SZDLO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 84 (11 February 2005)

Last Updated: 7 March 2005

FEDERAL COURT OF AUSTRALIA

SZDLO v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 84

MIGRATION – no point of principle


































SZDLO v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
NSD 1529 of 2004

MOORE J
11 FEBRUARY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NSW SOUTH WALES DISTRICT REGISTRY		NSD 1529 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDLO APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	11 FEBRUARY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed

2. The appellant pay the respondent's costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NSW SOUTH WALES DISTRICT REGISTRY		NSD 1529 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	MOORE J
DATE:	11 FEBRUARY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(Ex Tempore – Revised)

Introduction

1 This is an appeal against the judgment of a Federal Magistrate dismissing an application for review of a decision of the Refugee Review Tribunal ("the Tribunal"). On 18 March 2004 the Tribunal affirmed a decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") refusing the appellant a protection visa.

2 The appellant arrived in Australia on 12 February 2003. He applied for a protection (class XA) visa on 1 May 2003. His application was refused. On 22 July 2003 the appellant sought review of that decision by the Tribunal. On 3 March 2004 the Tribunal wrote to the appellant inviting him to a hearing as they could not make a favourable decision on his application and written material alone. On 16 March 2004, the appellant, through his adviser, informed the Tribunal that he would not attend the hearing and requested the decision be made on the written material before the Tribunal.

Claims and Evidence

3 The appellant claimed he was a national of India and was a refugee on the ground of political opinion. On 27 February 2002, his friends were on a train that was attacked by Muslim militants. Sixty Hindus died, including the appellant's friends. In retaliation, Hindus attacked Muslims, killing them and looting their properties. The police were unable to control the rioters or maintain law and order and turned a blind eye or supported the rioters. At the time of the attacks, the appellant was joint secretary of the opposition party Congress I. The appellant and other Congress I members strongly condemned the ruling Bharatiya Janata Party (BJP). Congress I called for the dismissal of various police commissioners and for the resignation of the Chief Minister in Gujarat. After the media attention he received, the appellant was harassed by the police, arrested many times and badly beaten. He was also abused by VHP party leaders. After this, he went underground for a few months.

4 The police and members of the VHP party (which supported the BJP) would be the main threats were he to return to India. He feared the VHP party, particularly since he had given evidence which led to the jailing of certain members. He would not be safe as the entire police department is looking for him. Threats were made to him and his family, some by the police. He was "booked by the police in several fraud cases". He cannot return to anywhere in India as the police will find him. He came to Australia to seek protection.

The Tribunal's decision

5 The Tribunal was unable to be satisfied the appellant held an official position in Congress I or that he took action on behalf of Congress I in relation to the events as claimed. Without further information from the appellant, the Tribunal was also unable to be satisfied the appellant was arrested, beaten and harassed, that he was a person regarded adversely by the police, the state government or other political parties connected to the BJP, or that the appellant went underground. The Tribunal found the appellant had not been persecuted in the past for reason of his political opinion and that were the appellant to return to India, there would be no real chance he would be persecuted and that his fears were not well founded.

The Federal Magistrate's decision

6 The eight grounds in support of the appellant's application before the Federal Magistrate are set out below:

1.	The tribunal made his decision in bad faith.
2.	The tribunal deprived me of the natural justice.
3.	The tribunal denied the evidentiary proof of my claim.
4.	The tribunal's decision did not reflect the material facts of my claim.
5.	The tribunal has given a decision, which was preset in the back of it's mind.
6.	The tribunal mixed up many facts with this decision which affected the decision.
7.	The tribunal concentrated in particular fact, while ignored many other facts in this condition.
8.	The tribunal make up his mind without any inquiry regarding my claim and he did not believe my genuine convention based refugee claim.

7 A ninth point said more details would be provided later. Despite orders being made to provide full particulars and submissions, no amended application giving full particulars was filed, nor were any written submissions. The appellant's reason for non-compliance with the orders was that he was waiting to receive the court book before proceeding, which he had not received.

8 Before the Federal Magistrate, the appellant sought an adjournment on the basis that he needed more time to prepare his case as he had not received the court book. There was evidence led by the respondent that the court book was sent, in compliance with the orders, to the appellant's address for service. Some correspondence sent there had been received. His Honour refused the adjournment and pointed to a number of facts including that the appellant was responsible for recording the wrong flat number, the appellant had made no attempt to contact the respondent's solicitors when he failed to receive the court book by the date provided for in the orders, the appellant had been unable to explain why he had not adequately pursued the opportunity to access legal advice that he had been given, and there was nothing before his Honour to show that the appellant would act differently if his Honour granted the adjournment.

9 The Federal Magistrate described the grounds of review before him as "devoid of any particularity", "formulaic" and "strikingly similar in their content and style to a number of other applications often seen in this Court". His Honour found the grounds were without merit for the following reasons. The appellant had been invited by the Tribunal to a hearing and knew the possible consequences of non-attendance but did not attend. Through his agent, he had requested that the decision be made on the basis of the documents he had submitted with his application. In these circumstances, the Federal Magistrate found the claims in relation to denial of natural justice were without merit.

10 The Tribunal had been unable to be satisfied of the various facts asserted in support of his claims. The Federal Magistrate found nothing before him or in the material before him to show that the Tribunal failed to make a bona fide attempt to exercise its power and noted the seriousness of such an allegation.

The appeal and its disposition

11 The grounds of appeal before this Court are:

The single judge of the Federal Magistrates Court in his Honors Judgement delivered on the 7/10/2004 failed to find error of law, jurisdictional error or procedural fairness and relief under section 39B of the Judiciary Act 1903.

No submissions or particulars have been provided by the appellant before the hearing. The respondent submitted that there is no basis for interfering with either the Federal Magistrate's decision or the Tribunal's decision and that the Tribunal's decision reveals it was the appellant's unwillingness to attend the hearing and explain his claims that led to its rejection of certain of his claims.

12 I dismiss the appeal. The appellant has failed to demonstrate that the Federal Magistrate made an error in dismissing the application. I have read the Federal Magistrate's decision and I have also read the decision of the Tribunal, and it does not appear to me that the Federal Magistrate made any error in concluding the Tribunal had not made a jurisdictional error.

13 The basic difficulty the appellant confronted before the Tribunal is that he did not appear. The Tribunal offered him the opportunity of appearing at a hearing but was advised by his Migration Agent that he did not wish to appear. That took place in circumstances where the Tribunal had told the appellant that on the documentary material he had presented, it was not satisfied he was entitled to a protection visa.

14 The Tribunal indicated a range of issues it would have discussed with the appellant. Because the appellant did not take up the opportunity of having that discussion at the hearing, it remained the position that the Tribunal was not satisfied on the documentary material he was entitled to a protection visa.

15 To the extent to which the appellant raises points in the submissions that were not raised before the Federal Magistrate, I propose to disregard those submissions. This is an appeal from a Federal Magistrate and it is not open to an appellant, at least, in the ordinary course, to conduct a case that might have depended on evidence being led before the Federal Magistrate, which was not led.

16 I order that the appeal be dismissed and the appellant pay the respondent's costs.

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

Associate:

Dated: 7 March 2005

The appellant appeared in person.
Counsel for the Respondent:	R Beech-Jones
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	11 February 2005
Date of Judgment:	11 February 2005