SZCFB v Minister for Immigration and Multicultural Affairs [2006] FCA 1189 (8 August 2006)

Last Updated: 8 September 2006

FEDERAL COURT OF AUSTRALIA

SZCFB v Minister for Immigration and Multicultural Affairs [2006] FCA 1189

SZCFB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 355 OF 2006





DOWSETT J
8 AUGUST 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 355 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZCFB Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND ANOTHER First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	DOWSETT J
DATE OF ORDER:	8 AUGUST 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the first respondent’s costs of the appeal.

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 355 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZCFB Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND ANOTHER First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	DOWSETT J
DATE:	8 AUGUST 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of a Federal Magistrate, declining to order review of a decision of the Refugee Review Tribunal pursuant to s 39B of the Judiciary Act. The magistrate summarised the appellant’s claim by reference to the Refugee Review Tribunal’s reasons as follows.

claims that his younger brother fell in love with an “out of caste religion girl”. He went to speak to her father and family about the possibility of marriage however when they found out that he was from a different caste they would not agree. He claims that his brother and the girl would not accept this and so he took them to the “arya samaj and they got married there”. The girl’s family were angry and looked for him to kill him. The girl’s two brothers are solicitors with links to political parties and the police. The girl’s family considered his family to be “common people so they started pressuring me that’s why it was better for me to leave the country.” The applicant claims that one day the girl’s brothers came to his bakery and caused damage to furniture. He claims that he was not there; otherwise they would have killed him. He also claims that he could not complain to the police as “they were under the hand” of the brothers and were corrupt. He claims that he then had to sell that bakery and move to another area where he started another bakery. The brothers came to know of this and again caused him trouble and made his life miserable. He is scared to return as the brothers are still angry with him and may kill him. They may kidnap him, kill him and then dump his body in the countryside. He claims that the authorities will not protect him as they are corrupt and her brothers are solicitors.’

2. The appellant was invited to attend a hearing in the Refugee Review Tribunal and did so. In the course of the hearing he admitted that he had made a false statement in relation to his place of education so that the story would sound better. He also told the Tribunal that he had originally wanted to apply for a business visa, but that he was advised that he had no chance of obtaining such a visa and that he should apply for a protection visa.
3. It seems that the Tribunal questioned him concerning the caste system. This was an integral part of his claim to fear persecution. He disclosed no understanding of it. The Tribunal rejected his application, primarily upon the basis that it did not accept his claim concerning relevant events. To some extent it relied upon the fact that he had admitted having made a false statement in his visa application. The Tribunal also took note of the fact that he had, in effect, come to Australia for business reasons. The magistrate saw no reason to intervene in this finding (which was essentially one of credit). The appellant today has advanced no reason for doubting the availability of such a conclusion. That is really sufficient to dispose of this appeal. However, I should say something about one or two other matters.
4. The Tribunal apparently considered that the appellant’s claim to fear persecution for a Convention reason fell within the scope of s 91S of the Act. As I understand that section, it deals with claims of fear of persecution by reason of the experiences of other members of the same family. I am not sure that the appellant’s claim is of that kind. It may, in any event, be doubted whether his claim can be seen as a claim to fear persecution for a Convention reason. It seems to me that he claims to fear revenge for his part in arranging the marriage, rather than to fear persecution because of his membership of the family group. In any event, it is not necessary to take the matter further.
5. The Tribunal also considered that if he feared harm in Hyderabad, he could relocate to elsewhere in India. The magistrate saw no reason to intervene in this finding, and no such reason has been advanced on appeal.
6. The appellant, at some stage, also complained of failure to comply with the procedural fairness requirements of the Act, in particular s 424A. However the information about which such complaint is made was “country information”; falling squarely within the exception contained in subs 424A(3).
7. The appellant also complained of a failure by the secretary to comply with subs 418(3). The magistrate found no substance in that complaint. No basis for any challenge to that decision has been raised before me.
8. Today, the appellant has again claimed to fear for his safety in India. He says that he is now in a position to advance his claim to refugee status with improved prospects of success. However that is not a matter with which I can be concerned. In the circumstances, no basis is shown for upsetting the decision of the magistrate.
9. The appeal is dismissed with costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated: 1 September 2006

Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondent:	Mr G R Kennett
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	8 August 2006
Date of Judgment:	8 August 2006