SZCKS v Minister for Immigration & Multicultural & Indigenous Affairs

[2006] FCA 530

FEDERAL COURT OF AUSTRALIA

SZCKS v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 530

Migration Act 1958 (Cth)

SZCKS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS  and REFUGEE REVIEW TRIBUNAL

NSD 29 OF 2006

KIEFEL J
SYDNEY
10 MAY 2006

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 29 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZCKS
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

KIEFEL J

DATE OF ORDER:

10 MAY 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The appeal is dismissed.

2.        The appellant pay the respondents’ 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 29 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZCKS
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	KIEFEL J
DATE:	10 MAY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of a Federal Magistrate.  His Honour dismissed an application to review the decision of the Refugee Review Tribunal which had affirmed the decision of the Minister’s delegate not to grant a protection visa under the Migration Act 1958 (Cth).

2. The appellant is a citizen of India, born in Tamil Nadu and a Hindu.  He told the Tribunal he belonged to a lower caste. 

3. The Tribunal did not accept the appellant as credible in his claims for protection.  It rejected his claim that he faced death at the hands of the Indian authorities for a Convention reason.  In this regard it referred to the ‘paucity, generality and indecisiveness of the Applicant’s oral evidence at the hearing in respect to what he claimed to be fleeing from and why he would be arrested and killed by the police on returning to India’.  The Tribunal further noted that the appellant had departed India without difficulty on a passport issued in his own name.  Country information indicated that anyone of concern to the authorities, and for whom an arrest warrant is in force, could not depart the country undetected. 

4. The appellant’s case before the Tribunal also included claims based upon his fear of persecution because he was a member of a social group of low caste persons.  Persecution in this regard included his inability to obtain employment.  Whilst the Tribunal accepted the prevalence of caste conflict in Tamil Nadu, the Tribunal could not be satisfied of these claims because of the vagueness about and evasiveness by the appellant concerning his educational and employment history.

5. Eight grounds were relied upon by the appellant for review:  that the Tribunal misunderstood the reasons he would face persecution which he said arose because of his lowly caste which denied him employment opportunities and the prospect of a fair trial;  that he had been denied procedural fairness and the opportunity to explain that he had witnessed a political killing;  that the Tribunal failed to consider his claims of constant harassment for three years by political activists;  that it denied him procedural fairness by relying upon country information which was adverse to him;  that the Tribunal misapplied “the test” or alternatively misinformed the applicant about “the test”;  that the Tribunal’s reasoning was illogical or irrational;  and because it failed to give proper and adequate reasons and failed to consider all his claims.

6. His Honour accepted the Minister’s submissions as to the grounds.  Ignoring those submissions of the Minister which responded to unparticularised and general grounds for review, the Minister denied that the Tribunal had not understood and dealt with the appellant’s claims.  They had been rejected largely because they were not accepted as credible.  There was no denial of procedural fairness.  There was nothing to suggest an attempt by the appellant to put forward another case based upon his witnessing a political killing and there was no obligation, on the part of the Tribunal, to provide particulars of the country information. In any event, the Tribunal’s reasons show that the appellant was given an opportunity of dealing with that information, the Minister submitted.

7. The sole ground of appeal to this Court is that:

   ‘The Refugee Review Tribunal erred in failing to consider all claims and issues put forward by me.’

8. No basis for finding error on the part of his Honour was disclosed during the hearing of the appeal.  The appellant simply said that the Tribunal should have accepted his claims.  I have read the reasons of his Honour and those of the Tribunal.  I can discern no error.

9. The appeal will be 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 Kiefel.

Associate:

Dated:             10 May 2006

For the Appellant:	In Person
Counsel for the Respondents:	Ms L Clegg
Solicitor for the Respondents:	Sparke Helmore
Date of Hearing:	10 May 2006
Date of Judgment:	10 May 2006