SZJQD v Minister for Immigration and Citizenship

[2007] FCA 746

FEDERAL COURT OF AUSTRALIA

SZJQD v Minister for Immigration and Citizenship [2007] FCA 746

SZJQD AND SZJQE v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 309 OF 2007

SPENDER ACJ
11 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 309 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJQD
First Applicant

SZJQE
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SPENDER ACJ
DATE OF ORDER:	11 MAY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The first applicant pay the costs of the first respondent, fixed in the sum of $1,000.

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 309 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJQD
First Applicant

SZJQE
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SPENDER ACJ
DATE:	11 MAY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant arrived in Australia on 6 April 2006.  He applied for a Protection Visa on 4 May 2006 which was refused by a delegate of the Minister of 17 June 2006. 

2. He applied for review by the Refugee Review Tribunal (the Tribunal) on 12 July 2006. The Tribunal by its decision of 17 October 2006 made various findings and concluded that it was satisfied that his fear of persecution in India for the reason of his political opinion, religion, or any other Convention reason, was not well founded.  The Tribunal found that threats from creditors were solely for his inability to pay debts, and not for a Convention reason.  Based partly on the fact that the applicant continued to live in the same address and ran a business from the same address, the Tribunal was not satisfied that the applicant seriously felt threatened, or that those making the threats seriously intended to act upon them.

3. The Tribunal concluded that there was no evidence from country information to indicate that Bharatiya Janata Party (BJP) members and supporters were being persecuted in Gagarra. 

4. The Tribunal found that it was not satisfied on the evidence that he would suffer harm for reason of his membership of and support of the BJP if he were to return to Gagarra now or in the reasonably foreseeable future.

5. The Tribunal also found that it was not satisfied that the applicant would not be able to and would be prevented from resuming his business activities in India.  It did not accept as credible or plausible that any personal animosity would result in Muslims in his area hunting and finding him and his family anywhere in India.  The Tribunal did not accept that he would be targeted by political opponents nationally.

6. An application to the Federal Magistrates Court on 6 November 2006 was dismissed on 6 February 2007, pursuant to Rule 44.12(1)(a) of the Federal Magistrates Court Rules, the Court holding that the application did not raise an arguable case for the relief claimed.

7. The only ground of the application for leave to this Court is that the Federal Magistrate failed to find that the decision of the Tribunal was in breach of s 424A of the Migration Act 1958 (Cth).

8. In oral submissions today, the applicant seems to be claiming that the Tribunal did not take into account documents which he supplied to the Tribunal. The applicant fails to appreciate that the obligation in s 424A has two specific exceptions, exceptions that apply in his case. The first of them is contained in s 424A(3)(b) which provides:

   [Section 424A]  does not apply to information that the applicant gave for the purpose of the application.

9. Secondly, insofar as any complaint of a breach of s 424A relates to general country information, the effect of ss (3)(a) is that the s 424A obligation does not apply to information that is not specifically about the applicant or other person is just about a class of persons of which the applicant or other person is a member.

10. Smith FM was right to conclude that the applicant’s contention of a breach of s 424A(1) was misconceived. Since that is the only ground in the applicant’s draft Notice of Appeal, it follows that his application for leave to appeal should be dismissed with costs.

11. The second applicant is the wife of the male applicant.  The wife has no claims of her own and relies on membership of her husband’s family unit.  For these reasons the applications should be dismissed with costs.

12. Each application is dismissed. 

13. I order that in the case of the male applicant’s application, the application be dismissed with costs, which I fix in the sum of $1,000.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Acting Chief Justice Spender.

Associate:

Dated:        16 May 2007

The applicant appeared in person
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	11 May 2007
Date of Judgment:	11 May 2007