SZLOL v Minister for Immigration and Citizenship [2008] FCA 1829

FEDERAL COURT OF AUSTRALIA

SZLOL v Minister for Immigration and Citizenship [2008] FCA 1829

SZLOL AND SZLOM v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1304 of 2008

TAMBERLIN J

11 NOVEMBER 2008

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1304 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLOL

First Appellant

SZLOM

Second Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: TAMBERLIN J

DATE OF ORDER: 11 NOVEMBER 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1304 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLOL

First Appellant

SZLOM

Second Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR

First Respondent

Refugee review tribunal

MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR

Second Respondent

JUDGE: TAMBERLIN J

DATE: 11 NOVEMBER 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from the decision of Federal Magistrate Raphael on 23 July 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal. The sole ground of appeal is that the learned Magistrate made an error in that he did not find there was jurisdictional error in the decision of the Tribunal because of a breach of s 424A of the Migration Ac (Cth) 1958 ("the Act"). 2 The appellants are a husband and wife, the appellant wife making her claims as a member of the family unit of her husband (hereafter "the appellant"). The appellant wife did not appear in court. 3 When the matter came on for hearing before me today, I invited the appellant to submit an argument and to present a case in relation to the ground of appeal, but there was nothing that he wished to say. I have considered the decision of the Tribunal and that of the Federal Magistrate and am not persuaded that any reviewable error is shown in the decision of the Tribunal, or that any error of law or principle has been established in the decision of the Federal Magistrate. 4 In particular, I note that the appellants were given an opportunity to appear before the Tribunal but failed to do so. As a consequence, the Tribunal did not have any information beyond that which was before it in documentary form. The Tribunal decision did not rely on country information or, indeed, refer to any particular information in respect of which it could be said there was an obligation to inform the appellant under s 424A. The Tribunal noted that, as the appellants did not attend the hearing, the Tribunal did not have an opportunity to test their claims. It then went on to consider in detail the claims of the appellant and the appellant wife, who had not made separate claims. 5 The fears of the appellant were expressed, but the material was found to be vague and lacking in detail. The evidence was found not to be sufficient to persuade the Tribunal there was any real prospect of persecution if the appellant was returned to India. The Tribunal also did not accept that the appellant became a victim of Hindu anger by bad words and attacks, nor did it accept that he was attacked on several occasions and warned not to continue with his work. It was not accepted that he complained to the police, nor was it accepted that he was transferred for his safety, or that he returned to his home city to help with municipal elections. The appellant's evidence to the Tribunal was rejected. This is a determination of fact which is not a matter for this court nor for the Federal Magistrates Court, because the Tribunal is the trier of factual questions. 6 I note that in relation to the provision of information; the issue was addressed by the Federal Magistrate who dismissed the submission and, in the course of doing so, referred to the then recent amendment to the Act under s 424A(3)(ba) which came into force on 29 June 2007, and which provides that obligation to inform under s 424A does not apply to information that the appellants gave during the process that led to the decision that is under review, other than such information that was provided orally by the appellant to the Department. On the basis of that, the Federal Magistrate found that the ground cannot succeed. 7 I agree with that conclusion and, therefore, there is no error in this respect. The law to be applied by the Tribunal was that as of the date of its decision which was made on 19 September 2007, and accordingly, the amendment was in force at that date. Having regard to the above considerations, and in particular the fact that the appellant was unable to direct this court to any particular information or breach or any area in respect of which information was adversely used against him, I am not persuaded that there was any error. 8 Accordingly, this appeal must be dismissed. I order that the appeal is dismissed with costs. I note in this case there is no fixed amount, so the matter can either proceed to resolution on the question of costs by way of agreement or by way of taxation. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.