Case: SZEZI v Minister for Immigration &amp; Citizenship [2005] FCA 1195
Outcome: applied
The applicants' complaint under ground (c) appears to have been that the Tribunal failed to give them "particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision": sub-s (1)(a). After quoting a passage from the judgment of Allsop J in SZEZI v Minister for Immigration &amp; Citizenship [2005] FCA 1195 , the Magistrate dismissed this ground as follows at [14]-[15]: The Tribunal, having read all the material and evaluated its contents and weight, was unable to be satisfied that the applicant had a well-founded fear of persecution because of the perceived inaccuracies in the information. The reason for the Tribunal decision was no more than that. It was the applicant's lack of further assistance and explanation that was the reason for the decision. ... This Tribunal did not make positive findings of facts about the position of the applicant but, rather, rejected his claims because of its inability to be satisfied on the lack of information before it that Australia owed protection obligations to him ... 6 The Magistrate was of the view that all three grounds of appeal were adequately addressed by applying SZEZI and another case to which he referred, SZCIA v Minister for Immigration &amp; Citizenship [2006] FCA 238. His Honour dismissed the application. The dismissal was made pursuant to Rule 44.12 of the Magistrates Court Rules , which provides that on an application for an order to show cause, the Court may, if it is not satisfied that the application has raised an arguable case, dismiss the application. Such an order is interlocutory: subrule (2). The applicants require leave to appeal. They have thus far proceeded as if they have an appeal as of right. I will treat them as applying for leave. 7 The grounds in the applicants purported "notice of appeal" to this Court are: (a) The Tribunal did not understand their fear of harm and misapplied the relevant law. The Tribunal failed to assess the cumulative effect of separate incidents suffered by them. (b) They were denied procedural fairness. The Magistrate "failed to consider [that they] did not attend the hearing due to misdirection and unawareness about the process of hearing". 8 There is no substance in ground (a). The Tribunal recorded the first applicant's claims upon which his fear of persecution was based, and said that his application was not supported by any evidence. Immediately before the passage set out at [3] the Tribunal said at page 6: The first applicant has made a number of unsubstantiated claims in relation to his membership and active involvement in the BJP; his father's involvement in the VHP and RSS; his involvement as a member of the BJP in the Gujarat election campaign which took place after the Godhra incident; and that he was part of a post election procession which was attacked by opposition members who threw stones. The first applicant also claimed that he was attacked at night when returning home from his work and then, six months later, he and the second applicant were attacked when returning to their home at night after attending a birthday party. It was then that the Tribunal said it was "unable to establish the facts of the matter", and that the applicants had not responded to its invitation to attend a hearing and provide further material. 11 Although it is not a proposed ground of appeal, I should say that the s 424A ground pursued before the Magistrate has no merit. In SZEZI Allsop J said at [29]: The Tribunal, having read all the material and having evaluated its content and weight, was unable to reach a specified mental state. It was not satisfied that the appellant had a well-founded fear because of subjectively perceived inadequacies in the information. The reason for the decision was simply (and no more than) the evaluative conclusion founded on the perceived inadequacy of the information, in the sense of an absence of detail and extrinsic explanation which had been invited. It would be an inadequate and misleading statement to say that the information was the reason or part of the reason for the decision. It was the lack of the requested further assistance and explanation that was the reason. I agree with the Magistrate that this passage is applicable to the present case. 12 Because there is no prospect of the applicants' establishing either of their grounds of appeal, or a ground based on s 424A, the application for leave to appeal must be dismissed. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg. Associate: Dated: 8 August 2008 The appellants appeared in person. Solicitors for the Respondents: Clayton Utz Date of Hearing: 6 August 2008 Date of Judgment: 8 August 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1160.html