SZEWN v Minister for Immigration and Citizenship

[2007] FCA 1163

FEDERAL COURT OF AUSTRALIA

SZEWN v Minister for Immigration and Citizenship [2007] FCA 1163

SZEWN, SZEWO, SZEWP AND SZEWQ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 528 OF 2007

TAMBERLIN J
31 JULY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 528 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZEWN
First Appellant

SZEWO
Second Appellant

SZEWP
Third Appellant

SZEWQ
Fourth Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TAMBERLIN J
DATE OF ORDER:	31 JULY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to 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 528 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZEWN
First Appellant

SZEWO
Second Appellant

SZEWP
Third Appellant

SZEWQ
Fourth Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TAMBERLIN J
DATE:	31 JULY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from a judgment of a Federal Court Magistrate given on 8 March 2007 dismissing an application for review of a decision by the Refuge Review Tribunal (“the Tribunal”) to refuse the grant of a protection visa to the appellants.  The case for the second to fourth appellants depends on the fate of the application by the first appellant and it is not necessary to consider each as separate applications.  Accordingly, I shall refer only to the “appellant” in these reasons.

2. When the matter came on for hearing before me, the appellant, through an interpreter, informed the Court that he had some photographs which he wished to tender as a basis for going back to the Tribunal to have his case further considered.  Apparently the photographs relate to a fire which was referred to in the decision of the Tribunal.

3. On this point, the Tribunal made several findings and observations.  The Tribunal found that the appellant’s contention that his electronic appliances business had been set alight and destroyed by religious fundamentalists was not substantiated by the evidence.  It also observed that the appellant’s original claim in relation to the fire was that his business was destroyed possibly by faulty wiring.  More importantly, the Tribunal, while not rejecting the fact that there may have been a fire, did not accept the appellant’s explanation regarding the origin of the fire.  The Tribunal was not satisfied with the appellant’s explanation concerning the failure to seek police protection, despite the availability of such protection.  These are findings of fact which are matters for the Tribunal and not for this Court on judicial review.  They have not been shown to be wrong.

4. In addition, the Tribunal did not accept the claim by the appellant that he would be unable to relocate elsewhere within India.  The appellant said that Hindu and Muslim fundamentalists would seek him out and that he and his family would be in danger of serious harm or mistreatment.

5. Having considered the facts and country information, together with the provisions of the Indian Constitution, the Tribunal formed the view that most areas of India, so far as the appellant was concerned, were generally peaceful and that the likelihood of a Hindu being pursed by other Hindus was so remote as to lead the Tribunal to conclude that the appellant did not have a subjective fear of persecution.  Accordingly, the Tribunal found that he did not have a well-founded fear of persecution for a Convention reason.

6. The Tribunal also referred to conflicting evidence given by the appellant in his original submission and later during the hearing before the Tribunal.  On this basis, the Tribunal refused to accept there was any fear, subjective or otherwise, that he or his family would be in danger if repatriated to India, concluding that the primary concern of the appellant was better prospect of education and schooling in Australia for his son.

7. I have considered the reasons for decision of the Tribunal and the Federal Magistrate and can find no reviewable error.  As to the photographs referred to by the appellant, they would not assist his case without a full and proper explanation of how the fire originated or what the motives, if any, of any person who may have caused the fire acted upon.  No such explanation was given.

8. In any event, it must be borne carefully in mind that the task of this Court is to determine whether there is any error of principle in the decision of the Tribunal or of the Federal Magistrates Court on the evidence before them.  The photographs to which the appellant refers were not before the Tribunal or the Court.  Accordingly, they can be of no assistance to the appellant’s case in this appeal.

9. For these reasons, the Tribunal and the Federal Magistrate were entitled to form the view that the evidence did not establish that there was any subjective or objective fear of persecution in the present case.  Accordingly, no substantial injustice will be likely to be caused, in my opinion, as a consequence of a refusal to grant leave to appeal in this matter. The application for leave to appeal is therefore dismissed with costs.

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:       6 August 2007

Counsel for the Appellant:	None
Solicitor for the Appellant:	None
Counsel for the Respondent:	Mr G. Johnson
Solicitor for the Respondent:	DLA Phillips Fox
Date of Hearing:	31 July 2007
Date of Judgment:	31 July 2007