SZJJJ v Minister for Immigration and Citizenship

[2007] FCA 775

FEDERAL COURT OF AUSTRALIA

SZJJJ v Minister for Immigration and Citizenship [2007] FCA 775

SZJJJ AND SZJJK v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 486 OF 2007

STONE J
21 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 486 OF 2007

BETWEEN:

SZJJJ
First Applicant

SZJJK
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	STONE J
DATE OF ORDER:	21 MAY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed.

2.The applicants pay the costs of the first respondent.

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 486 OF 2007

BETWEEN:

SZJJJ
First Applicant

SZJJK
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	STONE J
DATE:	21 MAY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application made under s 24 (1A) of the Federal Court of Australia Act 1976 (Cth) for leave to appeal from a decision of the Federal Magistrates Court; [2007] FMCA 467.

2. The applicants are a married couple who arrived in Australia from India in January 2006, and lodged an application for a Protection (Class XA) visa in the same month.  The wife made no claims independent of those of her husband and the fate of her application depends upon that of her husband.  For that reason I shall refer to the husband as the applicant.

3. The applicant claimed that he actively supported Bhartiya Janata Party (BJP) Members of Parliament in his home state of Gujarat, and particularly that he assisted them in campaigning for the October 2005 elections.  He claimed that because of this support he was physically attacked by Congress Party supporters and that when he complained to the police, they also beat him and detained him for several days.

4. The application was rejected in turn by a delegate of the Minister and the Refugee Review Tribunal.  The Tribunal gave short reasons for finding that the husband’s evidence was unconvincing and that his claims were fabricated.  The Tribunal did not accept that a person with the close associations that the applicant claimed to have had with the BJP would be unable to ensure protection from his political opponents, especially as the BJP was in government in Gujarat.  Moreover a letter from a BJP parliamentarian provided by the applicant referred to his support for the BJP but did not mention any problems with Congress Party members.  The Tribunal further pointed to the failure of the applicant husband to apply for refugee protection when he visited the United Kingdom in July 2005.  

5. The Tribunal also rejected the applicant’s claim that if he moved to another part of India he would be sought out by his Congress Party opponents.  The Tribunal noted that, although the applicant’s advisor raised the question of caste, the applicant did not raise this issue and had not provided any evidence in relation to it.  The Tribunal was therefore not satisfied that caste was an issue.  

6. In his amended application to the Federal Magistrates Court for review of the Tribunal’s decision the applicant set out two grounds of relief; namely that the Tribunal failed to evaluate the claims of the applicant and did not properly assess whether the applicant faced a real chance of serious harm if he were returned to India. On 20 March 2007 the Federal Magistrate rejected both grounds as raising no arguable case for the relief claimed and dismissed the application under r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

7. His Honour’s order was interlocutory (see r 44.12 (2) of the Federal Magistrates Court Rules) and therefore the applicants require leave of this Court to appeal from that order; s 24(1A) Federal Court of Australia Act 1976 (Cth). Leave will only be granted if an appeal would have some prospect of success: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. The applicants’ draft notice of appeal sets out three grounds. The first alleges that the Federal Magistrate erred in law in dismissing the application under r 44.12(1)(a). The other two grounds essentially repeat those contained in the amended application before the Federal Magistrates Court.

8. At the hearing before me, the applicant did not make any submissions, either written or oral, other than to say that he relied on the submissions that he had made before the Federal Magistrates Court.  He confirmed that his claim on appeal would be that the Federal Magistrate had erred in not accepting his submissions as to the alleged errors of the Tribunal. 

9. In my view the Federal Magistrate was correct in finding that the application before him raised no arguable case.  There is no evidence that the Tribunal failed to give proper consideration to the claims made by the applicant.  On the evidence before it the findings of fact made by the Tribunal were open to it and I can discern no error in its reasons.  It follows that I find no error in the Federal Magistrate dismissing the application before him and that I must dismiss the present application for leave to appeal.  

10. Accordingly, the orders of the Court will be that the application for leave to appeal be 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 Stone.

Associate:

Dated:        21 May 2007

The applicant appeared in person, assisted by an interpreter.
Solicitor for the first respondent:	Australian Government Solicitor
Date of Hearing:	21 May 2007
Date of Judgment:	21 May 2007