SZACP v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1395

FEDERAL COURT OF AUSTRALIA

SZACP v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1395

SZACP v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N 1037 OF 2003

WHITLAM J
26 NOVEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1037 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZACP APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WHITLAM J
DATE OF ORDER:	26 NOVEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

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	N 1037 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZACP APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WHITLAM J
DATE:	26 NOVEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of the Federal Magistrates Court, dismissing with costs an application for prerogative relief in respect of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 30 October 2002:  SZACP v Minister for Immigration [2003] FMCA 268. The decision of the Tribunal handed down on 21 November affirmed a decision refusing to grant a protection visa to the appellant. The background to the application for that visa and its consideration by a delegate of the respondent and the Tribunal is set out in the reasons for judgment in the court below.

2. The notice of appeal alleges that the Federal Magistrate erred in failing to find that the Tribunal had fallen into jurisdictional error.  The amended grounds of appeal do not engage in terms with the reasons in the court below by way of suggesting what should have been found to indicate that there was a jurisdictional error on the part of the Tribunal.  Essentially the submissions made on this appeal repeat what was said in the court below and suggest that the error made by the Federal Magistrate turned on the construction given to the decision of the High Court in Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1.

3. The respondent submits that in Khawar the Tribunal did not consider whether state protection was unavailable for a Convention reason in light of country information suggesting this possibility and so erred.  The respondent submits that Khawar is of no application in this case where the Tribunal has positively found that state protection is available to the appellant.  I think that submission must be accepted.

4. The other ground advanced by counsel for the appellant today essentially amounts to a complaint that the country information before the Tribunal did not support its conclusion that state protection was available to the appellant.   However, as the Federal Magistrate himself noted, there was evidence available to the Tribunal on which it was open to the Tribunal to come to the conclusion that it did.

5. The Federal Magistrate was conscious that other views could be reached and remarked expressly that another Tribunal could have easily come to  another conclusion (at [24]).  I should only add that it is clear that in this case the Tribunal accepted that the appellant fell within a social group consisting of women in Hindi society.  That finding, and the finding that the state would afford her effective protection, make it unarguable that the Tribunal failed in any way to deal with a claim of state inactivity for a Convention reason. 

6. No error has been revealed in the court below and accordingly the appeal will be dismissed with costs.

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

Associate:

Dated:             1 December 2003

Counsel for the Applicant:	J M Patel
Counsel for the Respondent:	T Reilly
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	26 November 2003
Date of Judgment:	26 November 2003