SZGXP v Minister for Immigration and Citizenship

[2007] FCA 270

FEDERAL COURT OF AUSTRALIA

SZGXP v Minister for Immigration & Citizenship [2007] FCA 270

SZGXP v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 2494 OF 2006

MARSHALL J
5 MARCH 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2494 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGXP
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE OF ORDERS:	5 MARCH 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The name of the first respondent is amended to ‘Minister for Immigration and Citizenship’.

2.The appeal is dismissed.

3.The appellant pay the first respondent’s costs of the appeal.

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 2494 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGXP
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE:	5 MARCH 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant appeals from a judgment of a Federal Magistrate concerning his application for judicial review of a decision of the Refugee Review Tribunal.  The Tribunal had affirmed a decision of a delegate of the first respondent Minister not to grant a protection visa to the appellant.

2. The appellant is a citizen of India. He claimed that he had a genuine fear of persecution on account of his political opinion if returned to India in the reasonably foreseeable future.  He claimed to be a supporter of the Akali Dal party and to have provided security to party leaders, including Mr Ranjit Singh Walia - a former member of the Punjab State Parliament.  The appellant claimed that he was beaten when travelling with Mr Walia.  He also claimed that he was beaten when working as a security guard at the State Bank of India and that this beating was related to his connection with Mr Walia.  He further claimed that Punjabi police harassed him over his involvement with Mr Walia.

3. The Tribunal accepted that the appellant was physically harmed by members of another party when working for Mr Walia but found that the harm occurred not on account of the appellant’s political opinion, but in the course of his work as a bodyguard and because of that work.

4. The Tribunal accepted that Punjabi police questioned the appellant about his employer’s activities.  It considered that the ‘harassment’ did not constitute harm of such severity as to constitute persecution.

5. The Tribunal accepted that robbers injured the appellant during an incident in the guard room at the bank where the appellant worked.  The Tribunal considered it implausible that the robbery of guns at the guard room was a secondary incident in an ambush on the appellant.  It considered the incident an example of the hazardous nature of the work of the appellant.

6. The Tribunal said that the incidents of harm experienced by the appellant did not occur ‘for any Convention reasons’.  It said that his claims about harm he feared in the future were not well founded.  It dismissed his application to be a refugee.

7. On appeal to the Federal Magistrates Court, the appellant submitted that the Tribunal failed to comply with s 424A of the Migration Act 1958 (Cth) (‘Act’). He also claimed that the decision was based on irrational and/or illogical reasoning and unwarranted assumptions.

8. The Federal Magistrate rejected both submissions. His Honour noted that the appellant did not specify what the information was that the Tribunal should have put to him in compliance with s 424A of the Act. His Honour considered the second submission to be an invitation to engage in merits review. His Honour dismissed the application for review.

9. In his notice of appeal, the appellant did not raise any issue concerning s 424A of the Act. The appellant raised one substantive ground of appeal. He claimed that the Tribunal erred in law by not finding that he faced a real chance of persecution because of his ‘position in a political party’.

10. The Tribunal determined that issue adversely to the appellant on the facts before it.  The ground of appeal does not identify any jurisdictional error.  Like the second ground rejected in the Court below, it is an attempt to cavil with the Tribunal’s determination of the merits of the review application.  The appeal is dismissed with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:        5 March 2007

The Appellant represented himself.
Counsel for the Respondent:	A Markus
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 March 2007
Date of Judgment:	5 March 2007