SZDVZ v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1291

FEDERAL COURT OF AUSTRALIA

SZDVZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1291

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

SZDVZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 759 0F 2005

TAMBERLIN J
SYDNEY
9 SEPTEMBER 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 759 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	SZDVZ APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	9 SEPTEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The appeal is dismissed with 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 759 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

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

JUDGE:	TAMBERLIN J
DATE:	9 SEPTEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of Federal Magistrate Mowbray (“the Federal Magistrate”) given on 27 April 2005 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”), affirming a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) to refuse the appellant a protection visa. 

2. When the matter came on for hearing before me this morning, the appellant referred to the Amended Notice of Appeal filed on 5 September 2005 but did not make any oral submissions in relation to the grounds in that Notice of Appeal. 

3. It was pointed out by Ms Morgan, who appeared for the Minister, that the substantive grounds relied on are pars 3, 4 and 5 of the Amended Notice of Appeal and it is said that these grounds only give rise to questions of fact.  There is substance in this submission.

4. In the Amended Notice of Appeal, the appellant seeks the leave of the Court to add additional grounds that could not be raised by the Judge at first instance.  The Amended Notice of Appeal then states that the Federal Magistrate erred in failing to find that the Tribunal's finding that the appellant was not a secretary or office bearer of a branch of the PMK was not supported by evidence.  This is a question of fact.  The next ground raised in the Amended Notice of Appeal was that the Federal Magistrate erred in failing to find that the Tribunal was incorrect in finding that the appellant's position within the Consumer Rights Movement in Tamil Nadu was one of respect only and that the appellant had not claimed that his position with that organisation had resulted in harm.  That again is a question of fact.  The final question raised in the Amended Notice of Appeal is that the Federal Magistate erred in failing to find that the appellant’s decision to temporarily relocate was a forced one.  Again, this is a question of fact and degree.

5. I note that, in its decision, the Tribunal had regard to a great deal of general country information in reaching its conclusion.  The Tribunal found that the appellant is a citizen of India.  The claims made by the appellant are set out in the findings and reasons of the Tribunal.  The Tribunal member did not accept, however, that the appellant was an office-bearer of the PMK, although he may have been involved in some political activities, and did not accept that he had a reasonable fear of harm if returned to India.  It was found that the appellant’s fears were based on speculation.  The Tribunal did not accept the appellant’s claim that he would feel compelled to fight for the rights of his caste and involve himself in politics if he was returned to Tamil Nadu.

6. As I mentioned earlier, the country information was accepted by the Tribunal that the PMK party is a small, legally-operating party in Tamil Nadu.  Importantly, the Tribunal member found that India has an independent judiciary with a fair and accessible judicial system with significant legal rights of open trial, legal representation, right to innocence and rights of appeal.  The Tribunal member also accepted that India has a broad range of democratic institutions.  In the light of this, the Tribunal member found that if the applicant were returned to any part of India he would not face any real chance of persecution for reasons of his political opinion and that, if threatened, he would be able to access reasonable and effective State protection.

7. I can see no error in the reasoning of the Tribunal or the Federal Magistrate on appeal and, accordingly, the orders which I make are that the appeal be dismissed with costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:            19 September 2005

The Appellant appeared in person with the assistance of an interpreter.
Counsel for the Respondent:	K Morgan
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	9 September 2005
Date of Judgment:	9 September 2005