SZIJD v Minister for Immigration and Citizenship

[2007] FCA 1853

FEDERAL COURT OF AUSTRALIA

SZIJD v Minister for Immigration and Citizenship [2007]  FCA 1853

SZIJD v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1636 OF 2007

MADGWICK J
12 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1636 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIJD
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MADGWICK J
DATE OF ORDER:	12 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs of the appeal assessed in the sum of $3,000.

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 1636 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIJD
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MADGWICK J
DATE:	12 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of the Federal Magistrates Court given by Lloyd-Jones FM declining an application for judicial review of a decision adverse to the appellant of the Refugee Review Tribunal (“the Tribunal”).  The Tribunal dealt with the appellant’s claim to be a national of India and to fear persecution by reason of his being a Muslim and by reason of his being an active member of the Indian Union Muslim League (“IUML”).  The appellant’s claim was that the political party known as the BJP had injured and threatened him because of his membership of the IUML, the BJP, being a pro-Hindu party and, in the area in which he lived, allied with Hindu fanatics and thugs. 

2. The Tribunal, for reasons given, did not believe that the appellant was an active member of the IUML although it conceded the possibility that he might be an ordinary member of that party.  Likewise, the Tribunal accepted that he might have been hit during a political rally by a “bulb of acid” thrown at the crowd.  However, there was no information as to who had thrown the bulb and the appellant did not claim to have been specifically targeted.  The Tribunal did not accept that the appellant would be of any interest to BJP or other Hindu fanatics and considered that his having returned to India six or seven times in the eight years he was resident in the United Arab Emirates (“UAE”) and the fact that he had not sought refugee status there, was inconsistent with his claim to fear persecution.  Thus the Tribunal, in effect, denied that the appellant had a well founded fear of persecution.

3. In any case, the Tribunal did not accept that he would be denied state protection by reason of his being a Muslim or his limited involvement in the IUML.  Further, the Tribunal considered he could reasonably relocate elsewhere in India, away from the area where he may have had some trouble. 

4. The appellant’s application to the Federal Magistrates Court raised a single ground, namely that the Tribunal had breached s 424A of the Migration Act  1958 (Cth) (“the Act”). The information that the Tribunal was allegedly required to give to the appellant, in writing, was said to be information sourced from the appellant’s passport indicating that the appellant had visited the UAE on seven occasions before 2000, and an alleged inconsistency between that information and the appellant’s claims that the BJP had destroyed his property, threatened him and ordered him to leave the area.

5. The learned Federal Magistrate dealt with the matter on the basis that the Tribunal’s findings were open to it because of information given by the appellant at the hearing and that information from passports was given by the appellant for the purposes of the hearing.  His Honour, applied NBKT v Minister for Immigration and Multicultural Affairs 156 FCR 419 at [57]-[61] and held that there was no relevant inconsistency between information obtained from the passport and otherwise given by the appellant. I see no error in the way the learned Federal Magistrate dealt with the matter.

6. The appellant’s notice of appeal to this Court is another example of what might be called “a word processor special”. He does not descend to any specific criticism of the learned Federal Magistrate’s reasoning on the case that was presented to him. It makes generalised and inapposite assertions, including that the appellant’s grounds of appeal are “very similar” to those in a case mentioned. The only reference to s 424A amounts to this: pursuant to the decision in SAAP v Minister for Immigration &
   
   

   Multicultural and Indigenous Affairs (2005) 228 CLR 294, the Tribunal was required to put information to the appellant arising from the hearing prior to making its decision.

7. Most of the grounds in the notice of appeal were not raised before the learned Federal Magistrate in any way, shape or form.  There is no reason for this Court to grant leave to rely on material not raised before the learned Federal Magistrate.  The appellant indicated to me that he had the benefit of a solicitor in considering the submissions of the first respondent filed in this Court. 

8. His own written submission is quite unhelpful.  His oral submissions suggest that the Tribunal misunderstood the facts of his claim, but it is clear that the Tribunal went to some trouble to try to sort out the appellant’s claims, which had appeared to shift.  When I sought to clarify the appellant’s submissions about this matter, with the aid of a competent interpreter, the appellant’s claims again shifted.

9. There is nothing in what has been put by the appellant in writing, or orally, to warrant the success of his appeal.  I also agree with the more specific criticisms of the various grounds of appeal offered by Ms Sirtes in her written submissions. 

10. The appeal will be dismissed with costs.  Costs will be assessed in the sum of $3,000.

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

Associate:

Dated:        27 November 2007

For the Appellant:	The appellant appeared in person
Counsel for the Respondent:	Ms S Sirtes
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	12 November 2007
Date of Judgment:	12 November 2007