SZLKJ v Minister for Immigration and Citizenship [2008] FCA 879 (28 May 2008)

Last Updated: 20 June 2008

FEDERAL COURT OF AUSTRALIA

SZLKJ v Minister for Immigration and Citizenship [2008] FCA 879

CORRIGENDUM

SZLKJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR


NSD 246 OF 2008









EMMETT J
27 MAY 2008 (CORRIGENDUM 19 JUNE 2008)
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 246 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	EMMETT J
DATE OF ORDER:	27 MAY 2008
WHERE MADE:	SYDNEY

CORRIGENDUM

1. The date of judgment should be amended to read "27 May 2008" on the covering front page of the reasons for judgment, the order page of the reasons for judgment and the first page of the judgment.

I certify that the preceding one (1) numbered paragraphs is a true copy of the Corrigendum to the Reasons for Judgment of the Honourable Justice Emmett.

Associate:

Dated: 19 June 2008

FEDERAL COURT OF AUSTRALIA

SZLKJ v Minister for Immigration and Citizenship [2008] FCA 879

SZLKJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR

NSD 246 OF 2008



EMMETT J
28 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 246 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLKJ Appellant

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

JUDGE:	EMMETT J
DATE OF ORDER:	28 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs fixed in the sum of $1,800.










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 246 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLKJ Appellant

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

JUDGE:	EMMETT J
DATE:	28 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal from orders made by the Federal Magistrates Court dismissing an application for judicial review of a decision of the second respondent, the Refugee Review Tribunal (the Tribunal).

2 The appellant is a citizen of India and arrived in Australia in April 2007. On 30 April 2007, the appellant applied for a Protection (Class XA) visa under the Migration Act 1958 (Cth) (the Act). On 23 May 2007, a delegate of the first respondent, the Minister for Immigration and Citizenship (the Minister), refused that application. On 14 June 2007, the appellant sought review of that decision by the Tribunal. On 18 August 2007, the Tribunal affirmed the delegate’s decision not to grant a protection visa. The appellant was notified of that decision on or shortly after 6 September 2007.

3 On 2 October 2007, the appellant commenced a proceeding in the Federal Magistrates Court seeking judicial review of the Tribunal’s decision. On 4 February 2008, the Federal Magistrates Court ordered that the proceeding be dismissed and ordered the appellant to pay the Minister’s costs in the sum of $2,100. The appellant then appealed to the Federal Court of Australia by notice of appeal filed on 21 February 2008.

4 The appellant’s claims that he fears persecution relate to problems he has had in his village. He referred to a history of conflict between Muslims and Hindus in his village, including an attack on the mosque in his village in February 2005, an attack on his father in December 2005, a dispute over a piece of land and the forcible occupation of a Muslim graveyard in 2006, attacks on a madrassa and Muslim houses in August 2006 and an attack on the appellant when he was coming home from college on his motorcycle in October or November 2006.

5 The Tribunal did not accept that there was a real chance that the appellant, as a Muslim, would be threatened, mistreated, attacked, killed or otherwise persecuted by Hindus by reason of his religion as a Muslim, his membership of a particular social group constituted by his family, or his real or imputed political opinion based on perceived association that the he or his father may have with the Congress Party in India. The Tribunal did not accept that the Indian Government indirectly supported attacks on Muslims or Muslim sites as the appellant claimed. The Tribunal accepted that the appellant abandoned his studies in order to come to Australia. However, the Tribunal did not accept on the evidence before it that, if the appellant returned to India now or in the reasonably foreseeable future, he would be discriminated against by reason of his religion as a Muslim.

6 The grounds of review in the appellant’s application to the Federal Magistrates Court are totally uninformative. He simply asserts that the Tribunal "made legal error [and] breached procedures required by law." In the reasons for its decision, the Federal Magistrates Court pointed out that the appellant did not file written submissions. In an amended application to the Federal Magistrates Court, filed on 10 December 2007, the grounds were no more informative. The appellant asserted that "all [his] Convention reasons [were] not assessed [and that] adverse information raised after the hearing was not sent to [him] for [his] comments before the [Tribunal’s] decision."

7 The appellant’s complaint that adverse information was not put to him appears to be misconceived. There was no information raised after the hearing. As the primary judge observed, there is nothing to show that the Tribunal relied on any information other than the appellant’s evidence and independent country information. While the Tribunal referred to the appellant’s claims in his written statement accompanying the application for a protection visa, the Tribunal did not rely on that information in any adverse sense as being a reason or part of the reason for affirming the delegate’s decision.

8 At one stage in its reasons, the Tribunal pointed out that, even if the appellant had problems in his village, he could have escaped the problems by moving elsewhere, as it appears his family has done. In oral submissions before the Federal Magistrates Court, the appellant apparently took exception with the Tribunal’s finding that he was able to relocate elsewhere in India. However, it is clear that the primary basis upon which the Tribunal made its decision was that it was not satisfied that the appellant has a well-founded fear of being persecuted for a Convention reason.

9 The primary judge pointed out that there were no particulars of any alleged legal error or breach of procedure and that there was no indication of any procedural unfairness in the procedure that the Tribunal adopted. His Honour was satisfied that no jurisdictional error on the part of the Tribunal had been established.

10 The notice of appeal to this Court is totally uninformative. It simply asserts as grounds "jurisdictional error", "breach of procedural fairness" and "natural justice". The appellant filed no written submissions. He appeared in person with the assistance of an interpreter. When invited to make submissions in support of his appeal he simply said that he was not satisfied with the decision of the Tribunal or the Federal Magistrates Court.

11 The appeal is totally without substance and should never have been filed. It should be dismissed.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated: 17 June 2008

The Appellant appeared in person.
Counsel for the First Respondent:	B Anniwell (solicitor)
Solicitor for the First Respondent:	Australian Government Solicitor

Date of Hearing:	27 May 2008
Date of Judgment:	27 May 2008