SZOZN v Minister for Immigration and Citizenship [2011] FCA 959 (17 August 2011)

Last Updated: 29 August 2011

FEDERAL COURT OF AUSTRALIA

SZOZN v Minister for Immigration and Citizenship [2011] FCA 959

Citation:		SZOZN v Minister for Immigration and Citizenship [2011] FCA 959
Appeal from:		SZOZN v Minister for Immigration & Anor [2011] FMCA 405
Parties:		SZOZN v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
File number:		NSD 936 of 2011
Judge:		ROBERTSON J
Date of judgment:		17 August 2011
Catchwords:		No catchwords
Cases cited:		SZOZN v Minister for Immigration and Anor [2011] FMCA 405 affirmed
Date of hearing:	17 August 2011
Place:	Sydney
Division:	GENERAL DIVISION
Number of paragraphs:	23
Counsel for the Appellant:	The appellant appeared in person with the assistance of an interpreter
Solicitor for the First Respondent:	Mr A Wood of Clayton Utz
Solicitor for the Second Respondent:	The Second Respondent submitted save as to costs

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 936 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZOZN Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	ROBERTSON J
DATE OF ORDER:	17 AUGUST 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the first respondent’s costs fixed in the amount of $2,130.00.
   

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 936 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZOZN Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	ROBERTSON J
DATE:	17 AUGUST 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1. By a notice of appeal filed on 16 June 2011, the appellant appeals from the judgment of the Federal Magistrates Court of Australia given on 30 May 2011 at Sydney. The Federal Magistrates Court dismissed the application to it: SZOZN v Minister for Immigration and Anor [2011] FMCA 405.
2. The application to the Federal Magistrates Court was from a decision of the Refugee Review Tribunal (“the Tribunal”) given on 12 January 2011 affirming the decision not to grant the appellant a Protection (Class XA) visa.
3. The appellant, who claimed to be a citizen of India, arrived in Australia on 19 May 2008 and applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa on 11 June 2010. The delegate of the Minister decided to refuse to grant the visa on 25 October 2010. The delegate refused the visa application on the basis that the appellant was not a person to whom Australia had protection obligations under the Refugees Convention.
4. The appellant applied to the Tribunal on 22 November 2010 for review of the delegate’s decision.
5. As recorded by the Tribunal, the Department invited the appellant to attend an interview to discuss his visa application and his claims for protection. However, the appellant did not attend the interview.
6. Further, on 9 December 2010, the Tribunal wrote to the appellant as follows:

The Tribunal has considered the material before it but it is unable to make a favourable decision on this information alone.

You are invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in your case. The Tribunal has arranged a hearing for ...12 January 2011...at 11.30 am... .

7. The appellant did not attend the hearing on 12 January 2011 or contact the Tribunal to explain his failure to attend. In those circumstances, the Tribunal decided to make its decision on the review without taking any further action to enable the appellant to appear before it.
8. The Tribunal had before it the Department’s file relating to the appellant. It also had regard to the material referred to in the delegate’s decision and other material available to it from a range of sources. The Tribunal also set out at some length the appellant’s protection visa claims.
9. The Tribunal did not say that it did not take those claims into account. Instead it said:

[26] Without the opportunity to explore his claims at a hearing, the Tribunal is unable to be satisfied on the evidence before it that the applicant will suffer serious harm if he returns to India, and, as such, is not satisfied that he has a well-founded fear of being persecuted for reasons of political opinion or for any other Convention reason, now or in the reasonably foreseeable future.

10. The Tribunal concluded that it was not satisfied that the appellant was a person to whom Australia had protection obligations under the Refugees Convention and affirmed the decision not to grant the appellant a Protection (Class XA) visa.
11. The Federal Magistrate noted that the appellant attended court on 30 May 2011 and made oral submissions with the aid of an interpreter in the Hindi language.
12. The Federal Magistrate considered the grounds upon which the appellant relied, many of which went entirely to the factual merits of the appellant’s refugee claim.
13. In his Honour’s conclusions, the Federal Magistrate held that the Tribunal did not reject the appellant’s application because he did not attend the hearing: it rejected his application because, by not attending and giving evidence, the appellant did not give the Tribunal any further information to support his claim.
14. The Federal Magistrate held that there was no jurisdictional error on the part of the Tribunal.

Grounds of Appeal

15. Before this Court the grounds of appeal were, in summary:
    1. The appellant’s case was not considered by the Federal Magistrates Court as that court only considered the respondents’ view which was that since the appellant had failed to attend the interview the appellant was not a refugee. There was a violation of the recognised principles of natural justice where the respondents failed to consider the appellant’s case on the basis that the appellant did not attend the interview whereas the interview was not portrayed to be mandatory. This also showed bias. The question of real danger to the life of the appellant being a Sikh by ethnicity was not considered.
    2. The RRT was bound to go into the question of merit and the law. The question was what was the required standard of their satisfaction.
    3. There was much evidence on the record of many young activist students from Sikh organisations being kidnapped and killed. It was therefore fair to assume that the appellant has a well-founded fear of his life being taken away by the authorities in his country of origin. All these matters were not taken into account.
    4. The facts should have been considered by the respondents and by not considering these facts there was a jurisdictional error or legal error.
       

Consideration

16. In my view the only parts of these grounds of appeal that identify possible jurisdictional errors are not sustainable in light of the express terms of the Tribunal’s decision.
17. The Tribunal did not ignore or fail to consider the appellant’s case either on the basis that he did not attend the interview or at all. Instead, as I have indicated, the Tribunal took into account the claims but said that it was unable to be satisfied on the evidence before it that the appellant would suffer serious harm if he returned to India. As such, the Tribunal was not satisfied that the appellant had a well-founded fear of being persecuted for reasons of political opinion or for any other Convention reason, now or in the reasonably foreseeable future.
18. Whether this issue is put as a denial of procedural fairness or as a failure to consider the appellant’s case in my view it cannot be sustained.
19. The other matters raised in the notice of appeal go only to the merits of the Tribunal’s decision. This court has no jurisdiction to deal with the merits.
20. In oral submissions before me the appellant said that it was very difficult to get evidence from overseas. But this point, as with the other matters raised in the notice of appeal, does not go to error of law on the part of the Tribunal.
21. For these reasons I find no error in the decision of the Federal Magistrates Court.
22. Finally I note that there was sought to be tendered in evidence an affidavit sworn by the appellant on 8 June 2011 and stamped as filed in the Registry on 16 June 2011. The terms of that affidavit show that it was inadmissible before me. I therefore rejected it. Its content was a repetition of the answers to questions 40-44 in the application for a protection (Class XA) visa made on or about 11 June 2010. Its admission into evidence would be to encourage this Court to re-examine, for itself, the merits of the appellant’s application. As I have said, this is not the role or jurisdiction of the Court.
23. My order therefore is that the appeal is dismissed with costs. The first respondent sought an order under rule 40.02 (b) of the Federal Court Rules 2011 that costs be awarded as a lump sum instead of taxed costs. On the basis of the affidavit evidence of Adam Wood affirmed on 16 August 2011, I so order and I fix the costs in the amount of $2,130.00.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.

Associate:

Dated: 26 August 2011