FEDERAL COURT OF AUSTRALIA

SZDLQ v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 696

MIGRATION – no issue of principle.

SZDLQ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1905 OF 2004

CONTI J

12 MAY 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2          The appellant to pay the costs of the respondent assessed at $3,500.00.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This is an appeal against the reasons for judgment of a Federal Magistrate delivered on 30 November 2004, whereby the Federal Magistrate dismissed the appellant’s application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 22 April 2004, which in turn had affirmed a decision of the Minister’s delegate published on 25 March 2003 not to grant the appellant a protection (Class XA) visa. 

2                     The appellant is a citizen of India and arrived in Australia on 12 March 2003.  He claims to have a well-founded fear of persecution upon his return to India on the basis that he is Muslim.  The Federal Magistrate’s decision contains a thorough summary of the claims made by the appellant about his fear of religious-based persecution and of the Tribunal’s reasons for affirming the delegate’s decision to refuse the appellant a protection visa.  Essentially, the appellant relied upon two separate incidents in which he alleges that he was assaulted by Hindu extremists.  Both were alleged to have occurred in February 2002; the first during riots which followed an arson attack on a train carrying Muslims returning from a pilgrimage and the second shortly afterwards when the appellant was returning home from work.  In reaching its decision, the Tribunal pointed to an inconsistency between the appellant’s account of how he came to lose his identity card to Hindu extremists in the statement annexed to his visa application and in an earlier statement later supplied to the Tribunal by the appellant’s migration agent.  Furthermore the Tribunal found that press clippings and a certificate of post (that claimed to have established that the appellant had lodged a complaint with a police superintendent) were fabricated.  Finally, the Tribunal rejected the claim that because the appellant had done some study at an Islamic college, he was a target of Hindu extremists, citing the short time that the appellant spent at the college and the absence of evidence to suggest that he had attained a specific profile as a Muslim missionary. 

3                     In his amended application for review of the Tribunal’s decision the appellant did not raise any grounds that the Federal Magistrate was competent to hear.  The appellant sought, in effect, a review of the merits of the Tribunal’s decision.  The appellant repeated the claims that he had made to the Tribunal during his hearing in the Federal Magistrates Court and he adduced an outline of submissions that was described in the following terms by his Honour:

’18…The author of the document shows no sign of having addressed the present Tribunal’s reasoning, and indeed the document appears to extract submissions made for a female applicant in relation to Bangladesh.

19. It presents a garbled argument that: “the present case differs substantially from Muin but the nature of denial of procedural fairness is very much similar”, apparently seeking to direct the Court’s attention to Muin v Refugee Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30.’

His Honour then expressed conclusions about the appellant’s submissions:

‘20. It is enough to say that the submission has no substance in this respect.  It does not identify, and I am unable to identify, any favourable material which was before the Delegate which the Tribunal failed to consider, nor is there any evidence that the applicant was misled in this respect.  Moreover the basis for the Tribunal’s decision was its specific assessment of the applicant’s own narrative, and it did not rely upon an assessment of country information.  Similarly, the applicant’s submission does not identify any adverse material which was not drawn to the applicant’s attention and which it is alleged that the Tribunal relied on when rejecting the applicant's claim.’

In those circumstances the Federal Magistrate dismissed the appellant’s application with costs.

4                     In his appeal to this Court, the appellant articulated the following purported grounds of appeal (read literally): 

‘2.   The single Judge of the Federal Magistrates Court in his Honors Judgment delivered on the 30 November 2004 failed to find error of law, Jurisdictional error Procedural fairness and relief under Section 39B of the Judiciary Act 1903.

3.      The grounds and relief is very much similar with the recent High Court Judgment – Muin v refugee review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 (8 August 2002).  Catchwords: Immigration – Refugee – Protection visa – Decision by Minister to refuse application for visa – Review of decision by Refugee Review Tribunal – Obligation of Secretary of Department of Immigration and Multicultural Affairs to give relevant documents to Registrar for purpose of review – Nature and extent of obligation – Migration Act 1958(Cth), ss 148(3), 424(1).

4.      The Honorable trial judge erred in considering the real state of affairs of me, I feared harm.  And also the present ruling government fail to protect civilians life, which is a worldwide concern today.  Honorable Trial judge did not take it into consideration.

5.      S474 of Migration Act is ineffective as per the recent two decisions of the High Court of Australia.  Honorable trial judge did not consider this in favour of me.

6.      I will face persecution if I return to my country of origin as there are significant level of violation of human rights, this was not considered by honourable Federal Magistrates.

7.      I also mention recent High Court judgement: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 1 (4 February 2003).

8.      Recent Federal Court of Australia judgment: SGDB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 74 (14 February 2003).

9.      I will submit full details of my grounds after received the copy of reasons for judgment.’

This purported notice of appeal is identical in form to those reproduced in numerous earlier appeals that I heard in 2004: SZAIL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 266; SZAXN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 275; SZAQW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 635; SZAKU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 892; SZALF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1065; and SZAUV & Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1745; and in 2005:  SZEZE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 122. 

5                     As I have stated on many earlier occasions in relation to what may be described as a standard form of notice of appeal for instance adopted by the appellant in this matter, it is readily apparent that paragraphs 2, 3, 7, 8 and 9 of that purported notice of appeal do not specify any viable grounds of review, but merely re-state the decision appealed from, or refer to case law in general terms, without in any way purporting to relate or apply the same to the circumstances and matters set out in the reasons for judgment of the Federal Magistrate below, or the reasons for decision of the Tribunal, or otherwise to explain the relevance of the same to any alleged circumstances of the appellants.  None of that material satisfies the requirements of Order 52 rule 13(2)(b) of the Federal Court Rules 1976 (Cth), which require an appellant to state ‘briefly, but specifically the grounds relied upon in support of the appeal’.  Moreover the general assertions the subject of grounds 4, 5 and 6 do not establish any viable basis for impugning the reasons for judgment below and amount, put at their highest, to an attempt to review the factual findings reached by the Tribunal. 

6                     The appellant also provided written submissions prior to the hearing.  Those submissions contain numerous assertions about the appellant’s situation in India and as such, go only to the merits of the Tribunal’s decision.  The submission appears to be the amalgamation of a number of other submissions, moving haphazardly between claims of actual bias and breach of natural justice; the appellant requests a one month adjournment in order to organise a copy of the transcript of the hearing before the Tribunal.  When invited to do so, the appellant did not speak about these submissions during the hearing and I conclude that these submissions are not his own.  I understand the appellant’s difficulty in not being qualified to strictly distinguish points of law from those of fact.  However in the circumstances as they have been articulated by the appellant, it is clear that there exists no basis for challenge of the Tribunal’s conclusions within the curtailed scope of jurisdiction that I am authorised to exercise. 

7                     I therefore dismiss the appeal, and I order the appellant to pay the Minister's costs assessed at $3500.

Associate:

Dated:              31 May 2005