SZITZ v Minister for Immigration & Multicultural Affairs [2006] FCA 1529 (15 November 2006)

Last Updated: 16 November 2006

FEDERAL COURT OF AUSTRALIA

SZITZ v Minister for Immigration & Multicultural Affairs [2006] FCA 1529

MIGRATION – appeal from the decision of a Federal Magistrate to dismiss a decision of the Refugee Review Tribunal refusing to grant a protection visa – non-attendance at hearing – whether jurisdictional error





Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 considered
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 considered
S58 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 85 ALD 492 considered
SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 considered
SZITZ v Minister for Immigration [2006] FMCA 1314 affirmed

















SZITZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 1680 OF 2006

MIDDLETON J
15 NOVEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1680 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZITZ Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	MIDDLETON J
DATE OF ORDER:	15 NOVEMBER 2006
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 1680 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZITZ Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	MIDDLETON J
DATE:	15 NOVEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal against a judgment of a Federal Magistrate of 24 August 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 29 March 2006 and handed down on 18 April 2006. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant a protection visa to the appellant.

PROCEDURAL BACKGROUND AND APPELLANT’S CLAIMS

2 The appellant is a citizen of India. Before the Tribunal the appellant claimed to have a well-founded fear of persecution because of his political opinion and claimed to be of Sikh ethnicity and region. The appellant’s claims involved being a leader of the Akali Dal Party (Badal Group) and having false charges laid against him by the Congress Party. The appellant claimed that he was arrested by the police and detained for one month, that his house was attacked in 2002, and that his brother was injured and subsequently died.

3 On 28 March 2006 the Tribunal received a response to a hearing invitation indicating the appellant did not want to attend the scheduled Tribunal hearing. The appellant did not attend the hearing and the Tribunal proceeded to make a decision on the evidence available to it. The Tribunal accepted the appellant was a citizen of India and was of Sikh ethnicity and religion. However, the Tribunal found the appellant’s claims to be vague and lacking in details. As there were no further details and clarification as to his evidence, the Tribunal was not satisfied of the appellant’s claims regarding perceived harm. The Tribunal was not satisfied the appellant had a well-founded fear of persecution for a Convention reason and dismissed the application. The appellant appealed against this decision to the Federal Magistrates Court.

FEDERAL MAGISTRATE’S DECISION

4 Before the Federal Magistrate the appellant relied on an amended application which raised various issues, including: that the Tribunal did not appreciate the evidence; that the Tribunal did not consider the decision in accordance with the law; that the appellant’s case satisfied the elements of refugee law and fell within the interpretation of particular social group; that the Tribunal did not give importance to the appellant’s claims; that the Tribunal did not make findings in relation to harm by drug lords in Pakistan; and that there was jurisdictional error.

5 Before the Federal Magistrate, the appellant stated that he needed more time to prepare his case. His Honour considered this to be an application for an adjournment but found there were no grounds to support such a request as the appellant had three months to prepare and had been offered legal advice by an experienced barrister. In relation to the substantive grounds, his Honour found the grounds raised referred to factual matters and thus sought merits review. The Federal Magistrate found no reviewable error as the decision was based on a lack of information and thus the Tribunal was not satisfied the information was sufficient to enable it to grant a protection visa. His Honour was unable to see any evidence of jurisdictional error and dismissed the application.

GROUNDS OF APPEAL

6 The notice of appeal and affidavit filed on 1 September 2006 raised the following grounds: that the Federal Magistrate did not find the Tribunal committed legal error; that the Federal Magistrate denied the rules of natural justice; and that the appellant’s statement of claim was not given any weight.

7 At the hearing of the appeal before me the appellant provided a written submission dated 3 November 2006. Most of the material in his submission relates to facts that were or could have been placed before the Tribunal. Otherwise the submission contains the following complaints against the Tribunal: that it did not give any importance to the claims or evidence of the appellant; that it did not take into account the factual matters raised by the appellant; and that it did not make findings in relation to the appellant’s claims, specifically whether the events might occur again and whether the appellant had a well-founded fear of persecution on this basis.

