SZLDK v Minister for Immigration and Citizenship [2008] FCA 860

FEDERAL COURT OF AUSTRALIA

SZLDK v Minister for Immigration and Citizenship [2008] FCA 860

SZLDK v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 379 of 2008

GRAHAM J

20 MAY 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 379 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLDK

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GRAHAM J

DATE OF ORDER: 20 MAY 2008

WHERE MADE: SYDNEY

THE COURT:

1. Orders that the appeal be dismissed. 2. Orders that the appellant pay the costs of the respondent Minister fixed in the sum of $2,255. 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 379 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLDK

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GRAHAM J

DATE: 20 MAY 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant, who is identified for the purposes of these proceedings as 'SZLDK', applied his signature as appellant to a Notice of Appeal filed in this Court on 19 March 2008. That Notice of Appeal contained three grounds of appeal in paragraphs 2, 3 and 4 thereof as follows: '2. The single Judge of the Federal Magistrate Court in his Honours judgement delivered on the 4 March 2008 failed to find error of law, jurisdictional error, procedural fairness and relief under section 39B of the judiciary Act 1903. 3. The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the Refugee Review Tribunal. 4. The Federal Magistrate made a legal, factual and jurisdictional error in not applying the principles laid down by the full court of Federal Court in Randhawa v The Minister for Immigration Local Government and Ethnic Afairs (1994) 52 FCR 437.' 2 When invited to speak to the grounds of appeal, the appellant said words to the effect that he had no knowledge of the law; that he didn't understand the law; that he didn't know the meaning of what was in the Notice of Appeal; that he approached a friend who helped him; that friend's name was Abdullah and he couldn't find him anymore and that he didn't know what to say in support of his appeal. He says that his home was damaged; the police didn't give him protection; that that is what he told the Refugee Review Tribunal ('the Tribunal'), and that no notice was taken by the Tribunal of what he had said. He then indicated that if somebody would help him he would be thankful, and that he would like the Tribunal to reconsider his case. He repeated that his home had been damaged. 3 The grounds of appeal incorporated in the Notice of Appeal are what I might call boilerplate grounds which have been thrown up in a number of recent Notices of Appeal coming before the Court in different matters. They are extremely difficult to comprehend, especially where no jurisdictional error is demonstrated and the appellant has no idea as to why the grounds of appeal were incorporated in the Notice of Appeal. 4 The appellant was born in Avaniapuram in India on 15 November 1957. He worked as a bus driver at the Sri Krishna Matriculation School, which was founded by a Mr Palanisamy. During the morning of 15 or 16 July 2004, it would appear that there was a fire in the school which resulted in the deaths of some 94 children. The appellant made certain observations and was told certain things about the fire which he reported to the police. The headmaster and founder of the school, and others, were arrested by the local police. During the investigation of the accident, the appellant was apparently interviewed and informed the police of what he knew. His words were 'I told the truth'. 5 Thereafter, it would appear, according to his application for a protection visa, that he had approaches made by the school management to his family. He was threatened by those who made the approaches to give a false statement about what he was able to say about the fire. As it transpires, he is a Muslim, but as recorded in the reasons of the Tribunal, to which I will shortly refer, he claimed to fear serious harm because he worked at the school where the fire occurred and gave evidence about the fire. 6 The appellant obtained an Indian passport on 15 March 2006. In 2006, he obtained a number of visas entitling him to enter Thailand, and other visas which entitled him to enter Singapore and Hong Kong, and it would appear that for about six months in 2006 he travelled extensively in Thailand, Singapore and Hong Kong. On 27 November 2006, he obtained an Australian visitor's visa. On 26 December 2006, he left India for Thailand, and on 28 December 2006, he arrived in Australia. 7 On 7 February 2007, he applied for a Protection (Class XA) visa. A delegate of the Minister decided on 24 February 2007 that his application should be refused. On 20 March 2007, the appellant applied to the Tribunal for review of the Minister's delegate's decision. An invitation was extended to the appellant to attend a Tribunal hearing, which he did on 9 May 2007. In the meantime, he had written a letter to the Tribunal, on 3 May 2007, which restated many of the matters that had been included in the statement which he provided in support of his protection visa application on 7 February 2007. On 18 June 2007, the Tribunal decided that the decision of the Minister's delegate to refuse the appellant's visa application should be affirmed. That decision was handed down on 10 July 2007. 8 On 1 August 2007, the appellant applied to the Federal Magistrates Court of Australia for constitutional writ relief in respect of the Tribunal's decision. An Amended Application was filed on 22 October 2007, which came before Cameron FM on 4 March 2008. His Honour ordered that the application be dismissed and that the appellant pay the respondent Minister's costs fixed in the amount of $4,200.00. From that decision of the learned Federal Magistrate, the appellant has appealed to this Court by the Notice of Appeal filed 19 March 2008, to which reference has earlier been made. 9 In the course of the reasons for decision of the Tribunal, the following appeared in the section headed 'FINDINGS AND REASONS': 'The applicant claims that he will be persecuted for political reasons and because he is a Muslim. The Tribunal … accepts that the applicant has been threatened because he gave evidence to the Police about the fire at the Sri Krishna School. The Tribunal also accepts that the police offered to protect the applicant. However, the Tribunal is not satisfied that the applicant fears harm for a Convention reason. … … … although the Tribunal accepts that the applicant was threatened, the Tribunal is not satisfied that the applicant's evidence establishes that he was subjected to threats or that his house was damaged because of Convention reasons. The applicant's own evidence is that the threats were instigated by the owner of the school … in order to stop the applicant giving evidence or information about the origin of the school fire. The Tribunal is satisfied that the threats were solely aimed at preventing the applicant from giving further evidence or information about the school fire. The Tribunal is not satisfied that there was any other reason for persons to threaten the applicant other than in an attempt to prevent him giving evidence or information. The Tribunal is satisfied that the applicant was not the subject of threats and damage to his home for reasons of his religion or political opinion or for any other Convention reason.' 10 Later, the Tribunal repeated that it accepted the appellant's evidence that the sole reason that threats were made against him was to prevent him giving evidence about the school fire. 11 In the circumstances, the Tribunal was not satisfied that the appellant had a well-founded fear of persecution within the meaning of the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967. 12 I am unable to discern any jurisdictional error on the part of the Tribunal. It seems to me that on the facts as found, it was not open to the Tribunal to find that the appellant was outside the country of his nationality owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. In the circumstances, the appeal should, in my opinion, 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 Graham.