SZEJT v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1123

FEDERAL COURT OF AUSTRALIA

SZEJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1123

MIGRATION – appeal from Federal Magistrates Court – application for protection visa refused by Refugee Review Tribunal – credibility of appellant – ability to relocate within India – no error of law or principle

PRACTICE AND PROCEDURE – joinder of Refugee Review Tribunal as a respondent to the proceedings

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 215 ALR 162 followed

SZEJT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 904 OF 2005

TAMBERLIN J
SYDNEY
12 AUGUST 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 904 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	SZEJT APPLELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	12 AUGUST 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal is dismissed with costs.

2.        The Tribunal is joined as a respondent to the proceedings.

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 904 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

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

JUDGE:	TAMBERLIN J
DATE:	12 AUGUST 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of Federal Magistrate Lloyd-Jones (“the Federal Magistrate”) delivered on 17 May 2005 refusing review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 26 July 2004 in relation to the appellant.  The Tribunal affirmed a decision of a delegate of the Minister not to grant a protection visa to the appellant.

2. When the matter came on for hearing before me today, the appellant appeared in person with the aid of an interpreter but the appellant was able to address me in English.  The principal submission that the appellant made orally was that the Tribunal had not made a proper investigation of his case.  He also said that the Tribunal erred in finding that, even if he were subject to persecution in part of India, he could relocate reasonably within other parts of India.  The appellant says that he has strong roots to the part of India where he previously lived, both from a family point of view and also from a property point of view.

3. I have carefully read the decision of the Tribunal and the decision of the learned Federal Magistrate under review. 

4. The grounds of appeal are cast in broad general terms and the appellant has not pointed to any particular part of the decision of the Tribunal which he says was in error by reference to specific statements in the decision.  The decision of the Tribunal turned on the credibility of the appellant.  The Tribunal formed the view that it did not accept a great deal of the evidence put forward by the appellant for reasons that it gave, which were largely based on general country information and also on inconsistencies and discrepancies in the evidence of the appellant.

5. The Tribunal found that the appellant is a citizen of India and it considered his claims and the evidence which he adduced.  The Tribunal itemised the matters which it rejected and gave reasons for rejecting these matters in considerable detail.  I do not think it can be accurately said that the Tribunal failed to consider the case of the applicant because it set out in considerable detail the claims and evidence relied on and considered extracts from the claims in the statutory declaration of the appellant dated 29 January 2004 and also referred to what transpired during the hearing.  Nothing has been raised before me that indicates any error of law in the present case or any error in principle on the part of either the Tribunal or the learned Magistrate.

6. In addition to finding that the applicant did not have a well-founded fear of persecution, the Tribunal went on to consider the possibility of the appellant relocating within India in the event that it was wrong in its previous findings.  This was an additional and independent consideration, and the Tribunal expressed the view that the applicant could safely and reasonably relocate within India and was not satisfied that there would be continuing interest throughout India by his claimed political opponents.  Relocation is a question of fact and degree and does not raise a question of principle for consideration by this Court. The Tribunal accepted that the appellant is a highly educated man, skilled in business and with many contacts, who had shown that he is capable of residing and working in a country and culture far removed from his own.

7. In these circumstances, I am not persuaded that any error of law or principle has been shown.  Accordingly, since my task is not to review the merits of the application but to consider whether there have been any errors in the procedure or the manner in which the Tribunal dealt with the matter, I am satisfied that there has no been no error in the present case.

8. Accordingly the order of the Court is that the appeal in this matter should be dismissed with costs.

9. As a consequence of the decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 215 ALR 162, it is a requirement that the Tribunal should be joined as a respondent to the proceedings. I grant leave for that to be done instanter.

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

Associate:

Dated:             23 August 2005

The Appellant appeared with the assistance of an interpreter.
Counsel for the Respondent:	T Reilly
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	12 August 2005
Date of Judgment:	12 August 2005