SZCMD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1003

FEDERAL COURT OF AUSTRALIA

SZCMD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1003 SZCMD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL NSD 194 of 2006 RYAN J 4 AUGUST 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALESDISTRICT REGISTRY NSD 194 of 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZCMD

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: RYAN J

DATE OF ORDER: 4 AUGUST 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondents' costs, to be taxed in default of agreement. 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 WALESDISTRICT REGISTRY NSD 194 of 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZCMD

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: RYAN J

DATE OF ORDER: 4 AUGUST 2006

WHERE MADE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from orders of a Federal Magistrate made on 1 February 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") handed down on 23 December 2003. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs to refuse to grant a protection visa to the appellant. 2 The appellant is a citizen of South Africa. Before the Tribunal the appellant claimed to fear persecution based upon his race or ethnicity. He claimed that he had been discriminated against as a "coloured individual" who voiced his opinion against the ruling party of South Africa. He claimed he had been overlooked for promotion and attacked on numerous occasions and had not received protection from the South African authorities. The appellant attended a Tribunal hearing. 3 The Tribunal did not accept the appellant's claims. It did not accept that "being coloured" was a basis for violence in South Africa or that the appellant had suffered harm as a result of being overlooked for a promotion. The Tribunal also considered that protection was available to the appellant but that in the past the police had not sufficient information to identify the appellant's assailants which explained their failure to act on his complaints. 4 Before the Federal Magistrate the appellant claimed that the Tribunal had failed to determine his application in accordance with the applicable law because it had misconstrued and misapplied the definitions and concepts of "persecution" and "well-founded fear" for the purposes of Article 1A(2) of the Refugees Convention. The appellant referred to the manner in which the Tribunal had dealt with his claims of discrimination in employment. He also claimed that the Tribunal had failed to apply the correct subjective and objective tests to determine whether his fear was well-founded – referring to his claims of having received death threats and having been intimidated on account of his political views. He contended, as well, that the Tribunal had failed to show him or refer him to country information on which it had relied on in drawing its adverse conclusion in respect of his claim and had denied him procedural fairness or natural justice by failing to give him a fair opportunity to comment on, and respond to, that information. Finally, it was said, the Tribunal had misinterpreted, misconstrued and misapplied the country information in reaching its adverse conclusion rejecting his assertion of a well-founded fear of persecution. 5 The learned Federal Magistrate found that it was open to the Tribunal on the material before it to reach the conclusions which it did. In his view, the discrimination in employment suffered by the appellant did not amount to persecution for the purposes of the Refugees Convention and the Tribunal had adopted a proper course in considering the appellant's claims. His Honour concluded that none of the claims raised by the appellant had been established and the Tribunal's decision was free from jurisdictional error. 6 By notice of appeal filed on 8 February 2006 the appellant repeated the claims which he had made before the Federal Magistrate that the Tribunal had misconstrued and misapplied the definitions and concepts of "persecution" and "well-founded fear" for the purpose of Art 1A(2) of the Refugees Convention; and had failed correctly to apply the subjective and objective test of a well-founded fear of persecution. Further, he contended, the Tribunal had failed to furnish him with country information which it had used in assessing whether his claimed fear was well founded and had misunderstood, misinterpreted and misapplied the country information in drawing incorrect or inappropriate inferences.