SZAFV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1457

FEDERAL COURT OF AUSTRALIA

SZAFV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1457 Federal Court of Australia Act 1976 (Cth) s 25(1A) Migration Act 1958 (Cth) s 424A(3)(a), 474 SZAFV v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 1518 OF 2003 HELY J 8 DECEMBER 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1518 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZAFV

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HELY J

DATE OF ORDER: 8 DECEMBER 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal is dismissed with costs. 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 N 1518 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZAFV

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HELY J

DATE: 8 DECEMBER 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant is a citizen of India who arrived in Australia on 5 December 2000, travelling on his own passport, and with a visitor's visa. On 17 January 2001 he applied for a protection visa, which application was refused by the Minister's delegate on 31 May 2001. On 20 June 2001 the appellant applied to the Refugee Review Tribunal ('the RRT') for a review of that decision. On 6 February 2003 the RRT handed down its decision affirming the decision of the Minister's delegate not to grant a protection visa. The appellant sought a review of that decision in the Federal Magistrates Court of Australia. On 18 September 2003 the Federal Magistrate dismissed that application with costs. 2 The appellant now appeals to this Court from the decision of the Federal Magistrate. By direction of the Chief Justice given under s 25(1A) of the Federal Court of Australia Act 1976 (Cth) the appeal is to be determined by a single judge. 3 The appellant claimed that he has a well-founded fear of persecution if returned to India on the grounds of religion and political opinion. The RRT accepted that the appellant is a Muslim of Tamil ethnicity who was a member of a Muslim extremist group known as the AIJC serving from October 1993 to March 1997 and that thereafter the appellant joined the TMMK which is a moderate political organisation. 4 The RRT also accepted that the appellant was arrested and detained on a number of occasions between December 1992 and December 1997. On each occasion the appellant was released without charges being laid. However, the RRT was satisfied that these incidents of arrest and detention occurred essentially and significantly in connection with the appellant's participation in communal violence, or in relation to the commission of serious crimes or major security incidents. The RRT was satisfied that these incidents did not demonstrate persecution of the appellant for a Convention reason. 5 On 14 February 1998 a number of people were killed and an even greater number injured as a result of bomb attacks in Coimbatore. Within hours of the blast the government banned a number of groups including the AIJC and began arresting their leaders. The appellant claimed that soon after the blasts police went to his house looking for him. The appellant told the RRT that he was not home at the time and was able to escape soon afterwards, though the appellant claimed that he later found out that he had been accused of being the potential recipient of explosive materials. The RRT did not accept that the appellant was genuinely being sought by the authorities. 6 On 21 April 1998 the appellant left India legally for Dubai using his own passport. On 15 May 1999 he returned to India where he remained for 20 days before returning to Dubai. On 2 August 2000 the appellant obtained a visa for Australia but on 23 August 2000 he returned to India to get married. On 12 September 2000 the appellant was married. The marriage was a public affair which took place in a small village where the appellant remained for about 10 days before his departure for Australia on 24 November 2000. The RRT found that it was not credible that the appellant was being sought by the authorities in relation to criminal and security matters on the one hand, yet on the other he left and entered India on a number of occasions using his own passport. The independent evidence showed, and the Tribunal found, that persons of interest to the authorities in relation to criminal or national security matters would be unable to pass through an airport undetected if using a passport in their own name. Further, in the RRT's assessment the circumstances of the appellant's marriage were inconsistent with a fear on his part of persecution by the authorities and were demonstrative of a lack of interest by the authorities in the appellant. 7 The RRT did not accept the appellant's claim that after his departure for Australia he was being sought by the police. Alternatively, if he was being sought by the police, which the RRT did not accept, it was in connection with a serious criminal and security offence for which he would be accorded a fair trial in India if he were charged. 8 The Tribunal rejected the appellant's claim that he would be harassed and persecuted by the police in the future. After the Coimbatore blasts AIJC leaders were arrested but at the time of the blast the appellant was no longer a member of the AIJC, having joined the TMMK in March 1997. The RRT found that there was no evidence to indicate that past members of the AIJC rank and file had been targeted by the authorities or that members of the TMMK had been a target of systematic crackdowns by the authorities. 9 The RRT also rejected the appellant's claim that he could not continue his further studies due to the continuous arrests to which he had been subjected and harassment by the police. 10 It will be apparent from this brief review of the RRT's decision that it addressed the appellant's claims and made findings of fact in relation to them. The application for a protection visa failed because in material respects the RRT did not accept the appellant's claims for reasons which it gave, and which were open to it. 11 The appellant has filed an amended notice of appeal in which he asserts that the RRT committed a number of errors which were not considered by the Federal Magistrate. The errors or the alleged errors identified in the notice of appeal, and my findings in relation to those alleged errors, are as follows: '2. The tribunal misunderstood the applicant's claim and the decision by the Tribunal was not reflected the true picture of the claim. Honourable judge did not consider this.' The RRT's reasons for decision contain a detailed exposition of the appellant's claims and of the discussion which occurred at the hearing in relation to those claims. The Federal Magistrate found that the RRT had considered all of the appellant's claims and the integers of those claims in careful and considerable detail. The appellant has not shown that the Federal Magistrate was in error in making that finding. '3. The tribunal did not provide the applicant's an opportunity to comment on the information, which the tribunal relied on it's decision. Where the applicant was deprived of receiving natural justice, the Honourable judge also did not consider this.' If this ground is intended to refer to general country information, s 424(3)(a) of the Migration Act 1958 (Cth) ('the Act') indicates that such information is not required to be given to the appellant. More importantly, the RRT's reasons indicate that the RRT put to the appellant for his comment, matters which were apparently derived from that information. This ground of appeal is not made out. '4. Section 474 of the migration act is ineffective as per the recent to decision of the high court of Australia. Honourable trial judge did not consider this in favour of the applicant.' It was not necessary for the Federal Magistrate to consider the operation of s 474 of the Act, given her finding that the RRT did not fall into any error. The ground of appeal does not correctly record the current state of the law, but it is unnecessary to pursue this any further. '5. The applicant will face persecution if he returns to his country off as there is a significant level of violation human rights. This was not considerate by the honourable judge.' This ground appears to invite merits review, which is not within the jurisdiction of either the Federal Magistrate's Court or this Court. 12 It is the RRT's responsibility to find the facts. This Court is not entitled to intervene unless there is a demonstration of legal error. 13 On the hearing of this appeal the appellant appeared for himself without legal assistance and he could only address the Court through an interpreter. I appreciate and I endeavour to make allowance for the difficulties which a person in the appellant's position obviously suffers from. He told me that he does not have a lawyer and that he did not want to elaborate on the grounds of appeal, presumably and I say this without any offence intended, because he did not feel able to do so without the assistance of a lawyer. 14 He did put to me that after the Coimbatore blasts the police were searching for him, not just because he was a member of the TMMK but also because he was secretary of the AIJC committee. The problem with this submission is that the RRT found as a matter of fact that the police were not searching for him. Hence, the proposition that he put to me leads nowhere. For those reasons the appeal must be dismissed. 15 The Minister seeks an order for costs. The appellant opposes the making of such an order on the grounds that he does not have any money with which to meet such an order. There is no evidence before me as to the appellant's financial position but I am prepared to assume that what he says is correct. The usual practice of this Court is that an unsuccessful appellant is ordered to pay the respondents costs. Impecuniosity on the part of the appellant has never been regarded as a sufficient reason for departing from this ordinary practice. I therefore order the appeal be dismissed with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.