SZEWG v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1762

FEDERAL COURT OF AUSTRALIA

SZEWG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1762

SZEWG v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 1381 OF 2005

EMMETT J
9 NOVEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1381 OF 2005

BETWEEN:	SZEWG APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	9 NOVEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal should be dismissed.

2.        The appellant pay the respondent’s costs in the sum of $3300.

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	NSD1381 OF 2005

BETWEEN:	SZEWG APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	9 NOVEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a national of India who arrived in Australia on 12 November 2003.  On 11 December 2003, he lodged an application for a protection visa under the Migration Act 1958 (Cth) (‘the Act’). On 16 December 2003, a delegate of the first respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) refused to grant a protection visa. On 6 January 2004, the appellant sought review of that decision by the second respondent, the Refugee Review Tribunal (‘the Tribunal’). On 25 May 2004, the Tribunal affirmed the decision not to grant a protection visa.

2. The appellant was notified of that decision on 16 June 2004. On 9 July 2004, the appellant commenced a proceeding in the Federal Magistrates Court of Australia seeking Constitutional writ relief under s 39B of the Judiciary Act 1903 (Cth) in respect of the Tribunal’s decision. On 14 December 2004 the appellant filed an amended application. That was filed pursuant to directions made by the Federal Magistrates Court on 12 October 2004. On 29 July 2005, Federal Magistrate Lloyd Jones ordered that the application be dismissed and that the applicant pay the Minister’s costs. By notice of appeal filed on 4 August 2005, the appellant appeals to the Federal Court from the orders of Lloyd Jones FM.

3. On 30 September 2005, Sackville J directed that the appellant file and serve written submissions 14 days prior to the hearing date of the appeal.  The appeal has been fixed for hearing today.  No written submissions have been filed on behalf of the appellant.  When invited to make oral submissions today, the appellant said that he did not wish to make any submissions other than that he could not return to India.

4. The appellant is a Hindu who was born in Kerala State.  He has spent much of his adult life working in countries outside India.  He travelled in February 2002 to Germany on business.  Before that, in 1997, he travelled to the United States for employment.  He did the same in Singapore in 1992 and in Kuwait in 1990.  The appellant came to Australia on a business visa.  He claimed before the Tribunal that that was only a pretext for seeking asylum in Australia from the authorities in India.

5. The Tribunal observed, however, that the Indian authorities nevertheless sighted his passport and authorised him to depart India on 11 November 2003.  The Tribunal observed that the appellant’s business visa was issued in New Delhi in 13 October 2003, but that he waited a month before using it to travel to Australia.

6. The appellant claims to be entitled to a protection visa, based on an assertion that he had become caught in the middle of a struggle between Hindu extremists, Muslim activists and the police in Mumbai.  He claimed that he lived near a building that housed the operations of a gang of bootleggers.  He claimed that, on the night of 21 September 2003, some men who he recognised as members of a Hindu extremist party ran bleeding into his house to avoid a sword-wielding group of Muslim extremists.  He claimed that he locked the doors and refused to give the men over and that the police came later to rescue them.

7. The appellant claimed before the Tribunal that he was regarded by the police and the Hindu extremists as a pivotal witness to the attack on the Hindus.  He claimed that the police, the Hindus and the Muslims each pressed him to be a court witness in proposed proceedings.  He also claimed before the Tribunal that Bal Thackeray, a notorious Hindu supremacist, ordered the police to press false bootlegging charges against him for refusing to act as a prosecution witness against the Muslims.  The appellant claimed that those false charges are evidence that the police and the Hindus want to kill him.

8. The Tribunal accepted that the appellant is a national of India from Kerala and that he is a Hindu.  The Tribunal found that the appellant’s travel to Australia formed a pattern with his business and career interests.  The Tribunal considered that the appellant’s claims about having come to Australia for other reasons that are Convention related are undermined by implausibility and inconsistency, irrespective of the degree of hostility between Muslims and Hindus in Bal Thackeray’s home town of Mumbai.  The Tribunal did not accept that the appellant’s claims were factual.  The Tribunal did not accept that the appellant offered refuge to Hindu activists fleeing a Muslim gang or any of the facts the he claimed followed from it.

9. The Tribunal considered that the appellant’s evidence supporting his claims about flight from Mumbai was highly inconsistent, and struck the Tribunal as the product of an attempt on the appellant’s part to appear the innocent, uninformed beneficiary of outside assistance, at the same time as hiding the true order of events and the places in which they occurred.

