SZCII v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 571

FEDERAL COURT OF AUSTRALIA

SZCII v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 571 SZCII v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 1777 of 2004 WILCOX J 4 MAY 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1777 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZCII

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: WILCOX J

DATE OF ORDER: 4 MAY 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the costs of the respondent. 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 NSD 1777 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZCII

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: WILCOX J

DATE: 4 MAY 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT WILCOX J: 1 This is an appeal against a decision of Federal Magistrate Barnes dismissing an application to review a decision of the Refugee Review Tribunal ('the Tribunal'). The Tribunal had affirmed a decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, not to grant to the applicant a protection visa. 2 The Chief Justice has given a direction, under s 25(1A) of the Federal Court of Australia Act 1976, that this appeal be heard and determined by a single judge. 3 The case put by the appellant to the Tribunal was that he was an Indian citizen and a Muslim. He claimed he had, for many years, been a member of the Indian Union Muslim League (IUML), that he was an active and prominent member of the IUML, and had been persecuted by reason of that fact. It is not clear to me whether his claim of persecution was on the basis of his religion or his membership of a particular political group. It does not matter which was the true situation. 4 The appellant claimed before the Tribunal that he had been persecuted at the hands of various non-Muslim political parties, the BJP, the RSS and Shiv Sena. The appellant referred to various incidents, which he said demonstrated the hostility of these parties towards himself and the reason why he would be in danger if he returned to India. 5 The Tribunal accepted that the appellant had been a member of IUML but found that he was not a leader in it. He had never been a candidate for election but merely supported IUML candidates. The Tribunal found his involvement in the IUML was charitable and altruistic in nature. The Tribunal, in effect, held he was not so prominent as to be likely to encounter persecution on that account by members of opposing political parties. 6 The Tribunal rejected the appellant's claim because it was not satisfied of the truth of his account of various incidents he related. The Tribunal accepted that anti-Muslim violence occurs in India, and that the political parties mentioned by the appellant have been involved in that violence. In other words, the Tribunal accepted that the alleged perpetrators were capable of carrying out anti-Muslim violence, but it was not satisfied this had occurred, or was likely to occur, in relation to the appellant. 7 When the matter came before the magistrate, the appellant was represented by counsel, Mr B Zipser. Mr Zipser took the magistrate, in some detail, to the material before the Tribunal concerning two incidents. He argued the Tribunal erred in finding that the appellant had given inconsistent accounts of those incidents. He also argued the Tribunal denied the appellant procedural fairness in relation to the second incident because the member had not told the appellant she was sceptical about his evidence that he was able to identify the perpetrators of an alleged assault. The fact that the Tribunal had not given him an opportunity to comment on these concerns was said to constitute a denial of procedural fairness. 8 The magistrate gave reasons for holding there was no inconsistency vitiating the Tribunal's decision. She also gave reasons as to why there was no question of lack of procedural fairness. I agree with the magistrate's reasoning on these matters. 9 The appellant filed a written submission in support of his appeal to this Court. It runs for six pages. It is repetitive and refers extensively to the facts claimed by the appellant. References are made to authorities dealing with procedural fairness. When I asked the appellant to relate those authorities to the case he wishes to make in this Court, he said he could not explain the relevance of the cases. The appellant told me the document had been prepared with the assistance of a friend and he did not really understand the document. 10 I have read the document. I have also read the Tribunal's reasons for decision. There is little correspondence between the two. The document does not deal with any particular finding of the Tribunal. I cannot relate the general statements set out in the submission, many of which are undoubtedly correct, to the facts of this case. When I pressed the appellant to help me in regard to this, he told me that he could not do so. He said he would like to get a lawyer. However, it is now over six months since the hearing before the magistrate. The appellant had ample opportunity to obtain the services of a lawyer, if that was his wish. When the matter was fixed for hearing, I told the appellant the matter would proceed today, and he had to be ready. I am not prepared to adjourn the hearing of the matter. 11 As the appellant has been unable to put any alleged jurisdictional error to me, and I have been unable to discern any myself, I have no option other than to dismiss the appeal. 12 The order of the Court is that the appeal be dismissed with costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.