SZDQK v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 638

FEDERAL COURT OF AUSTRALIA

SZDQK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 638

MIGRATION – appeal from Federal Magistrates Court – no point of principle

SZDQK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 376 of 2005

TAMBERLIN J
SYDNEY
16 MAY 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 376 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	SZDQK APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	16 MAY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the costs of the respondent.
3. Costs be fixed in a lump sum amount of $1500.00.

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 376 OF 2005

ON APPEAL FROM A THE FEDERAL MAGISTRATES COURT

BETWEEN:	SZDQK APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	16 MAY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of Federal Magistrate Lloyd-Jones (“the Federal Magistrate”) delivered on 24 February 2005. 

2. An Amended Notice of Appeal was sought to be filed by the appellant and I allowed it to be filed in Court today.  It is dated 6 May 2005 and sets out eight grounds of appeal which are cast in broad and general terms and do not throw any light on the substance of the appellant's case.  When the matter came on for hearing before me today, the appellant was offered an opportunity to make submissions in relation to these grounds with a view to establishing, if possible, jurisdictional error on the part of the Refugee Review Tribunal (“the Tribunal”) and reviewable error on the part of the Federal Magistrate.  However, no submissions of any substance were made by the appellant.

3. In these circumstances, I have considered the judgment of the Federal Magistrate, together with the reasons for judgment of the Tribunal and I am not persuaded that there is any reviewable error in either of the decisions. 

4. In its findings and reasons for decision, the Tribunal refers to relevant case law.  It accepted that the appellant was involved with the Communist Party of India (Marxist) (“the CPI”) but rejected a number of specific matters raised by the appellant.  Reasons were given by the Tribunal member for the rejection of a substantial part of the evidence given by the appellant and regard was had to relevant country information, which is referred to in the Tribunal’s decision.

5. The Tribunal considered that having regard to the independent evidence, it could not be accepted that if the appellant returned to his home area in Kerala there was any real chance that he would be prosecuted by the police or his political opponents or that police would fail to provide him with protection from persecution, if any, from political opponents for reasons of involvement in the CPI.  The Tribunal was not satisfied, as a matter of fact and degree, that the appellant had a well-founded fear of being persecuted for a Convention reason if returned to India and affirmed the Department’s decision not to grant the appellant a protection visa.

6. On the review application, the Federal Magistrate looked at the appellant’s amended application and the grounds contained therein and considered that the appellant was seeking merits review as opposed to review for jurisdictional error.  Having considered the decision of the Tribunal, the Federal Magistrate was not satisfied that the Tribunal decision was infected by jurisdictional error. 

7. In these circumstances, I dismiss the appeal with costs.  I fix costs in a lump sum amount of $1500.00.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:            24 May 2005

The Appellant appeared in person with the assistance of an interpreter.
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	16 May 2005
Date of Judgment:	16 May 2005