SZDKD v Minister for Immigration and Multicultural and Indigenous Affairs
[2005] FCA 498
•26 APRIL 2005
FEDERAL COURT OF AUSTRALIA
SZDKD v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 498
SZDKD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1782 OF 2004STONE J
26 APRIL 2005
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1782 OF 2004
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZDKD
APPELLANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
STONE J
DATE OF ORDER:
26 APRIL 2005
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the respondent’s costs in the amount of $3,000.
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 1782 OF 2004
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZDKD
FIRST APPELLANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
STONE J
DATE:
26 APRIL 2005
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal from the judgment of a Federal Magistrate handed down on 11 November 2004 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘Tribunal’) made on 24 February 2004 and handed down on 1 April 2004.
BACKGROUND
The appellant is a citizen of India and arrived in Australia on 24 September 2003. On 20 October 2003, he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 13 November 2003, a delegate of the respondent (‘Delegate’) refused to grant a protection visa to the appellant.
The appellant was born in Hyderabad and is an unmarried Muslim man. The appellant claimed in his protection visa application that he left India because of a persistent fear of death and persecution because of his religious and political background. The Federal Magistrate at [4] to [5] of his reasons set out the appellant’s claims:
‘…The applicant claimed to be a Muslim and supporter of a political party known as the Manjlis Itheadul Muslimin (“MIM”) party. The applicant claimed that the party was basically a Muslim-based party involved in social/welfare and that he worked as a student counsellor with the party in 1999.
The applicant also claimed to have supported a political candidate, Mr Sajjad, in a local election. As a result of Mr Sajjad having won the election, the applicant claimed that he became the target of opposition parties and had been attacked and threatened by BJP/Hindu extremists many times. The applicant stated that Mr Sajjad was attacked and killed by opposition extremists in his home. The applicant subsequently left India claiming that the government did not provide adequate protection to the Muslim community in any part of the country.’
TRIBUNAL’S DECISION
On 4 December 2003, the appellant applied for review of the Delegate’s decision to refuse him a protection visa. On 25 January 2004, the appellant advised the Tribunal that he was still waiting for relevant documents that supported his application to come from India. As a result, the hearing of the appellant’s application for review scheduled for 3 February 2004 was rescheduled for 11 February 2004. At the hearing on 11 February 2004, the appellant gave oral evidence to the Tribunal and at the end of the hearing again sought more time in which to obtain a further letter from the party office confirming that he was a genuine member of the Manjlis Itheadul Muslimin party (‘MIM’). While noting that the appellant was previously advised that all material he wished to submit for the Tribunal’s consideration must be received by 6 January 2004, the Tribunal nevertheless agreed to a further extension. The appellant was given until 20 February 2004. The appellant did not provide any further material to the Tribunal by this date and no further extension of time was sought.
The Tribunal accepted that the appellant joined the MIM in 1990 and provided some low level support for the MIM. However, the Tribunal found that he did not hold any position of responsibility or office in the MIM and that he did not even have a high profile in his own area. The Tribunal also noted that the appellant although repeatedly asked about the party’s philosophy, manifesto, political beliefs, goals and ideals, was unable to provide more than vague and general responses. Consequently, the Tribunal was unable to accept that the appellant had anything more than the most basic knowledge of what the MIM stood for and certainly not enough knowledge to be Mr Sajjad's ‘right hand man’, as the appellant claimed. The Tribunal did not accept the appellant’s claim to have been instrumental in Mr Sajjad’s election. The Tribunal concluded in this respect in stating:
‘In short, the Tribunal does not accept these claims and finds that he has embellished them with the objective of enhancing his claims for a protection visa application. The Tribunal also finds that this goes to the question of his credibility.’
Despite a lack of evidence to support it, the Tribunal accepted the appellant’s claim that opposition political workers attacked the appellant on 23 December 2002. The appellant claimed that following the attack he went into hiding for two months in a village about 150 km from Hyberabad. He claimed that he was forced to move as the opposition political parties found out where he was living. The appellant alleged that he was still in fear of persecution and that he would be killed within a week if forced to return to India. He further claimed that he could not relocate within India as the opposition political parties know everything and would chase him from the airport.
