FEDERAL COURT OF AUSTRALIA

SZIYV v Minister for Immigration and Citizenship [2007] FCA 399

Migration Act 1958 (Cth)

SZIYV v Minister for Immigration [2006] FMCA 1621 affirmed

SZIYV AND SZIYW v MINISTER FOR IMMIGRATION AND CITIZENSHIP

NSD 2222 OF 2007

HEEREY J

9 MARCH 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal is dismissed with costs.

2.                  The title of the proceedings be amended by the respondent's description being changed to Minister for Immigration and Citizenship.

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

REASONS FOR JUDGMENT

1                     This is an appeal from the Federal Magistrates Court which dismissed an application for review of a decision of the Refugee Review Tribunal.  The Tribunal had affirmed a decision of a delegate of the Minister to refuse the appellants' protection visas.  The appellants are brother and sister.  They are Indonesian citizens of Chinese origin and Christians.  They claimed a well-founded fear of persecution in Indonesia on the grounds of their race and religion.  Details of their claims and the Tribunal's consideration of their claims are set out fully in the decision of the Federal Magistrates’ Court: SZIYV v Minister for Immigration and Multicultural Affairs [2006] FMCA 1621.

2                     Their grounds of review before the magistrate were as follows:

1.                   They were denied procedural fairness in connection with the making of the decision.

2.                  That a breach of the rules of natural justice occurred in connection with the making of the decision.

3.                  They feared returning to Indonesian because they were ethnic Chinese and Christians.

4.                  They attended low-level public school which had a Muslim majority. 

5.                  They lived among the Muslim majority who hated them because they were ethnic Chinese and Christian.

6.                  The family owned store was attacked and goods stolen because they were ethnic Chinese and Christian. 

7.                  One day their church was surrounding by white-robed Muslims throwing stones. 

8.                  Their situation in Indonesia is unsettled and dangerous.

3                     On appeal to this Court, the grounds of appeal were:

1.                  That a breach of the rules of natural justice occurred in connection with the making of the decision.

2.                  They were denied procedural fairness in connection with the making of the decision.

3.                  They really feared returning to Indonesia because they were ethnic Chinese and Christians.

4                     Both before the Federal Magistrates Court and this Court only the first two grounds raise questions of what could possibly be jurisdictional error.  The remaining grounds go to the factual merits which are exclusively a matter for the Tribunal. 

5                     In my opinion, the Federal Magistrate was correct in rejecting the complaint of breach of procedural fairness or natural justice for the reasons he gave.  I adopt the reasons of the Federal Magistrate. In particular, the Tribunal complied with s 424A of Migration Act 1958 (Cth) by sending a lengthy letter dated 27 March 2006 to the appellants, pointing out many inconsistencies in their evidence.

6                     The letter asked for a response by 19 April.  The appellants wrote on the day before, that is, 18 April, seeking further time but the Tribunal refused that request.  I do not agree with the criticism of the Tribunal contained in [28] of the Federal Magistrate's reasons where the Tribunal's refusal of leave was referred to as "perhaps severe". The Tribunal was itself under a time limit obligation.  The appellants made no attempt to even partially deal with the matters in the Tribunal's letter, most of which dealt with discrepancies in their own evidence.

7                     The appellants were not represented at the appeal but had the assistance of an interpreter.  They did not wish to add anything by way of oral submissions.

8                      The appeal is dismissed with costs.  The name of the first respondent is to be amended to Minister for Immigration and Citizenship.

Associate:

Dated:         20 March 2007