FEDERAL COURT OF AUSTRALIA SZODX v Minister for Immigration & Citizenship [2010] FCA 824 Citation: SZODX v Minister for Immigration and Citizenship [2010] FCA 824 Appeal from: SZODX v Minister for Immigration & Anor [2010] FMCA 299 Parties: SZODX v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number(s): NSD 545 of 2010 Judge: MARSHALL J Date of judgment: 5 August 2010 Legislation: Migration Act 1958 (Cth) s 425 Cases cited: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 SZODX v Minister for Immigration & Citizenship & Anor[2010] FMCA 229 Date of hearing: 3 August 2010 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 14 Counsel for the Appellant: Self represented Solicitor for the First Respondent: Sparke Helmore Counsel for the First Respondent: Mr R White IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 545 of 2010 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZODX Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: MARSHALL J DATE OF ORDER: 3 AUGUST 2010 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The appellant pay the first respondent's costs of the appeal, fixed at $2,700. 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 Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 545 of 2010 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZODX Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: MARSHALL J DATE: 5 AUGUST 2010 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The appellant is a citizen of India. He entered Australia as the holder of a student visa granted in July 2007. He remained in Australia on student visas, the last of which expired on 15 September 2009. On 4 September 2009 he applied for a protection visa. A delegate of the respondent Minister refused that application. The appellant applied to the Refugee Review Tribunal to review the delegate's decision. The delegate affirmed the Tribunal's decision. The appellant then sought judicial review of the Tribunal's decision in the Federal Magistrates Court. That Court dismissed his application. He now appeals from that judgment, (see, SZODX v Minister for Immigration & Citizenship & Anor[2010] FMCA 22). 2 The claim for a protection visa centred on the appellant's contention that he feared persecution if returned to India in the reasonably foreseeable future by reason of his membership of a particular social group. 3 The appellant said he was a member of the Harijan caste, which is the lowest caste in India. He claims to have been active in organising a social committee for advancing the rights of the Harijan class and engaging in protest rallies. The appellant supplied a "statement of claim" document to the delegate in support of his application for a protection visa. The delegate's decision records, that he invited the appellant to an interview to expand on his claims but the appellant did not avail himself of that opportunity. 4 After receipt of the appellant's application to review the delegate's decision, the Tribunal invited him to appear at an oral hearing before it. The appellant advised the Tribunal that he did not wish to give evidence before it and was content for the Tribunal to determine the matter on the material before it. The review application contained no material additional to the statement before the delegate. 5 The letter sent to the appellant advising him of the availability of an oral hearing also advised him that the Tribunal had considered the material before it but was unable to make a decision favourable to the appellant on that material alone. 6 The Tribunal observed that the appellant's statement contained vague and unsubstantiated assertions which it was unable to test. It considered that, on the limited material before it, it could not be satisfied that the appellant was a Harijan or any other low caste Indian. It also was not satisfied that he had suffered harm as a result of being a member of a particular caste. 7 The Tribunal considered itself unable to be satisfied that the appellant had a well founded fear of persecution if returned to India. 8 The appellant's amended application for judicial review to the Federal Magistrates Court took issue with the merits of the Tribunal's decision. It made broad assertions about discrimination against lower caste Hindus and the appellant's alleged role in fighting for their rights. No jurisdictional error was identified. Unsurprisingly, the Federal Magistrate found no jurisdictional error in the reasons of the Tribunal and considered the application to be a request to engage in impermissible merits review by restating claims contained in the material before the Tribunal and challenging findings of fact made by the Tribunal. 9 The appellant's notice of appeal is a discursive argumentative document, which restates matters of alleged fact in the appellant's "statement of claim" before the delegate and the Tribunal. It raises no basis upon which the Court could find that the Federal Magistrate made an appealable error or the Tribunal made a jurisdictional error. 10 The appellant claims in Ground 1 that his alleged social group was "badly dismantled by the Hindus of the upper class", but that this issue was not addressed by the Tribunal. The appellant's "statement of claim" before the delegate asserted that: As a social group there are reports that our people were burnt alive, there houses were set on the fire, if any one of us ever dared to say anything against the people of the high class Hindu's. (Reproduced as found in the appellant's "statement of claim"). 11 The Tribunal was not able to test that allegation as the appellant declined to attend an oral hearing before it. No jurisdictional error was committed by the Tribunal in failing to be satisfied about the veracity of those claims in the absence of clarification of them by the appellant. Ground 1 is not made out. 12 Ground 2 of the appeal seeks to call in aid "US country information". The Tribunal had no such information before it, as the appellant declined to supply any material to it additional to his "statement of claim" document. That document made no reference to country information. This issue was addressed by the Federal Magistrate in the Court below at [70]-[75]. As noted by the Federal Magistrate, the appellant misconceived the Tribunal's reasoning, and noted that the Tribunal rejected the appellant's factual account to have suffered persecution in the past because his claims lacked substance. The Federal Magistrate further found that, due to the appellant electing not to attend the Tribunal hearing, he left his statement (which included references to country information) in an unsatisfactory state, which the Tribunal could not accept. Furthermore, the choice of country information and the weight to be accorded to it is a matter for the Tribunal's determination: (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10). It therefore follows, that Ground 2 is not made out. 13 Ground 3 alleges that the Tribunal failed to apply "the proper law and procedure". It alleges that the appellant has fulfilled "all elements of being a refugee", as submitted in "the statement of claim". This ground is untenable. No failure to follow "proper law or procedure" is particularised. The appellant perceives incorrectly that the untested and untestable assertions in his "statement of claim" must have been accepted by the Tribunal. As noted by the Federal Magistrate, the Tribunal complied with s 425 of the Act by sending the appellant an invitation to attend a hearing. It also complied with s 425A by giving notice of the time, date and place for the hearing, which was given by one of the methods set out in s 441A (4) of the Act (i.e. by registered pre-paid post). As further noted by the Federal Magistrate at [63]-[64], the Tribunal did consider the appellant's claims, however: Simply, the applicant did not attend a hearing to provide such detail, and it could not be satisfied on what was before it that his claims were true. Ground 3 is not made out. 14 The appeal is dismissed, with costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 5 August 2010