SZGIM v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1332

FEDERAL COURT OF AUSTRALIA

SZGIM v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1332

MIGRATION – application for leave to appeal from Federal Magistrates Court – no point of principle

SZGIM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1533 of 2005

TAMBERLIN J
SYDNEY
19 SEPTEMBER 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1533 OF 2005

BETWEEN:	SZGIM APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	19 SEPTEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal is dismissed with costs.

2.The costs of the appeal are fixed in the sum of $400.

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 1533 OF 2005

BETWEEN:	SZGIM APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	19 SEPTEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from a judgment of Federal Magistrate Scarlett delivered on 11 August 2005.  There is an affidavit supporting the application, which states that the Magistrate did not properly consider the judicial review application and the applicant did not get an opportunity to file his written submissions with the new grounds.

2. When the matter came on for hearing before me, the applicant appeared in person with the aid of an interpreter and explained that the matter that concerned him principally was that, if he were returned to India, he would be in danger for his life and would suffer persecution.  He said that he was willing to go back to India if there was no reasonable basis for any fear of persecution and that elections would be held in India in May 2006.  He says that he would be prepared to go back to India if the government was changed and, presumably, this is on the basis that a change of government would, to his mind, substantially remove his subjective fear of persecution.

3. The applicant has said nothing before me today which would lead me to conclude that there is any error in the approach taken by the Magistrate in this matter or in the reasons for decision of the Refugee Review Tribunal.  I appreciate that the applicant has a subjective fear of returning to India, however, the question before me is whether that fear is based on reasonable grounds.

4. In reaching its decision in this matter, the Tribunal had regard to country information provided by the applicant as well as independent country information and was satisfied there was no real chance that the applicant would experience serious harm amounting to persecution for a Convention reason if he was returned to India.

5. The Tribunal considered the claims of the appellant in some detail and there is no substance in the applicant’s submission that there was no examination of his case by the Tribunal.  It was simply a case where the Tribunal did not accept, in a number of significant respects, the claims made by the applicant.  It is not for this Court to re-investigate the merits of the application for a protection visa nor to defer the return of the applicant to India pending the possible outcome of elections in that country.  The findings that have been made by the Tribunal indicate that, at the present time, the applicant has not made out a case that, if returned to India in the near future, there will be any reasonable prospect of persecution. 

6. Accordingly, in these circumstances, the order of the court is that the application for leave to appeal is dismissed with costs and the costs of the appeal should be fixed in the sum of $400

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin

Associate:

Dated:            28 September 2005

The Applicant appeared in person with the assistance of an interpreter
Counsel for the Respondent:	???
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	19 September 2005
Date of Judgment:	19 September 2005