SZCJY v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 556

FEDERAL COURT OF AUSTRALIA

SZCJY v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 556

Migration Act 1958 (Cth) Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 referred to M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 referred to Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 referred to NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 referred to SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 referred to SZCJY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 70 OF 2006 TAMBERLIN J SYDNEY 19 APRIL 2006 IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 70 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN: SZCJY

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: TAMBERLIN J

DATE OF ORDER: 19 APRIL 2006

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 NSD 70 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN: SZCJY

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: TAMBERLIN J

DATE: 19 APRIL 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a decision of Federal Magistrate Raphael made on 19 December 2005 dismissing an application for review of a decision of the Refugee Review Tribunal ("RRT"). The decision of the RRT, which affirmed the decision of the Ministerial delegate to refuse an application for a protection visa, was made on 21 November 2003 and published on 16 December 2003. 2 The Notice of Appeal filed on 9 January 2006 refers to two grounds. The first is that the Federal Magistrate failed to determine whether there was any jurisdictional error in the decision of the RRT handed down on 16 December 2003. This is uninformative and does not spell out any particular basis. The second ground is that the Federal Magistrate failed to understand that the appellant never authorised his representative to declare that the applicant was not willing to go to the hearing. Having regard to the material in the Appeal Book, there is no substance in this second ground. The evidence is that the appellant authorised the immigration agent to act and receive communication. I do not need to go into this further, but the documentation in the Appeal Book clearly establishes this point. 3 Two other matters were raised by counsel for the respondent. Neither of these issues was referred to by the appellant. The first issue raised was whether the decision in Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 applied in the present circumstances. Having regard to the cases referred to by counsel for the respondent, including the decisions of Gray J in M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 ("M55 v MIMIA") and the decision of Jacobson J in NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 ("NAZY v MIMIA"), I am persuaded that in the present case the material in the file which was before the Department was incorporated in the Application for Review to the RRT. 4 A copy of the appellant's Application for Review to the RRT dated 26 June 2003 is provided at pages 44-47 of the Appeal Book. On page 46, there is a heading entitled "Your reasons for making this application." Under this heading, there is an express reference and request by the appellant for reference to be made to a specific DIMA file, namely, CLF 2003/22764. The appellant there stated that: "I strongly believe that the decision made on the above file is incorrect as all the material facts on the record has not been considered and it is liable to be set aside." 5 Following this statement, the appellant wrote that a detailed submission would be filed at a later date. It is clear to me that in making the above statement, the appellant has incorporated all the material in that file in his Application to the RRT by requesting that the RRT refer to the file reference and all the contents in the file. Accordingly, I am persuaded that there has been no breach of s 424A(3)(b) of the Migration Act 1958 (Cth) ("the Act"). 6 Counsel has also referred me to the recent decision of the Full Court in a number of cases including SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2, which was handed down on 24 February 2006 after the decision of the Federal Magistrate in this matter. In my view, having looked at the reasons for judgment in that case, I am not persuaded that they vary the position in any way from the position taken in NAZY v MIMIA or in M55 v MIMIA. Accordingly, I do not consider that there is any basis for a contention that there has been a breach of s 424A. 7 Another matter referred to by counsel was alluded to in the decision of the Federal Magistrate concerning the possible application of Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 ("S395/2002 v MIMA"). At page 3 of the Federal Magistrate's judgment in the present case, the Magistrate refers to a statement by in the RRT's decision which reads: 'As noted in the country information cited above there is a history of violence between the Hindu and Muslim communities in India but the applicant's experience in dealing with this situation will, in the Tribunal's view, enable him on return to act with sufficient care as to avoid situations in which he would be likely to suffer violence.' 8 The view taken by the Federal Magistrate was that this statement was simply a general statement as to the experience of the appellant in relation to general violence in India, and was not related directly or indirectly to his contention of a well-founded fear of persecution for Convention reasons. I consider that on a fair reading of this paragraph in the context of the RRT decision, it could not be said that this comment amounted to a breach of the principles laid down by the High Court in S395/2002 v MIMA. Accordingly, I am of the view that there is no substance in this appeal and there does not appear to be any error in principle or law that would warrant allowance of the appeal. 9 Accordingly, I dismiss the appeal with costs. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.