SZAUA v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 286

FEDERAL COURT OF AUSTRALIA

SZAUA v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 286 SZAUA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD1433 OF 2004 BENNETT J 14 MARCH 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD1433 OF 2004

BETWEEN: SZAUA

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BENNETT J

DATE OF ORDER: 14 MARCH 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 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 NSD1433 OF 2004

BETWEEN: SZAUA

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BENNETT J

DATE: 14 MARCH 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a decision of Federal Magistrate Lloyd-Jones made on 17 September 2004 dismissing an application for review of a decision of the Refugee Review Tribunal ('the Tribunal') handed down on 22 May 2003. The Tribunal's decision affirmed a decision of a delegate of the Minister refusing to grant the appellant a protection class (XA) visa. 2 The appellant is a citizen of India and a Muslim. The appellant claims in support of his visa application that he fears persecution, by reason of his religion, by government authorities because of his imputed association with the banned Student Islamic Movement of India ('SIMI'), and also by SIMI because of his imputed association with government authorities. 3 Before the Tribunal the appellant made a number of claims that are set out in the respondent's written submissions as follows: 'The appellant claims that his fear of persecution arises out of the following circumstances: (a) prior to his arrival in Australia on 4 December 2001, the appellant was living in Pudupet, India; (b) after September 11, 2001, the Indian Government banned the Students Islamic Movement of India ('SIMI'). A house owned by the appellant's family was rented to members of SIMI, and the police seized the house; (c) the police came to suspect that the appellant had connections with SIMI. On or about 25 September 2001, the police took the appellant into custody without a warrant, beat the appellant and required the appellant to give a written statement. The police also required the appellant to come to the police station whenever requested; (d) shortly afterwards, a couple of policemen came to the appellant's house and demanded 'a huge amount of money'. They warned the appellant that if he failed to pay the money, he and his family would not be allowed to live peacefully, and would also be taken into custody; (e) the appellant's family paid the money to the police, however, the police continued to demand more money; (f) a few days later, the appellant and his family were awakened at midnight by four to five persons from SIMI. They hit the appellant and warned the appellant and his family not to say anything about or identify any persons belonging to their group; (g) the appellant believed that there was a continuing threat to his life. He decided to leave India and through a friend contacted an agent who arranged travel to Australia.' 4 The Tribunal accepted that the appellant had been detained for questioning because of a perceived possible association with SIMI and that policemen came to the appellant's house and demanded money from him. The Tribunal also accepted that members of SIMI visited the appellant and his family and asked him on several occasions what he had told police. 5 The Tribunal found, however, that the detention and questioning of the appellant was part of the enforcement of the law designed to protect the general welfare of the State. The demands for money, the Tribunal found, were a criminal matter unrelated to his religion or imputed political opinion and there was no real chance that the police would continue to extort money from the appellant or his family based on their past interest in the appellant. 6 The Tribunal construed the claim of persecution by SIMI as a claim of persecution on the basis of imputed political opinion because SIMI considered that the appellant was assisting the Indian government through the police. The Tribunal accepted that the claimed events involving SIMI occurred but found that SIMI's actions did not constitute serious harm to the appellant and that the State was willing and able to take continuing action against SIMI to ensure the further protection of the appellant. 7 Taking all of the evidence together, the Tribunal found that the appellant does not have a well-founded fear of persecution for Convention reasons. 8 The learned Federal Magistrate considered the appellant's claims in detail but was unable to detect any jurisdictional error or bias in the Tribunal's decision. In response to the appellant's claim that the Tribunal overlooked relevant material, Lloyd-Jones FM found that the Tribunal's reasons clearly disclosed that it had considered all of the appellant's claims, material and evidence that were before it. The Federal Magistrate noted at [24]: 'The appellant appeared before me and directed my attention to specific parts of the Tribunal's decision, however that does not assist me. The grounds, the written submissions and the oral submissions made in support of the grounds, are nothing more than an attempt to have the Court consider the merits of the Tribunal's decision and the factual findings made by it. In so far as the appellant seeks a merit review, merits review is not available in this Court: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.' 9 In response to claims of bad faith and bias on the part of the Tribunal, Lloyd-Jones FM found that there was no evidence of or basis for a finding of bias or bad faith. 10 The appellant alleged that there was a denial of natural justice. His Honour found that this submission was not sufficiently particularised and that the requirements of s 422B of the Migration Act 1958 (Cth) ('the Act') had been satisfied. 11 His Honour also stated that he was unable to identify any arguable case based on the material before him. Accordingly he found that the Tribunal's decision was a privative clause decision under s 474 of the Act. 12 The grounds of appeal before me are vague and unparticularised. I note that the Federal Magistrate said that the grounds before him included'…broad, sweeping, repetitive and unsatisfactorily particularised allegations about the motives and actions about the Tribunal and the conduct of the review and about the Tribunal's decision'. 