellant;
3. did not take into account the facts and independent country reports supporting the appellant’s claims;
4. made a decision which should be ordered to be reconsidered in accordance with the requirements of the Migration Act 1958 (Cth); and
5. made an error of law being an incorrect application of the law to the facts as found by the person who made the decision.’

10 The appellant also filed a letter on 27 September 2004 that effectively sought impermissible merits review and attempted to explain why he did not attend the Tribunal hearing. The appellant did not seek to supplement his application with oral submissions at the hearing conducted before the Honourable Federal Magistrate Mowbray. Accordingly, his Honour found that there was ‘nothing to support the grounds claimed by the applicants’.

11 Significantly, his Honour stated:

‘The findings of the Tribunal were reasonably open to it on the material before it. I am satisfied that the Tribunal made no legal error going to jurisdiction in coming to its decision. I find that the decision of the Tribunal is a privative clause decision having regard to the High Court decision in S157/2002.’
My conclusions

12 I have before me a letter purportedly signed by the appellant and dated 3 February 2005 addressed to "The Magistrate, Federal Court of Australia", which requests a change in hearing date from the 18 February 2005 owing to the appellant’s asserted need to attend an appointment for an X-ray and ultrasound on that day for a shoulder injury purportedly suffered at work. Attached to the letter is a Workcover NSW Medical Certificate noting the date of the X-ray and ultrasound as well as the doctor’s recommendation that the employee undertake light duties. By letter dated 7 February 2005, my associate informed the appellant that owing to the Minister’s refusal to consent to a change in the hearing date, I was unwilling to set the matter down for a later date. The appellant was warned that should he or his legal representative fail to attend court at the scheduled time, his appeal might be dismissed for want of prosecution. A copy of this letter was sent to the Minister’s solicitors. The appellant replied to this letter with a facsimile dated 17 February 2005 addressed again to "The Magistrate, Federal Court of Australia". My associate was personally made aware of the existence of this letter on the morning of the 18 February 2005, being the date of hearing. This letter noted my earlier correspondence and requested me to again consider delaying the hearing, or possibly arranging a hearing by telephone.

13 When the matter came on for hearing, as scheduled, later that morning, I accepted the submission of the respondent’s solicitor, Ms Rayment, that I proceed with the hearing of the appeal pursuant to O 52 r 38A(1)(d) of the Federal Court Rules 1976 (Cth).

14 The appellant lodged his purported notice of appeal on 23 November 2004. The purported notice of appeal does not particularise any error in the decision of his Honour or the decision of the Tribunal. It merely alleges that Mowbray FM erred in failing to find error of law, jurisdictional error and lack of procedural fairness. There is no proper factual basis for such allegations and no support for these grounds of review is evident from his Honour’s judgment. I have no additional material before me that would enable me to reach any other outcome owing to the failure of the appellant to attend his hearing or to provide the Court with any written submissions.

15 The appellants have therefore not articulated any conceivable error on the part of Mowbray FM in the reasons for judgment below, or any other basis for upholding the appeal. The purported grounds of appeal are stereotype in content and bear no viable connection or relevance to any finding specifically made by his Honour or for that matter the Tribunal. Again the unfortunate conclusion inferentially to be drawn is that this appeal has been brought for the purpose merely of endeavouring to delay the appellants’ return to their place of origin.

16 Accordingly, I find that the respondent has no case to answer and the notice of appeal is dismissed. I order the appellant to pay the Minister’s costs of the appeal in the amount of $2000.

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

Associate:

Dated: 22 February 2005

Appellant failed to appear
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	18 February 2005
Date of Judgment:	22 February 2005