SZCLO v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 1725

FEDERAL COURT OF AUSTRALIA

SZCLO v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 1725

SZCLO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & REFUGEE REVIEW TRIBUNAL

NSD 1942 OF 2005

SACKVILLE J
2 DECEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1942 of 2005

BETWEEN:	SZCLO APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT
REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	2 DECEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent’s 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 1942 of 2005

BETWEEN:	SZCLO APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT
REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGE:	SACKVILLE J
DATE:	2 DECEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of the Federal Magistrates Court given on 28 September 2005.  The Magistrates Court dismissed the appellant’s application for judicial review of a decision of the Refugee Review Tribunal (‘RRT’) handed down on 16 December 2003.  The RRT affirmed the decision of the delegate of the first respondent (‘the Minister’) not to grant the appellant a protection visa.

2. The appellant is a citizen of India, who arrived in Australia on 11 May 2003 and applied the next day for a protection visa.  The Minister’s delegate refused that application on 23 May 2003.  On 18 June 2003, the appellant sought a review of that decision in the RRT.

3. The appellant attended a hearing before the RRT on 6 November 2003.  He answered questions with the assistance of a Gujarati interpreter.

4. The appellant claimed he feared persecution in India on the basis of his political opinion.  He claimed to have been heavily involved in the Congress Party and to have been an official of the Party for the Kalyan Thane area.

5. The appellant said that by reason of his political beliefs, he had been attacked by Hindi fundamentalists in 1999 and 2003.  His attempts to report the incidents to the police were met with indifference.  The appellant claimed that he had left the country because of threats to his life.  He left India on 4 April 2003, but spent a month in Fiji before arriving in Australia.

6. The RRT found that the appellant was not a credible witness on a number of issues.  The RRT did not accept that the appellant was an office bearer, member or worker for the Congress Party.  He had a very poor general knowledge of the current political situation in Maharashtra state and in India generally.  The RRT accepted that the appellant may have attended demonstrations and rallies concerning local issues in Kalyan Thane, but did not accept that the appellant was the organiser of these events or that he attended as a member of the Congress Party.

7. Since the RRT did not accept that the appellant was a member or worker for the Congress Party, it did not accept that any attacks on him had been motivated by his political beliefs.  In any event, the RRT did not accept that the appellant had been attacked at all as he had claimed.  The RRT pointed to disparities between the claims made in his original application and at the hearing concerning the dates of the alleged attacks.

8. The RRT also rejected the appellant’s claims that state protection was not available to him because of his political opinion.  The RRT relied on country information which suggested that the state government of Maharashtra did not condone violence between members of political parties and would not withhold reasonable protection for any Convention-related reason.

9. The RRT further found that, even if it had accepted the appellant’s claims that he was an office bearer and worker for the Congress Party, it would have accepted the country information that the Congress Party has a considerable amount of influence in India and operates legally and openly in the political arena.  The RRT did not accept that members of the Congress Party are targeted for persecution by government authorities by reason of their membership of the Party.

10. Finally, the RRT considered that if, contrary to its views, the appellant faced a real chance of persecution in Kalyan Thane by reason of his political opinions, he could safely and reasonably relocate to another large town or city in India.  The RRT found that the appellant speaks Hindi and Gujarati and reads English and is a qualified and experienced refrigeration and air conditioning mechanic.  As a young man without dependants who had shown an ability to live in Australia without family support, he would not be at risk of any harm in another large town in India if he decided to relocate.

11. For all those reasons, the RRT was not satisfied that the appellant was a person to whom Australia had protection obligations under the Refugees Convention.

12. The Magistrates Court noted that the application relied on by the appellant was in a standard form, and was virtually meaningless.  The particulars had merely amounted to a request for merits review.

13. The appellant had, in addition, filed written submissions which raised a number of issues. These included a claim of actual bias on the part of the RRT and a contention that the RRT had contravened s 424A of the Migration Act 1958 (Cth) (‘Migration Act’).

14. The Magistrate addressed each of the issues raised by the appellant and found that none had any substance.  The Magistrate gave reasons for rejecting each of the claims made by the appellant.  Accordingly, his Honour dismissed the application.

15. The notice of appeal to this Court also appears to be in a standard form. It does not identify any particular error of law on the part of the Magistrate. The appellant’s written submissions, however, contend that the RRT contravened s 424A(1) of the Migration Act by relying on country information relating to India. Although the submissions do not say so, I assume the appellant’s complaint is that he was not informed in writing prior to the RRT’s hearing that the RRT might consider the country information to be information which would justify rejecting his claim for a protection visa.

16. Section 424A(1) of the Migration Act is subject to subsection (3), which provides as follows:

    ‘This section does not apply to information:

    (a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

    (b)… ’

Country information of the kind relied upon by the RRT is within s 424A(3): Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572. Accordingly, the RRT was not under any obligation to put the country information to the appellant pursuant to s 424A(1) of the Migration Act.

1. The appellant, in his written submissions, also maintained that he had been denied natural justice by the RRT.  The basis of that claim is unclear.  In any event, there is no reason to doubt the Magistrate’s conclusion that the RRT had not breached the rules of natural justice.

2. The appeal must be dismissed, with costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated:             2 December 2005

The appellant appeared in person.

Counsel for the respondent:
Solicitors for the respondent:	Clayton Utz
Date of hearing:	2 December 2005
Date of judgment:	2  December 2005