FEDERAL COURT OF AUSTRALIA

SZEMZ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 441

SZEMZ & Anor v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1710, upheld

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

NSD 2398 OF 2005

GYLES J

19 APRIL 2006

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.

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 a decision of Emmett FM which dismissed an application seeking to challenge a decision of the Refugee Review Tribunal (the Tribunal).  The Tribunal had confirmed the rejection by a delegate of the first respondent (the Minister) of applications for protection visas from two married applicants.

2                     The notice of appeal to this Court does not identify any error in the judgment of the learned Federal Magistrate.  I pointed this out to the appellant and noted that the written submissions on behalf of the Minister also raised this issue.  The appellant did not seek to supplement the notice of appeal in any way, and the remarks he made did not isolate any ground of appeal.  The reasons of the learned Federal Magistrate are in logical sequence and deal with all the matters that appear to have been raised in the application to that Court. 

3                     Remarks were made by the appellant to the effect that he was at a disadvantage in putting his case orally to the Tribunal.  I therefore thought it was appropriate to hear some detailed submissions from counsel for the Minister in relation to the transcript of the Tribunal hearing.   I adjourned the matter after argument in order that I could read that transcript in the light of those submissions and in the light of what was said by the appellant.

4                     I was concerned because the appellant was not assisted by an interpreter at the Tribunal hearing and there did seem to me to be the potential at least for misunderstanding, and thereby unfairness.  Having read the transcript, the manner in which the learned Federal Magistrate analysed the decision of the Tribunal removes any difficulty or doubt that I may have felt. 

5                     Without endeavouring to paraphrase what was found by the Tribunal or all the matters referred to by the Federal Magistrate, it seems to me that the essence of the reasoning of the Tribunal was that the appellant before this Court, who was the male applicant below made an application for a protection visa on the basis that he feared violence if he returned to Malaysia at the hands of some moneylenders, or ‘loan sharks’, as they were called in the original application.  The appellant is a Malayasian national of Indian descent and of the Hindu faith but the original claims made did not, in terms, refer to race or religion as the basis of his fear of persecution.  This claim was raised when the matter came before the Tribunal.  The Tribunal found, and it also seems to me that during the hearing the male appellant indicated, that he was in substance prepared to return to Malaysia, but that he would need some months to set things right so far as the loan was concerned.  The Tribunal, having assessed what was put to it by the appellant, found that his real concern was the fear of harm from the moneylenders and that his fear was not truly based upon a Convention reason.  It is correct that, during the course of discussion with the Tribunal, references to race and religion were made and the appellant certainly said that the police were ineffective in dealing with his problem with the loan sharks.  It is also true that reference was made to a serious incident in Penang, the existence of which was confirmed by independent country information, but the Tribunal was not prepared to draw any link between that incident and the way the appellant was treated by either the loan sharks or the authorities.

6                     Furthermore, the Tribunal was satisfied that generally speaking, a Malaysian of Indian extraction and of the Hindu faith would not be at risk of persecution for a Convention related reason.  Thus, as the Tribunal had found that there was no particular matter giving rise to concern for this particular appellant, and also reached the general conclusion about the situation of a person such as him noted above, the Tribunal confirmed the delegate’s denial of a protection visa.

7                     No doubt the appellant is unhappy about the Tribunal’s findings of fact and apparently has the view that, if he had been properly advised and represented, the result may have been different.  He was not, and that is not a ground of appeal.

8                     It was not the task of the Federal Magistrates Court to second-guess the Tribunal's findings of fact.  Its task was to ascertain whether or not there was any jurisdictional error in the way the Tribunal dealt with the matter.  In my opinion, the learned Federal Magistrate considered that question in a manner which cannot be criticised.  In particular, the learned Federal Magistrate did not fall into any error of law or any other appealable error in the manner in which she dealt with the case.  As this Court has even less basis for becoming involved in a review of the facts than the Federal Magistrates Court did, it is therefore unnecessary for me to make any further comment about the underlying factual situation.

9                     Under the circumstances, I am bound to, and do, dismiss the appeal, and order that the appellant pay the costs of the first respondent.

Associate:

Dated:              24 April 2006