SZJOQ v Minister for Immigration and Citizenship

[2008] FCA 748

FEDERAL COURT OF AUSTRALIA

SZJOQ v Minister for Immigration and Citizenship [2008] FCA 748

Migration Act 1958 (Cth) s 424A

SZJOQ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 2480 OF 2007

TAMBERLIN J
5 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2480 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZJOQ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TAMBERLIN J
DATE OF ORDER:	5 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs.

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 2480 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZJOQ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TAMBERLIN J
DATE:	5 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of Barnes FM dismissing an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) which was handed down on 5 October 2006 and affirmed a decision not to grant the applicant a protection visa.  When the matter was called on for hearing, the appellant appeared with an interpreter and when asked what submissions he wished to make, he indicated he did not wish to make any oral submissions but relied on a written document setting out an outline of the appellant’s submissions.  I have carefully considered the decision of the Tribunal and also the reasons of the Federal Magistrate below.  The decision largely turns on questions of fact which are not within the jurisdiction of this Court or of the Federal Magistrates Court to correct.  These are matters for the Tribunal.

2. Insofar as the written submissions put before the Court by the appellant refer to grounds of appeal, I am not satisfied that anything has been shown in the decision of the Tribunal which would warrant judicial review.  Basically, the case turned on a finding that the Tribunal member was not persuaded, as a matter of fact, that the appellant or his family, if returned to India, would suffer persecution for a Convention reason.  The Tribunal’s reasons set out the basis on which the conclusion is reached that the claims of the appellant are not credible.  This finding turns largely on the factual conclusion reached by the Tribunal that the appellant did not have a sufficiently high profile to have been targeted.

3. The Tribunal did not accept – and this is also a question of fact – that the appellant faced any risk of persecution because of membership of what was known as the Patel family or clan.  On the evidence, the Tribunal concluded that it wasn’t satisfied that the appellant was of any adverse interest to the “Dawood Gang”.  The Tribunal did not accept the appellant’s claim that he was forced to witness a murder because it considered that in such an event, the appellant would not have been allowed to go free.  This, it was said, was a matter of practical reasoning.  Independently of the question of whether there was a sufficient degree of persecution or harassment (in respect of which the Tribunal found in the negative), the Tribunal found that the appellant could reasonably be expected to relocate with his family to other parts of India.  It rejected a submission that in a large city like Mumbai, which is predominantly Hindu, the Dawood Gang would be likely to locate and persecute him.  The Tribunal found that the appellant provided no credible or plausible basis for a suggestion that the gang would look for him throughout the whole of India simply because he at one stage allegedly drove a vehicle for their political opponents.

4. I cannot see on a careful reading of the reasons of the Tribunal any error of law.  In particular, I do not consider that there was any misapplication of the expression “a well founded fear of persecution”.  The Tribunal clearly took into account the cumulative effects of the separate incidents by having regard to and discussing the evidence as a whole.  The Tribunal gave reasonable grounds for rejecting the credibility of the appellant’s evidence and the independent country information used was of a general nature, not specifically directed to the appellant or his particular circumstances or those of his family.  There is no basis for suggesting that the Tribunal selected especially adverse independent country information; rather, it simply operated on the general information before it.  Indeed, a number of findings favourable to the appellant’s arguments were made by the Tribunal.

5. I am not persuaded that there was any breach of s 424A of the Migration Act 1958 (Cth) in relation to the furnishing of information. In all the circumstances and for the above reasons, I am not persuaded that there was any error of law in the decision of the Federal Magistrate or in the approach, findings and reasons taken by the Tribunal. I therefore dismiss the appeal with costs.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:        22 May 2008

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondents:	Mr M. Cleary
Solicitor for the Respondents:	Clayton Utz

Date of Hearing:	5 May 2008
Date of Judgment:	5 May 2008