SZMBJ v Minister for Immigration & Citizenship [2008] FCA 1759 (25 November 2008)

Last Updated: 8 December 2008

FEDERAL COURT OF AUSTRALIA

SZMBJ v Minister for Immigration & Citizenship [2008] FCA 1759

SZMBJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1248 OF 2008


















MARSHALL J
25 NOVEMBER 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1248 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMBJ Appellant

AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	25 NOVEMBER 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellant pay the first respondent’s costs of the appeal, to be taxed if not agreed.












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 1248 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMBJ Appellant

AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	MARSHALL J
DATE:	25 NOVEMBER 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The appellant appeals from a judgment of a Federal Magistrate which dismissed his application for judicial review of a decision of the Refugee Review Tribunal. The Tribunal had affirmed a decision of a delegate of the first respondent Minister to refuse the appellant a protection visa.

2 The appellant is a citizen of India. In his application for a protection visa he claimed to be a Rajasthani farmer and that as a consequence he had no political and civil freedom in India and suffered from poverty and starvation. He stated simply that he would "provide later" his reasons for leaving his country and details of his claim that he fears persecution if returned to India. The delegate found that the appellant did not face a real chance of persecution for a reason contained in the Refugees Convention if he was returned to India in the reasonably foreseeable future.

3 Before the Tribunal the appellant submitted that he had left India because he was having troubles in India and his father had mortgaged the family’s land to pay 700,000 rupees for his son to be included in a group of Rajasthani cricketers coming to Australia. He said he was being threatened by his brothers-in-law. He claims he was cheated when he married a girl who was not the girl that he had been shown and had agreed to marry. He claimed that after the marriage he would not allow his wife to live with his family, though he did not divorce her. He claims his wife’s family and society generally was pressuring him and the pressure and loss of honour had led to him being admitted to hospital for a month. The Tribunal affirmed the delegate’s decision on the basis that the fears arising from his marriage were not for reasons of his race, religion, nationality, membership of a particular social group or political opinion and that there was no evidence to support the claim that farmers from Rajasthan were a social group treated any differently because of their membership of that social group.

4 The appellant challenged the Tribunal’s decision in the Court below in very general terms. He claimed the Tribunal denied him a proper application of the law, denied him natural justice and did not follow due procedure. The Court below held that the Tribunal complied with all its obligations to accord procedural fairness to the appellant and that the decision of the Tribunal was not affected by any jurisdictional error.

5 The appellant’s grounds of appeal appear not to have been drawn by a lawyer. The only ground of appeal relied on is that the Court below made a mistake in deciding that the case was not arguable in court. This ground of appeal is misconceived as the Federal Magistrate heard the application on a final hearing basis. It was not before the Federal Magistrate to determine whether the application raised an arguable case for the relief claimed under Rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth). I have carefully considered the reasons for decision of the Tribunal and the reasons for judgment of the Court below. I can discern no jurisdictional error in the former and no appealable error in the latter.

6 I note that in his notice of appeal the appellant sought leave to appeal out of time. The appellant filed his appeal in time and it is therefore unnecessary to consider this aspect of his appeal document.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated: 25 November 2008

The appellant appeared for himself.

Solicitor for the First Respondent:

Ms B Anniwell appeared for the Australian Government Solicitor

Date of Hearing:	24 November 2008
Date of Judgment:	25 November 2008