SZBCN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 609 (21 April 2005)

Last Updated: 13 May 2005

FEDERAL COURT OF AUSTRALIA

SZBCN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 609

Judiciary Act 1903 (Cth) s 39B






















SZBCN v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
NSD 32 OF 2005



HELY J
21 APRIL 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 32 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZBCN APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	21 APRIL 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.













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	NSD 32 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZBCN APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HELY J
DATE:	21 APRIL 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The appellant is a citizen of India. He claimed to fear persecution at the hands of members of the ADMK political party or their supporters by reason of his involvement in the opposing DMK Party. The Refugee Tribunal (‘the RRT’) did not accept that claim. The RRT noted that the appellant’s claims are based upon the assertion that he was a worker for the DMK political party who was active in the campaign for the seat of Orathanad in the assembly elections in Tamil Nadu which were held in the middle of 2001.

2 The RRT pointed to a number of contradictions in the detailed claims made by the appellant which led the RRT not to accept those claims. The RRT found that the appellant was not an employee of the DMK and was not involved in working for the DMK in the manner which he claimed. The appellant had not come to the adverse attention of leading ADMK figures, nor were false charges laid against him and the appellant would not be at risk of persecution for reasons of his political opinion if he were to return to India in the foreseeable future. Having made those findings the Tribunal said:

‘In his application for review the applicant referred to being of a ‘backward class’ and to being tortured and suffering other forms of discrimination by the ‘forward class people’. In the context in which these remarks were made, it appears this information was provided by way of background, to explain why he allegedly joined the DMK, but the Tribunal has considered whether he would be at risk of future persecution for this reason. The applicant did not pursue this issue at the hearing, and explicitly denied one aspect of it when he said that he had never personally experienced any physical harm. The Tribunal finds, therefore, that he was never "tortured" because he was allegedly a "backward class" person. On the evidence before it, the Tribunal is not satisfied that the applicant is from a "backward class" and would therefore face any detriment in India for such a reason.’

3 An application made under section 39B of the Judiciary Act 1903 (Cth) for judicial review of the RRT’s decision was dismissed by Federal Magistrate Raphael on 22 December 2004. The appellant appeals from that decision. By direction of the Chief Justice the appeal is to be heard before a single judge.

4 The grounds of appeal are as set out in the amended notice of appeal filed on 21 January 2005. The grounds are that:

(i) the Federal Magistrate erred in law by failing to consider that absent physical harm the discrimination because of the social class of the appellant amounted to persecution for one of the Convention reasons;
(ii) the Federal Magistrate erred in not finding that the RRT ignored considerations relevant to the appellant’s credibility, ie his knowledge of the political situation in Tamil Nadu, his knowledge regarding the specific election campaign and stating the correct numbers of votes polled for each party; and
(iii) the RRT failed to make findings on material questions of fact, namely whether the appellant was a worker of the DMK.

5 The first ground of appeal claims that the Federal Magistrate failed to consider whether the discrimination towards the appellant because of his social class amounted to persecution for a Convention reason. This ground is premised on a finding that the RRT did not make. The RRT did not find that the appellant experienced discrimination on account of his social class. Rather, the RRT made a factual finding that it was not satisfied that the appellant was a backward class person. It did so because the appellant did not pursue this issue at the hearing.

6 The précis prepared by the RRT which the appellant agreed to be a fair summary of his situation and claims, contained no reference to backward class persons. The Federal Magistrate found that some people ‘may feel that the evidence does not go quite so far as to indicate that the appellant was not from a "backward class"’ but noted that faulty logic in fact-finding does not constitute jurisdictional error. In my view, the finding which the RRT made was open to it for the reason which it gave. Even if that were not so, at worst the RRT has made a wrong finding of fact rather than committing a jurisdictional error which is a pre-condition to the appellant’s entitlement to relief. This ground of appeal therefore fails.

7 The Federal Magistrate found that the second ground of appeal was not made out. It is evident that the RRT did not ignore these considerations. On the contrary it had regard to them, as appears from a consideration of pages 10 and 16 of its decision. The RRT came to the conclusion that whilst the appellant had some knowledge of the activities of the DMK it did not extend beyond matters which the RRT would expect many citizens of his district to know. The assessment of the significance of such knowledge the RRT found the appellant to have of the political situation in Tamil Nadu was a matter for the RRT to decide. This ground of appeal therefore fails.

8 The error alleged in ground three was not raised before the Federal Magistrate but, in any event, it is without substance. That is because the RRT found that the appellant was not a worker for the DMK as he had claimed. One of the factors which led the RRT to that conclusion was the absence of any corroboration of his asserted association with the DMK. The RRT’s decision was not confined to a conclusion that there was no employment relationship between the appellant and the DMK and that the appellant’s claim was that he was a ‘worker for the DMK political party’ who worked full time for the party. The RRT addressed but did not accept that claim. This ground of appeal also fails.

9 The appellant did not comply with a direction of the Court that he should file a written outline of his submissions prior to the hearing. However, I invited him to put to me any matters upon which he wished to rely in support of his amended notice of appeal. The appellant must have had some assistance in preparing that document and nothing which he put to me this morning goes anywhere near establishing viable grounds of appeal. All that the appellant could tell me was that he made a mistake in giving wrong dates to the RRT because he was nervous and that his life will be in danger if he is forced to return to India. It is no part of my function to engage in a merits review of the RRT’s decision. It follows that the appeal must be dismissed as the appellant has not established error on the part of the Federal Magistrate or jurisdictional error on the part of the RRT.

10 The order which I make is that the appeal be dismissed with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated: 13 May 2005

	The appellant appeared in person
Counsel for the Respondent:	Ms R A Pepper
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	21 April 2005
Date of Judgment:	21 April 2005