SZDRC v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 333

FEDERAL COURT OF AUSTRALIA

SZDRC v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 333

SZDRC and SZDRD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 2005 of 2004

WILCOX J
24 MARCH 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2005 of 2004

BETWEEN:	SZDRC, SZDRD APPELLANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	24 MARCH 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellants pay the costs of the respondent.

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 2005 of 2004

BETWEEN:	SZDRC, SZDRD APPELLANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WILCOX J
DATE:	24 MARCH 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This is an appeal against a decision of Federal Magistrate Smith by which his Honour dismissed an application for review of a decision of the Refugee Review Tribunal. The Tribunal had affirmed a decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, not to grant protection visas to the appellants. The Chief Justice directed, pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), that the appeal to this Court be heard by a single judge.

2. The appellants are nationals of India.  They are Hindus but they resided in a part of India where there is a large Muslim population and where there was substantial communal violence shortly before they left India to come to Australia.  The Tribunal member, in his reasons for judgment, traced the course of the communal violence. It seems that many people, both Hindus and Muslims, were killed. 

3. However, the Tribunal member found that independent evidence does not indicate that Hindus are denied protection in that part of the country.  He thought it fanciful to suggest this would be the case, given that Hindus are a substantial majority in India.  Accordingly, the member said he was not satisfied that the appellants lacked protection in India.

4. This was a finding of fact.  It is for the Tribunal to find the facts.  The Court has no jurisdiction to review those findings. 

5. The Tribunal member also took the step of considering the possibility of the appellants relocating within India, if in fact there was a problem for them in their home city.  He found this would be a reasonable option for them, given that Hindus are the majority in India.  Once again this was a finding of fact. 

6. When the case went to the Federal Magistrate's Court it appears that no argument of law or allegation of procedural error was advanced.  The appellants merely canvassed the facts of the case.  The magistrate therefore held that jurisdictional error had not been demonstrated and dismissed the application.

7. When the matter came before me at a directions hearing, I pointed out to the appellants the limitations of this Court's jurisdiction.  Notwithstanding that, no argument of legal or procedural error has been advanced to me.  The only matter put before me by the appellants is an assertion that their lives would be at risk if they returned to India.  The validity of this assertion is not for this Court to determine. 

8. I have considered the Tribunal's findings and reasons for decision.  I make no comment about the Tribunal's factual findings.  It is not for the Court to determine the correctness of the factual findings.  However, I have considered whether there is any evident jurisdictional error in the Tribunal's decision.  I find none. 

9. The magistrate was correct in dismissing the application for judicial review.  The appeal should be dismissed with costs.  I so order.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:             4 April 2005

The Appellants appeared in person.
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	24 March 2005
Date of Judgment:	24 March 2005