SZFFV v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 734

FEDERAL COURT OF AUSTRALIA

SZFFV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 734

SZFFV & SZFFW v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 535 of 2005

BRANSON J
27 MAY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 535 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZFFV
FIRST APPELLANT

SZFFW
SECOND APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

BRANSON J

DATE OF ORDER:

27 MAY 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed pursuant to s 25(2B)(bb)(i) of the Federal Court of Australia Act 1976 (Cth).

2.The appellants pay the respondent’s costs fixed in the sum of $1800.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 535 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZFFV
FIRST APPELLANT

SZFFW
SECOND APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:	BRANSON J
DATE:	27 MAY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of the Federal Magistrates Court delivered by Federal Magistrate Driver ex tempore on 21 March 2005.  His Honour dismissed an application by the appellants for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’).  The decision of the Tribunal had affirmed an earlier decision of a delegate of the respondent not to grant the appellants protection visas.

2. Only the male appellant has attended Court today.  He has advised the Court that he has authority to speak on behalf of his wife.  Only the male appellant made claims under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees.  The female appellant based her claim to be entitled to a protection visa on her membership of her husband’s family.  I will refer to the male appellant hereafter as ‘the appellant’.

3. The appellant is a citizen of India.  He has claimed that he is a political activist with involvement with the BJP, and a religious extremist.  He has claimed that he was targeted by the Congress Party and by Muslim fundamentalists.  The appellant did not impress the Tribunal as a reliable witness whose assertions might be accepted at face value.  The Tribunal noted that he had travelled from India to New Zealand and had remained in that country for a year trying to set up a business without applying for asylum.  The Tribunal rejected his assertion that he was not aware that he could claim asylum in New Zealand.  It concluded that his failure to do so indicated a lack of subjective fear of persecution in India.  It formed the view that he had made up his claims in order to enhance his application for a protection visa.

4. The Tribunal found that the appellant had not been harassed or harmed for a Convention reason in India.  It further concluded that as a Hindu and a supporter of the BJP from Gudjerat he did not have a well-founded fear of persecution in India.  The Tribunal noted that India is a parliamentary democracy with an independent judiciary and that it has a nationwide police service to which the appellant could look for protection.  It further noted that Hinduism is the majority religion in India.

5. The learned Federal Magistrate was unable to identify any jurisdictional error affecting the decision of the Tribunal.  His Honour dismissed the application for judicial review of the decision of the Tribunal.

6. The notice of appeal filed by the appellants is an unhelpful document.  The first ground asserts that the Federal Magistrate:

   ‘…failed to find error of law, Jurisdictional error, Procedural fairness and relief under Section 39 B of the Judiciary Act 1903.’

   No particulars of these complaints are given.  The second ground is worded in a way frequently seen on appeals of this nature.  It commences by asserting:

   ‘The grounds and relief is very much similar with a recent High Court Judgment ‑ Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal ….’

   No particulars of the alleged similarity are given. Two further grounds are concerned with the merits of the appellant’s claim to be entitled to a protection visa. Another complains, I interpolate wrongly, that the Federal Magistrate did not consider in the appellant’s favour that s 474 of the Migration Act1958 (Cth) has been held by the High Court to be ‘ineffective’.  The final two purported grounds are constituted by references to, in the one case, a decision of the High Court and in the other a decision of the Federal Court.

7. On 26 April 2005 I ordered the appellants to file and serve an amended notice of appeal by 5 May 2005.  They have not filed an amended notice of appeal.  I also ordered them to file and serve a written outline of submissions five working days prior to this hearing.  They have not done so. 

8. The Minister has invited me to dismiss the appeal because of the appellants’ failure to comply with the directions of the Court.  Before acceding to the Minister’s request I invited the appellant to let me know whether there were any submissions he wished to put to the Court in support of the appeal.

9. The appellant has not put forward any submissions in support of the appeal.  He has indicated that were he given further time he might be able to obtain legal advice.  I am not satisfied that this is so.  He has also indicated that were he given further time he might be able to obtain further evidence in support of his claim to be entitled to a protection visa.  This is, of course, not a matter that I can take into account on this appeal.

10. In the circumstances, I have considered it appropriate to accede to the request of the Minister. The appeal is dismissed under s 25(2B)(bb)(i) of the Federal Court of Australia Act 1976 (Cth) because of the appellants’ failure to comply with the Court’s directions.

11. The appellants are to pay the respondent’s costs fixed in the sum of $1800.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:            6 June 2005

Counsel for the Appellants:	The Appellant appeared in person
Counsel for the Respondent:	A Markus
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	27 May 2005
Date of Judgment:	27 May 2005