SZJSU v Minister for Immigration and Citizenship [2007] FCA 1849 (12 November 2007)

SZJSU v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1580 OF 2007

MADGWICK J
12 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1580 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MADGWICK J
DATE OF ORDER:	12 NOVEMBER 2007
WHERE MADE:	SYDNEY

2. The appellant is to pay the first respondent’s costs assessed in the sum of $2,200.

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 1580 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MADGWICK J
DATE:	12 NOVEMBER 2007
PLACE:	SYDNEY

1 The appeal will be dismissed for the reasons comprehensively outlined by Ms Clegg in her submissions, a copy of which will be annexed to the written version of these remarks.

2 The appellant is to pay the first respondent’s costs assessed in the sum of $2,200.

I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

The Appellant was self represented.

Counsel for the Respondent:	Ms Louise Clegg

Solicitor for the Respondent:	Blake Dawson Waldron

Date of Hearing:	12 November 2007

Date of Judgment:	12 November 2007

IN THE FULL FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY No. 1580 of 2007

1. This is an appeal from a judgment of Federal Magistrate Cameron dismissing an application for constitutional writs under the Migration Act 1958 (Act) in respect of a decision of the second respondent (Tribunal). The Tribunal affirmed a decision of a delegate of the first respondent refusing to grant the appellant a protection visa (class XA).

2. The appellant, a citizen of India, arrived in Australia on 28 May 2006On 10 July 2006 the then Department of Immigration and Multicultural and Indigenous Affairs (Department) received an application for a protection visa from the appellant.

3. On 12 July 2006 a delegate of the Minister refused the application for a protection visa.

4. On 25 August 2006 the Tribunal received an application for review of the delegate’s decision. On 5 September 2006 the Tribunal wrote to the appellant and informed him that it was unable to arrive at a decision in his favour on the material before it, and invited him to attend a hearing to present oral evidence and arguments. The appellant attended a hearing on 3 October 2006 and gave oral evidence.

5. On 9 October 2006 the Tribunal made a decision, affirming the decision of the delegate.

6. The appellant filed the application for judicial review in the Court below on 22 November 2006. An amended application was filed on 18 April 2007.

7. On 26 July 2007 Cameron FM dismissed the application: SZJSU v Minister for Immigration & Anor [2007] FMCA 1393.

8. The appellant made written claims in his protection visa application. These claims were summarised by the Tribunal in its statement of reasons.

9. It is also evident that the appellant elaborated upon and refined his claims at the Tribunal hearing such that the claims made at the hearing were different in some respects to the claims made in the protection visa application.

10. In short, the appellant claimed to fear persecution in India because of his membership of the Communist Party of India (Marxist) (CPIM). His claims in his protection visa application that he also feared persecution on the basis that he had been a member of the Students Federation of India and the Vishwa Hindu Parishad were abandoned at the hearing.

11. The appellant claimed to have begun participating in CPIM activities in 1992. However he was not a member. He claimed to go with leaders to functions but he was never active in his own way. When the leaders called for rallies he would participate, but he did not hold a particular position in the party. Nor would he be given such a position. He decorated stages and halls like many others. He was involved in many conflicts between Muslims and CPIM members.

12. On one occasion he left his home state of Kerala to go to Madras to hide from the Muslims who were against him and other members of the CPIM. He returned home after about a year.

13. He claimed that the police only protected those from the ruling party, which was the Muslim League when he lived in India. When the appellant volunteered to the Tribunal that the CPIM had recently come to power in Kerala he claimed that he could not go back to India now because one of his friends and a CPIM colleague had been murdered, so the Muslims would kill him too.

14. The appellant also claimed that although the CPIM was in power that he would not be protected if he returned to India because he was from an area where the majority were Muslims. He also claimed he could not relocate because he speaks the Malayalam language and could be recognised as being from Kerala.

15. The appellant claimed that he had travelled from India to Malaysia and Singapore because he wanted to ‘change his place’. He also presented two newspaper articles to the Tribunal (which were translated by the interpreter) which he said supported his claims.

a) referred in its decision to independent country information concerning the history and activities of the CPIM and the political situation in Kerala;

b) noted that the written and oral claims of the appellant varied considerably but accepted that the appellant had had some assistance with the protection visa application and was unaware of its contents. The Tribunal concluded that it preferred the oral evidence of the appellant as more accurately reflecting his claims;

c) (giving full reasons) did not accept that the appellant was actively involved in the activities of the CPIM;

d) (again giving full reasons) did not accept the appellant’s claim that he had witnessed the murder of his friend;

e) noted that the appellant was not truthful in his evidence and the claim to have witnessed the friend’s murder ‘was given prominence’ as a result of the appellant being required to address the issue of the CPIM being in power in Kerala since the 2006 elections;

f) noted that the newspaper articles provided by the appellant were unhelpful and gave them little weight; and

g) concluded the appellant was not a person to whom Australia owed protection obligations.

17. The decision of Cameron FM, which is the subject of this appeal, considered each of the appellant’s claims and addressed them: SZJSU v Minister for Immigration & Anor [2007] FMCA 1393 at [9] – [25]. His Honour also addressed additional issues raised by the appellant in the written submissions: at [25] – [37].

18. His Honour was correct to dismiss the application. The appellant did not identify any jurisdictional error in the Tribunal’s decision. Nor could such an error be discerned.

19. The grounds of appeal are not particularised, and in some cases not directed to the facts of the case.

20. Ground 2 does no more than allege that the Federal Magistrate fell into error.

21. Ground 3 alleges that the Federal Magistrate did not consider all aspects of the Tribunal’s decision. This is patently not the case. The Federal Magistrate went to considerable effort to explore every point raised by the appellant, whether in his pleadings or written submissions. As the appellant was not legally represented the Federal Magistrate had an obligation to explore any possible basis upon which the appellant’s case might have been made out. This was done, and the Federal Magistrate’s consideration of the application for judicial review was comprehensive and thorough.

22. Ground 4 makes a complaint about the application of the principle in Randhawa v Minister for Immigration Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437. The Federal Magistrate correctly observed at [30] that the issue of relocation did not feature in the Tribunal’s decision. There can be no misapplication of a principle that was not applied at all.

23. Ground 5 merely asserts that the Tribunal’s decision was unjust. It does not identify error of a jurisdictional kind. The Federal Magistrate addressed a similar complaint below at [19] and correctly recognised that the appellant was merely re-agitating the facts of his case.

24. Ground 6 appears to assert that the Tribunal placed too much emphasis on oral evidence given by the appellant. The weight which is applied to evidence is a matter for the Tribunal. Again, this is a clear attempt to revisit the merits of the appellant’s case.

25. The complaint at ground 7 based upon Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601 was also made below and addressed by the Federal Magistrate at [35]. His Honour was correct to observe that Muin’s case has no application here.

26. Finally, in answer to ground 8, the Minister repeats the submissions made in response to ground 3.

27. There is no legal error in the decision of the Tribunal. Nor is there any error in the decision of the Federal Magistrate.

Federal Court of Australia

SZJSU v Minister for Immigration and Citizenship [2007] FCA 1849 (12 November 2007)