SZJSO v Minister for Immigration and Citizenship [2008] FCA 749 (5 May 2008)

Last Updated: 23 May 2008

FEDERAL COURT OF AUSTRALIA

SZJSO v Minister for Immigration and Citizenship [2008] FCA 749

Migration Act 1958 (Cth) ss 91R, 424A

































SZJSO v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 2495 OF 2007

TAMBERLIN J
5 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2495 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJSO Appellant

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

JUDGE:	TAMBERLIN J
DATE OF ORDER:	5 MAY 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.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2495 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJSO Appellant

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

JUDGE:	TAMBERLIN J
DATE:	5 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal from a Federal Magistrate who refused judicial review in relation to a decision of the Refugee Review Tribunal ("the Tribunal") which had affirmed a decision of a delegate of the first respondent ("the Minister") not to grant a protection visa. When the matter came on for hearing before me, the appellant made no submissions, although being invited to do so both before and after hearing the submissions for the Minister. The Notice of Appeal is framed in general terms which are uninformative. Accordingly, I have found it necessary to consider carefully the reasoning of the Tribunal and of the Federal Magistrate.

2 The Tribunal referred to the evidence before it and found that the applicant is an Indian national who applied for a visitor visa to Australia in 2003. He had previously applied for and was granted a visa to visit South Africa in November 2004, from where he departed on 26 December 2004. There are also references in the Tribunal’s decision to exits from and returns to India by the appellant. On the basis of this information and in the light of other independent country information, the Tribunal reasoned that, having regard to what it found to be the appellant’s low profile as a member of the National Congress Party, coupled with his ability to depart from and return to India without difficulty, the appellant would not be liable to be persecuted if returned to India. The Tribunal was extremely sceptical about the appellant’s claim to be a member of the National Congress Party with any profile, having regard to his lack of knowledge of its fundamental aims and objectives. It also did not accept his claims in relation to passports.

3 The Tribunal sent a letter to the appellant in compliance with s 424A of the Migration Act 1958 (Cth) ("the Act") setting out its concerns. I am satisfied that this letter was adequate and that the appellant had ample opportunity to deal with the questions raised by the Tribunal. The Tribunal also placed great emphasis on the fact that the appellant, although well aware of the right to and method of applying for visas, did not seek a protection visa whilst in Australia during the period of 1 November 2003 through to 24 January 2004, at which point he departed. The Tribunal did not accept the appellant as a witness of truth. It found that the appellant was neither a supporter or member of the National Congress Party, nor involved in the organisation of demonstrations or processions, nor incarcerated for putting up political posters. The Tribunal did not consider that there was any persecution of the appellant in the sense of systematic and discriminatory conduct. Accordingly, the Tribunal did not consider that there was any serious threat to life or liberty, having regard to the requirements of s 91R of the Act.

4 Having considered the reasoning of the Tribunal and the reasons for judgment of the Federal Magistrate below, and having regard to the failure of the appellant to point to any significant error in either set of reasons, I am persuaded that this appeal should be dismissed with costs.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin

Associate:

Dated: 22 May 2008

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondents:	Ms B Nolan
Solicitor for the Respondents:	Sparke Helmore

Date of Hearing:	5 May 2008
Date of Judgment:	5 May 2008