CONSIDERATION

8 The real difficulty facing the appellant is that the appellant declined a hearing before the Tribunal. It may have been that he was ill-advised in so acting, but the appellant must accept the consequences of that choice: see S58 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 85 ALD 492 at [25]. As was pointed out in SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 at [16]:

The RRT made it pellucidly clear in its letter of 12 March 2004 that it was unable to make a decision in the appellant’s favour on the basis of the information before it, and as the Full Court observed in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287, when the appellant failed to accept the opportunity to elaborate on that information at the scheduled hearing, the inevitable consequence was the rejection of his application.

9 Without further hearing from the appellant, the Tribunal was not satisfied on the very limited material before it that the appellant’s claimed political involvement with the Akali Dal Baadal in India or the false charges and attacks on his family that the appellant claimed to have suffered as a result of his political activities were true. These were factual conclusions that were open to the Tribunal. According to the decision in Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 the Court cannot review the merits of the Tribunal’s decision. Further, there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: see Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at 560, [137].

10 There was some confusion, apparently, with a reference made by the appellant in his amended application before the Federal Magistrate to ‘drug lords’ in Pakistan. These factual claims were not made by the appellant to the Tribunal. His Honour dealt with this matter as follows:

22. The applicant told the Court that he does not speak, read or write English, and that a friend had prepared the amended application for him. It appears that the person who prepared the material for the applicant may have been confused. One of the grounds for the application says, quote:

The Refugee Review Tribunal did not appreciate the facts and the circumstances of the case. It is a known fact that even the states are unable to stop the drug dealers. The applicant, with no backing, fought the war against the drugs in his country.

23. The amended application goes on at paragraph 2 to refer to, quote:

The applicant lost all his business, family, and was open to a great fear of his life being taken away by the drug lords in Pakistan.

24. The ground goes on to say, quote:

The applicant cannot be given the protection in Pakistan. If the applicant is sent back to Pakistan, in that case the applicant shall be done to death by the hands of the drug lords in Pakistan.

25. The amended application complains that the Tribunal did not make findings in relation to those claims.
26. As the applicant has always claimed to be a citizen of India who was seeking a protection visa on the basis of his political opinion and membership of the Akali Dahl party, it is quite clear that the reference to Pakistan and a struggle against the drug lords of that country has no relevance to the applicant’s case at all. I asked the applicant about that, and he indicated that he had nothing to do with Pakistan.

11 Whilst this conclusion seems correct and would have disposed of the confusion, the appellant nevertheless before me submitted in his written submissions:

That the appellant wanted his friend that he should write that in the Khalistan movement or the related any movement there were Hindu Drug Lords who used to sell the arms and, other material to the people who wanted the independent state of Punjab, the selling of the arms was misinterpreted by my friend. What use to happen that the Hindu Drug Lords use to sell the drugs to many Sikhs drug dealers to sell them, and purchase the arms, this was one way or the other was a typing mistake, and the word of Pakistan came in, the drug was to be selled [sic] in Pakistani Punjab. This was not the mistake of the applicant rather it was misunderstood by the friend of the applicant.

12 I do not consider that this submission has any impact upon the decision of the Tribunal (which did not have to consider the claims concerning ‘drug lords’ in Pakistan as they were not made before it by the appellant) nor the Federal Magistrate (not being a matter relevant to the task he had to undertake in considering the decision of the Tribunal).

13 Finally, the Federal Magistrate took the view that he would not permit the appellant more time to prepare his case, and effectively refused an adjournment. In the circumstances of this case, I do not think the Federal Magistrate failed to exercise his discretion properly in this regard, or to deny the appellant natural justice. The appellant had ample opportunity to prepare and present his case.

14 Further, the appellant before me sought an adjournment in order to place some additional unspecified documents before me. However, in the absence of any information as to the nature of those documents or the reason for requiring that material, I will not grant the appellant any further time.

CONCLUSION

15 In my opinion, the appeal should be dismissed with costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.

Associate:

Dated: 15 November 2006

Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondent:	T Reilly
Solicitor for the Respondent:	Phillips Fox
Date of Hearing:	15 November 2006
Date of Judgment:	15 November 2006