SZENU v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 464

FEDERAL COURT OF AUSTRALIA

SZENU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 464

SZENU v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1663, upheld

SZENU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 2475 OF 2005

GYLES J
19 APRIL 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2475 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZENU
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

GYLES J

DATE OF ORDER:

19 APRIL 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.   The appeal be dismissed.

2.   The appellant pay the costs of the first 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 2475 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZENU
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	GYLES J
DATE:	19 APRIL 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of the Federal Magistrates Court given on 22 November 2005 (SZENU v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1663) dismissing an application seeking to set aside an earlier decision of the Refugee Review Tribunal (the Tribunal) which had confirmed the refusal by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs of a protection visa to the appellant.

2. The appellant is a citizen of India.  He is a Sikh, who claims fear of persecution by the Indian police by virtue of events in Jammu and Kashmir whereby he was forced to give harbour to Pakistani militants in his house.

3. The grounds of appeal from the learned Federal Magistrate's decision have been reduced to two in number.  I need not set them out in full.  The first ground of appeal challenged a finding that the evidence of the appellant was vague and contained embellishments.  This finding gave rise to a question as to the appellant’s credibility.

4. The difficulty with this ground is, as submitted by the solicitor for the first respondent and as found by the learned Federal Magistrate, that the Tribunal accepted that the appellant did have a genuine fear of persecution by the Indian police for the reason given and that he had suffered from treatment by the police which did amount to persecution.  The appellant was found to have left the area accordingly. 

5. The second ground of appeal arose from a reference by the Tribunal to the fact that the appellant had not been arrested and put on trial but had been advised to leave Jammu and that it believed that this was because the police did not see the appellant as a threat.  Again, the difficulty with the argument is that it leads nowhere because the Tribunal accepted that he had a genuine fear of persecution if he stayed in Jammu and Kashmir.  Whether he was or was not arrested and whether he was or was not put on trial are not critical to that question, which was decided, effectively, in his favour. 

6. There was a vague suggestion that the appellant might have feared the Pakistani militants rather than the Indian police, but there appears to me to be no support for that proposition in the material in the papers before me, and the solicitor for the appellant was unable to point to any material which would support that suggestion.

7. In my opinion, there is merit in the finding of the learned Federal Magistrate and in the submission on behalf of the Minister that the finding by the Tribunal concerning relocation is, in the circumstances of this case, a complete answer to the points that have been made in any event.  There is no ground of appeal relating to the finding of relocation, and it does not seem to me that there could have been an arguable ground of challenge.  The Tribunal’s decision seems to be a fairly conventional application of the principle.

8. Therefore, in my opinion, although the solicitor for the appellant said all that could be said on the appellant’s behalf both in writing and orally, I am bound to dismiss the appeal, which I do, and order that the appellant pay the costs of the first respondent.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:             2 May 2006

Solicitor for the Applicant:	C Jayawardena
Solicitor for the Respondents:	Anthony Cox of Phillips Fox
Date of Hearing:	19 April 2006
Date of Judgment:	19 April 2006