10. The Tribunal considered that, in any event, whilst there is Muslim/Hindu inter-religious conflict in India, some of which has been fermented in Mumbai by Mr Thackeray, the appellant failed to show that he is wanted for Convention related reasons.  The most that could be said is that each party wanted the appellant to be a witness in criminal cases.  His claims that they want to harm him because he would not help them convict each other do not reflect a Convention based reason for persecution.  The Tribunal was not satisfied that the appellant faces a real chance of Convention related persecution in India if he returned.

11. An amended application was filed in the Federal Magistrates Court.  Eleven grounds were mentioned.  Grounds 1 to 5 were rejected as claims for merits review.  They were as follows:

    ‘1.In page 3 of the decisions the Refugee Review Tribunal has stated that there are four key elements to the convention definition.  The applicant states he satisfies all the four key elements.  The Tribunal failed to appreciate that.

    2.The Tribunal failed to see that the applicant’s ‘convention-related’ claims are not factual.

    3.The Tribunal erred in not accepting that the applicant offered refuge to RSS activists fleeing a Muslim gang.

    4.The Tribunal completely erred in not accepting any thing pursuant to the ground number 3 stated above.

    5.The Tribunal is not correct in saying that the entire matter is imaginary.  The Tribunal has not given the necessary importance to the facts and circumstances.’

12. Ground 6 is an allegation that the Tribunal predetermined the appellant’s matter.  That appears to be an allegation of bias without any particulars or evidence and was rejected by Lloyd-Jones FM on that basis.

13. Ground 7 was an allegation that the Tribunal had concluded that the appellant was safe in India because he had been able to depart India without any basis for that conclusion.  His Honour rejected that ground of review as misconceived because the Tribunal had relied on the appellant’s departure from India to highlight the implausibility of the appellant’s overall story in respect of his circumstances that he was inviting the Tribunal to believe.

14. Ground 8 was an allegation that the Tribunal had failed to see that Muslim/Hindu conflict was a serious matter.  After referring to those parts of the Tribunal decision which were contrary to such an allegation, Lloyd-Jones FM rejected the ground as contrary to the Tribunal’s findings.

15. Ground 9 asserted that the Tribunal erred in stating that the appellant was not wanted for a Convention related reason.  Lloyd-Jones FM rejected that ground of review because the accurate description of the appellant’s claims was the result of common criminal activity and therefore outside the Convention.

16. Grounds 10 and 11 were challenges to findings of fact by the Tribunal, that the Tribunal should have accepted the situation that each party wanted the appellant to be a witness in criminal cases and that the appellant was a witness to murder and if he gave evidence he would be killed by the other group.  If he did not give evidence he would be harassed by police officials.  Those claims by the appellant were rejected by the Tribunal on the basis of the Tribunal’s assessment of his credibility.

17. Lloyd-Jones FM considered that the Tribunal’s findings were open to it on rational grounds and the material before it, and that there was no error disclosed in the Tribunal’s treatment of the appellant’s credibility.

18. In his notice of appeal, the appellant set out grounds as follows:

    ‘Federal Magistrates [sic] on 29 July 2005 should have held that the Refugee Review Tribunal erred in law because the Tribunal has misinterpreted of the law, failed to follow a compulsory procedure, taken into account an irrelevant consideration, and failed to give a fair hearing, therefore the Tribunal decision is infected by an error of law.  Federal Magistrate erred in law in failing to find that the Refugee Review Tribunal did not comply with the provision of s 424A(1), did not provide me all the adverse information on which they relied to reject my review application lodged with the Tribunal and did not put the inconsistencies which they found between my evidence provided by me to the delegate and the Refugee Review Tribunal.

    Particulars of the grounds of appeal will be filed and served when required by the Federal Court.’

19. Insofar as the notice of appeal discloses intelligible grounds, they bear no resemblance to the grounds relied upon in the amended application in the Federal Magistrates Court.  The notice of appeal does not identify any error on the part of the Federal Magistrates Court. Lloyd-Jones FM dealt expressly with each of the grounds raised in the amended application and disposed of them in a manner which appears to me to be unexceptionable.

20. In essence, the Tribunal rejected the appellant’s claims on two bases; the first was that it did not believe him, the second was that even if it did, his claims were not of persecution for any Convention reason. There is nothing before me and there was nothing before Lloyd-Jones FM to indicate any jurisdictional error on the part of the Tribunal. Accordingly, s 474 of the Act precluded any challenge to the decision of the Tribunal.

21. The Federal Magistrates Court correctly dismissed the application.  There was no error.  The appeal should be dismissed.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             7 December 2005

The Appellant appeared in person.
Counsel for the Respondent:	Ms K. Morgan
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	9 November 2005
Date of Judgment:	9 November 2005