SZKRV v Minister for Immigration & Citizenship [2008] FCA 201 (29 February 2008)

SZKRV v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 2254 OF 2007

JACOBSON J
29 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2254 OF 2007

BETWEEN:	SZKRV Appellant
AND:	MINISTER FOR IMMIGRATION & CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent
JUDGE:	JACOBSON J
DATE OF ORDER:	29 FEBRUARY 2008
WHERE MADE:	SYDNEY

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 2254 OF 2007

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

JUDGE:	JACOBSON J
DATE:	29 FEBRUARY 2008
PLACE:	SYDNEY

1 This is an appeal from orders made by Smith FM on 29 October 2007. His Honour dismissed an application for review of a decision of the Refugee Review Tribunal. The Tribunal affirmed a decision of a delegate of the Minister not to grant the appellant a protection visa. The decision of the Tribunal was dated 16 April 2007.

2 The appellant claimed to be a citizen of India and the Tribunal dealt with her claims on that basis. The appellant claimed to have a well-founded fear of persecution in India, for her political opinion or by reason of her membership of a particular social group. The appellant claimed to be a lesbian woman and she claimed that she became a member of the Trinamul Congress Party in India where she met a woman, whose name I do not need to mention.

3 She claims that she and her friend were thrown out of the Trinamul Congress Party in 2002 when they were photographed together and their photographs were made public. She claimed that she and her friend continued to live at home with their families, but that they saw each other secretly. She also claimed that she was thrown out of her parents’ home at the end of 2005 and that she came to Australia in 2006 when her friend provided her with some money to be able to do so.

4 The Tribunal accepted that sexual relations between women is illegal in India. The Tribunal also accepted that homosexuals face discrimination in employment and before the law. The Tribunal also accepted that lesbians form a particular social group in India.

5 However the Tribunal did not accept the appellant as a witness of truth for the reasons set out in the statement of decision and reasons, dated 16 April 2007. The substance of the Tribunal’s reasons may be found in the paragraph which appears at p 103 in the appeal book, as follows:

6 The Tribunal accepted that in India there is a considerable amount of social pressure to conform to social norms of heterosexual marriage. The Tribunal accepted that the appellant’s parents were "pushing her," to marry, but the it did not accept that this amounted to serious harm in accordance with s 91R(2) of the Migration Act 1958 (Cth).

7 The Tribunal was satisfied that the appellant did not suffer persecution or harm in India for her political opinion or her membership of a particular social group, or for any other Convention reason.

8 Smith FM observed at [11] that the appellant’s amended application made general claims to the effect that her application for refugee status was not considered. However, his Honour was unable to identify any defect, nor could his Honour see any error in the Tribunal’s application of s 91R(2) of the Act, or any breach of s 424A.

9 Apparently a claim of actual bias was made against the Tribunal in the application for review before the Federal Magistrate, but his Honour dismissed that ground of review.

10 His Honour could not see any error in the Tribunal’s approach to certain letters and photographs, which were presented at the hearing by the appellant to corroborate her claims. His Honour observed that questions of weight were a matter for the Tribunal and that it was open to the Tribunal to decide not to give any weight to that evidence.

11 The appellant appeared before me in person, this morning. She was assisted by a Bengali interpreter. She told me that she did not agree with the decision and that she could not understand it. This was a reference to the decision of the Tribunal. She told me that there was a mistake before the Tribunal in that she had said that her father died, but she meant to say that she was referring to her parents.

12 As I made clear to her, the proceeding by way of appeal is not concerned with the merits of the decision of the Tribunal. The notice of appeal sets out ten grounds of appeal in [2]-[11].

13 The notice of appeal is in a form which I have seen in several other appeals this week. The document is almost identical with that which I considered in the matter of SZJOP v Minister for Immigration & Citizenship (2008) FCA 166. The appellant told me that her friend helped her to prepare the notice.

14 The notice of appeal raises grounds, most of which were not argued below. They do not engage with the findings of the Tribunal and for the most part do not address the matters which were dealt with before Smith FM.

15 I have taken into account the fact that the appellant is not legally represented. However, I can see no jurisdictional error on the part of the Tribunal and I can see no error in the reasons of Smith FM.

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

The Appellant was self-represented.

Counsel for the Respondent:	J Knackstredt

Solicitor for the Respondent:	Sparke Helmore

Date of Hearing:	29 February 2008

Date of Judgment:	29 February 2008

Federal Court of Australia