The Tribunal rejected these latter claims. The Tribunal noted that the appellant left India legally on 23 September 2003, some nine months after he was attacked, using a passport issued in his own name and showing his date of birth. The Tribunal also referred to the fact that the appellant, after living in hiding for two months until he was discovered by the opposition political parties, returned to his former residence in Hyberabad, where he had lived since birth, and yet was not attacked again. The Tribunal was satisfied that if the appellant genuinely had a well-founded fear of serious harm amounted to persecution, he would have left India immediately and would not have returned to his former residence.
The Tribunal also rejected the appellant’s claim that he could not re-locate within India. The Tribunal found that the appellant did not have such a political or other profile that the opposition political parties would have any interest in him outside of his local area. Referring to the appellant’s various jobs, his fluency in Urdu, (written but not spoken) Hindi and English, and the fact that English is the most important language for national political and commercial communication in India, the Tribunal found that the appellant had the capacity to re-locate within India.
The Federal Magistrate reviewed the Tribunal’s reasons for its decision and held that he was unable to identify any jurisdictional error in the Tribunal’s reasons. His Honour dismissed the application.
THIS APPEAL
The appellant filed a notice of appeal from the Federal Magistrate’s decision in this Court on 1 December 2004. On 9 February 2005 I ordered that the appellant file and serve written submissions seven working days prior to today’s hearing, that is by 14 April 2005. The appellant did not comply with this order and at the hearing of his appeal he declined the opportunity to make submissions, merely asking the Court to consider his case.
The appellant’s ground of appeal, which were not particularised, are that the Federal Magistrate erred by:
(a)failing to find that the Tribunal decision was made in bad faith;
(b)determining that the Tribunal observed s 424A of the Migration Act 1958 (Cth) (‘the Act’);
(c)failing to find jurisdictional error in the decision of the Tribunal; and
(d)failing to consider legal arguments put before him.
The appellant’s notice of appeal also stated that he would ‘provide more details later’. The appellant has not filed, or in fact sought leave to file, an amended notice of appeal nor, as noted above, has he made any oral or written submissions.
Bad faith
The appellant has provided no evidence to support his claim, which was not raised before the Federal Magistrate, that the Tribunal’s decision was made in bad faith. I find no basis for this ground of appeal in the Tribunal’s reasons and it must therefore be rejected.
Section 424A of the Act
The Tribunal considered independent country information in the form of newspaper clippings provided by the appellant and country information in relation to the independence of the Indian judiciary. The appellant’s claim in respect of s 424A of the Act ignores the exception in s 424A(3) which states:
‘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)that the applicant gave for the purpose of the application; or
(c)that is non-disclosable information.’
Section 424A(1) of the Act is expressly stated to be subject to s 424A(3)(a). The ‘independent information’ that the Tribunal considered falls within the exception in s 424A(3)(a) of the Act. The general country information relied on by the Tribunal was not specifically about the appellant and consequently the Tribunal complied with s 424A of the Act.
Jurisdictional error
The appellant claims that the Federal Magistrate erred in failing to determine “whether there was any jurisdictional error” in the Tribunal’s reasons. Given the very clear finding of the Federal Magistrate at [41] that the Tribunal’s decision did not involve jurisdictional error, I will treat this ground of appeal as a claim that the Federal Magistrate erred in this determination, as opposed to having failed to deal with the issue at all.
The Federal Magistrate gave detailed reasons for rejecting the appellant’s claims of jurisdictional error. His Honour was unable to identify any jurisdictional error in the Tribunal’s reasons. The appellant has not provided particulars to support his claim of jurisdictional error before this Court. Having regard to the Tribunal’s reasons and the Federal Magistrate’s judgment, I agree with his Honour that the Tribunal’s decision does not reveal jurisdictional error. This ground of appeal must be rejected.
Failure to consider arguments
The appellant’s final ground of appeal is that the Federal Magistrate failed to consider legal arguments put to him by the appellant. Once again the appellant has not identified any argument that was put to the Federal Magistrate and which his Honour did not consider. In my opinion, the Federal Magistrate dealt with the matters raised by the appellant and rejected his claims.
CONCLUSION
For the above reasons, the appeal must be dismissed. I further order that the appellant pay the respondent’s costs in the amount of $3,000.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.
Associate:
Dated: 26 April 2005
The appellant appeared in person
Counsel for the Respondent:
Mr T Reilly
Solicitor for the Respondent:
Sparke Helmore
Date of Hearing:
26 April 2005
Date of Judgment:
26 April 2005
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