FEDERAL COURT OF AUSTRALIA

SZDWX v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1632

MIGRATION – appeal from a decision of the Federal Magistrates Court of Australia dismissed

Judiciary Act 1903 (Cth), s 39B

SZDWX v Minister for Immigration [2005] FMCA 1015 affirmed

SZDWX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 1436 OF 2005

GYLES J

10 NOVEMBER 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.      The appeal be dismissed.

2.      The appellant pay the costs of the first respondent in the amount fixed at $2,400.00.

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 from the judgment of Federal Magistrate Lloyd-Jones delivered on 29 July 2005 (SZDWX v Minister for Immigration [2005] FMCA 1015) dismissing an application under s 39B of the Judiciary Act 1903 (Cth) for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 30 April 2004.  

2                     The Tribunal affirmed a delegate of the respondent Minister's decision to refuse to grant the appellant a protection visa.  It is accepted that the appellant is a native of India.  His claim has been that he will be persecuted if he returns to India due to his political and/or religious beliefs and activities.

3                     The proceeding in this Court is an appeal from the decision of the Federal Magistrates Court, not an application to review the Tribunal's decision.  It is, thus, necessary that an appellant identify and establish appealable error in the decision of the Federal Magistrate.

4                     The notice of appeal, which I need not set out, is correctly described by counsel for the first respondent as formulaic and is familiar from other cases.  It does not isolate any identifiable error in the judgment appealed from. 

5                     The appellant did file written submissions.  The first two paragraphs are quite general in nature and are not directed to any identifiable error.  Paragraphs 3 to 7 inclusive raise the issue of relocation, which formed no part of the decision of the learned Federal Magistrate nor, I might add, of the Refugee Review Tribunal so far as I can tell.

6                     The next issue in par 8 of the written submissions was that the learned Federal Magistrate failed to see that the Tribunal failed in relying on some country information provided by foreign sources.  The learned Federal Magistrate considered the use by the Tribunal of what is called ‘country information’ and in a reasoned decision concluded that the use of the information was appropriate.  No error was identified in the submissions for the appellant in that reasoning.  The appellant cannot succeed on that ground, assuming that it were open to him.

7                     In par 9 of the appellant’s submissions it was then submitted that the appellant was nervous at the time of the hearing and therefore some inconsistencies would have arisen. The complaint is that both the Tribunal and the learned Federal Magistrate failed to see such things as minor, which do not go to the root of the matter. That ground is not encompassed by the grounds of appeal, but, even if it were available, it is bound to fail.  It refers to the merits of the manner in which the Tribunal went about its task of assessing the reliability of the material presented by the appellant.  No error has been demonstrated in the way that either the Tribunal or the learned Federal Magistrate dealt with the matter.

8                     Counsel for the respondent Minister has properly sought to tease out any possible argument from the grounds of appeal.  She was drawn into a discussion of the impact of the decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162, particularly when combined with the decision of the Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27.

9                     Whilst the point has not been developed on behalf of the appellant, I accept the submission for the Minister that that line of territory is not applicable in the present case. Even if material presented, for example, in the original visa application can be said to have been relied upon in the relevant way, the close questioning of the appellant by the Tribunal as recorded in the reasons of the Tribunal indicates that the inconsistencies which it relied upon in the ultimate decision-making were clearly put to the appellant. Thus there can be no argument that the Tribunal did not comply with its statutory requirements.

10                  I also agree with the submission for the Minister that the decision of Madgwick J in SZFKL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 931 does not assist the appellant.  Indeed, it may, and probably does, assist the Minister.

11                  Therefore, I can only conclude that, so far as the role of this Court is concerned, which is to correct error in the Federal Magistrates Court, the appellant does not succeed.

12                  The appeal is dismissed and the appellant is ordered to pay the costs of the first respondent of the appeal.  Bearing in mind what I have been told, I will fix the costs in the sum of $2,400.00. 

Associate:

Dated:              11 November 2005