SZFEY v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 1763

FEDERAL COURT OF AUSTRALIA

SZFEY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1763

SZFEY v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD1592 OF 2005

EMMETT J
12 OCTOBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1592 OF 2005

BETWEEN:	SZFEY APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	12 OCTOBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed. 

2.        The appellant pay the respondent’s costs in the sum of $1950.

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	NSD1592 OF 2005

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

JUDGE:	EMMETT J
DATE:	12 OCTOBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant claims to be a citizen of India.  He arrived in Australia on 12 November 2003 and on 3 May 2004 lodged an application for a protection (class XA) visa under the Migration Act 1958 (Cth) (‘the Act’). On 19 May 2004, a delegate of the respondent, the Minister for Immigration & Multicultural & Indigenous Affairs (‘the Minister’), refused to grant a protection visa. The appellant then applied to the Refugee Review Tribunal (‘the Tribunal’) on 25 May 2004 for review of the delegate’s decision. On 27 October 2004, the Tribunal affirmed the decision not to grant a protection visa.

2. The appellant then commenced a proceeding in the Federal Magistrates Court seeking Constitutional writ relief in respect of the Tribunal’s decision under s 39B of the Judiciary Act 1993 (Cth).  On 18 August 2005, for reasons given on that day, Scarlett FM ordered that the application be dismissed and that the applicant pay the Minister’s costs in the sum of $4,400. 

3. The appellant filed notice of appeal to this Court on 6 September 2005.  The matter came before me for directions on 28 September 2005.  On that day, the matter was listed for hearing today.  The appellant was directed to file and serve written submissions no later than five clear working days before today.  No submissions were filed.  When the matter was called on for hearing today there was no appearance for the appellant.

4. The notice of appeal to this Court discloses no arguable ground of appeal.  The grounds are simply as follows:

   ‘A writ of mandamus second respondent (Tribunal) re determine the application for a protection visa in accordance with law, such further or other orders as the court seen fit.’

5. If anything, those words suggest relief that might be granted pursuant to s 39B, they certainly do not constitute grounds.  The grounds before the Federal Magistrates Court were as follows:

   1.The Tribunal member’s failure to take into account a relevant consideration that the appellant was an active member of the Congress Party and not just a supporter.

   2.The Tribunal member failed to take into consideration that as a member of the family unit that was under constant threat of grievous bodily harm at the hands of Chenna Reddy’s hired hoodlums the appellant was a member of a particular social group that feared persecution.

   3.The Tribunal failed to take into relevant consideration the constant harassment for almost three years.

   4.The Tribunal used critical adverse information obtained after the delegate’s decision which was not provided to the appellant before the hearing nor put to the appellant during the hearing.

   5.The Tribunal misapplied the test or, alternatively, misinformed the appellant about the test.

   6.The Tribunal member's reasoning could be labelled irrational or illogical so as to indicate a failure to perform the review function at all.

   7.The Tribunal member failed to give proper and adequate reasons.

   8.The Tribunal erred in failing to consider all claims and issues put forward by the appellant.

6. The appellant appears to have made no submissions before the Federal Magistrates Court. However, he attended a hearing before Scarlett FM Court and responded to inquiries put to him concerning the grounds in his application. Scarlett FM was not persuaded that there was any reviewable error on the part of the Tribunal.

7. The appellant apparently claimed to fear persecution from one Chenna Reddy who is a member of the BJP political party.  He claimed that Chenna Reddy would harm him because he refused to marry Chenna Reddy’s daughter.  He also claimed he was an active supporter of the Congress Party and that Chenna Reddy does not want him to continue his support for the Congress Party.  He claimed that Chenna Reddy had made threats to kill him and that he would use his political connections with the BJP to find the appellant and cause him harm if he returned to India.

8. The Tribunal observed that the claims made at the hearing before the Tribunal differed in some respects from the appellant’s written claims.  The Tribunal considered that the claims made at the hearing represented the appellant’s claims for the purposes of the application and did not attach any significance to minor inconsistencies between the written claims and the claims made at the hearing.

9. The Tribunal accepted that the appellant was born and grew up in Andhra Pradesh.  It also accepted that the appellant’s father had borrowed money from Chenna Reddy, who was a prominent local businessman and supporter of the BJP.  The Tribunal accepted that the appellant’s father was unable to repay a debt owed to Chenna Reddy and that as a result the appellant and his family were placed in an unpleasant and unhappy situation, when Chenna Reddy tried to use financial pressure against the appellant and his family to force the appellant to marry his daughter.

10. The Tribunal did not accept that the appellant faced any real chance of persecution from Chenna Reddy or the BJP, although it accepted that he may not wish to live in the same locality due to his refusal to marry Chenna Reddy’s daughter.  The Tribunal found that the appellant had not been harmed or mistreated as a result of the conflict with Chenna Reddy.

11. While the Tribunal accepted that the appellant was a supporter of the Congress Party, it did not accept that he was a member of the party or had any active role in party politics by way of giving speeches at student functions or demonstrations as he claimed.  The Tribunal did not accept that the appellant was threatened with harm by Chenna Reddy for the reason of his support of the Congress Party. 

12. In any event, the Tribunal found that even if the appellant faced a real chance of persecution from Chenna Reddy, the essential and significant reason for the harm that he claimed he feared was of a private and domestic nature and was not Convention related.

13. In addition, the Tribunal accepted country information that India has a reasonable level of state protection, with functioning agencies of law and justice that are provided to citizens on a non-discriminatory basis.  The Tribunal found that the appellant would be able to access that protection and that that protection would not be withheld for any Convention reason.

14. The Tribunal found that the appellant would not face any risk of persecution for reasons of his support of the Congress Party, or for any political opinion that he might hold.  The Congress Party had won the most recent national elections and state elections in Andhra Pradesh. 

15. The Tribunal referred to India’s longstanding tradition of democracy, functioning agencies of law and justice, and the large number of human rights institutions established to protect the human and political rights of its citizens.

16. There is nothing in the material before me to indicate that the appeal would have any prospects of success. It is appropriate therefore to accede to the Minister’s application that the proceeding be dismissed pursuant to s 25(2B)(bb)(ii) of the Act.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:            7 December 2005

No appearance for the Applicant
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	12 October 2005
Date of Judgment:	12 October 2005