13 There are seven grounds of appeal before me. They are, as numbered in the notice of appeal: '2. The Single judge of the Federal Magistrates Court in her Honors (sic) Judgment delivered on the 13 August 2004 failed to find error of law, Jurisdictional error, Procedural fairness and relief under Section 39 B of the Judiciary Act 1903. 3. The grounds and relief is very much similar with a recent High Court Judgment – Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30… 4. The Honorabletrial judge erred in considering the real state of affairs of my application, I have feared harm. And also the present ruling government fail to protect politicians life, which is a worldwide concern today. Honorable Trial judge did not take it into consideration. 5. S474 of the Migration Act is ineffective as per the recent two decision of the High Court of Australia. Honorable trial judge did not consider this in favor 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 honorable Federal Magistrates. 7. I also mention recent High Court judgement: Plaintiff S 157/2002 v Commonwealth of Australia [2003] HCA 1 (4 February 2003). 8. Recent Federal Court of Australia judgement: SGDB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 74 (14 February 2003).' 14 On 21 October 2004, I gave directions, including directions that the appellant could file an amended notice of appeal and written submissions. No amended notice of appeal was filed. No written submissions were filed in advance of the hearing, although a document entitled 'Written Argument by applicant' was handed up at the commencement of the hearing. The appellant appeared before me today in person and assisted by an interpreter. 15 The respondent's written submissions thoroughly consider each of the appellant's claims. The respondent points to the lack of particularisation of the grounds but proceeds to consider them in some detail. 16 With respect to the first of the grounds, ground two, the respondent notes that there is no suggestion of any specific basis upon which the Tribunal's decision could be impugned. The respondent submits that the Tribunal considered all of the appellant's claims and evidence and made its decision in good faith without any demonstration of bias. With respect to the allegation of want of procedural fairness, the respondent submits that the facts do not disclose any failure on the part of the Tribunal to follow the procedures of the Act. It seems to me that the respondent's submissions in that regard should be accepted in the absence of material upon which to base a different finding. 17 Grounds three, five, seven and eight can be dealt with together. In grounds three, seven and eight a decision of this Court or the High Court is referred to basically by reference simply to the name of the case. In ground five, s 474 of the Act is said to be 'ineffective as per the recent two decision[s] of the High Court of Australia' without further explanation. There is nothing put to the Court as to why the cases should be applied to the facts as presented by the appellant nor why s 474 of the Act does not apply to the Tribunal's decision. When specifically asked as to how the cases apply the appellant was unable to put any matter to the Court. 18 Ground four, the respondent submits, appears to seek review of the Tribunal's decision on its merits, which does not fall within the scope of jurisdictional error. The latter part of ground four, the respondent submits, appears to assert that the Tribunal erred in finding that the appellant would be protected by the Indian government from SIMI because the Indian government has failed to protect the lives of politicians. The respondent submits that the appellant has failed to demonstrate that there was any evidence before the Tribunal concerning this issue which the Tribunal failed to take into account. Those submissions seem to me to be correct. 19 The respondent submits that ground six raises factual considerations and that the Tribunal's determination was open to the Tribunal on the basis of the material before it. To the extent that the appellant claims that he will suffer general violations of human rights upon his return to India, the respondent submits that the appellant has failed to establish that such persecution would be for a Convention reason. Those submissions seem to me to be correct. 20 The material in the written argument by the appellant is full of generalisations which have not been particularised. They either mirror matters that were raised in the grounds of the notice of appeal or refer to cases without any suggestion as to how or why those cases apply to the instant case. The respondent did not advance any further submissions with respect to the written argument by the appellant. 21 The appellant has not made out his claims of jurisdictional error, bias, error of law or any other error by the Federal Magistrate. I note that the Federal Magistrate considered the claims made before him with some care, not only on the basis of the matters put to him by the appellant but also independently on the basis of the material before him. Having carefully considered the claims, the Federal Magistrate found that there had been no error of law on the part of the Tribunal. No error on his Honour's part has been established. 22 While in Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 211 CLR 476 the High Court determined that s 474 of the Act does not preclude judicial review of all decisions made under the Act, the appellant has not shown to me and did not establish before the Federal Magistrate why s 474 of the Act does not apply in the instant case. The remaining matters raised by the appellant either seek a merits review or make allegations that are not supported by any evidence or particularisation. Accordingly, the appeal must be dismissed with costs. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.