SZKFT v Minister for Immigration and Citizenship

[2007] FCA 1854

FEDERAL COURT OF AUSTRALIA

SZKFT v Minister for Immigration and Citizenship [2007] FCA 1854

SZKFT v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1276 OF 2007

MADGWICK J
13 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1276 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKFT
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MADGWICK J
DATE OF ORDER:	13 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the costs of the first respondent assessed in the sum of $2,400.

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 1276 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKFT
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MADGWICK J
DATE:	13 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of the Federal Magistrates Court whereby Federal Magistrate Cameron declined to give relief on an application for judicial review of a decision adverse to the appellant of the Refugee Review Tribunal (“the Tribunal”). 

2. The appellant is a national of India who appears to have fallen foul of criminal elements.  He complained to the police who warned him against proceeding with the complaint because of the possibility of reprisals by the criminals.  He again tried to complain and his shop was burned down.  He approached “the Home Minister” to complain about the lack of action by the police and a senior police officer then requested that he sign a statement saying that the fire at the shop was accidental.  When he refused, he was beaten.  He complained in writing about that to a senior police officer.  He was again pressured not to proceed with that complaint and again harassed, apparently on a daily basis, by police.  His claim was that, if he returned to India, he would be assassinated or framed on false allegations by the criminals who had originally maltreated him. 

3. The Tribunal accepted that the appellant might reasonably fear persecution from the criminals or the police, but could not find that an essential and significant reason the appellant might be targeted for harm had any Convention link.  In any case, the Tribunal found that the appellant could reasonably relocate in India to avoid harm.  The Tribunal member instructed himself from the relevant authorities about when exposure of corruption might be regarded as manifestation of political opinion, but concluded that any motivation on the part of the police to harm the appellant was solely personal, as was any such motivation by the criminal elements concerned. 

4. These matters were canvassed before the learned Federal Magistrate, who dealt with them, in my opinion, unexceptionably. The notice of appeal to this Court in substance asserts error on the part of the learned Federal Magistrate, firstly, in relation to an alleged breach of s 424A of the Migration Act1958 (Cth) and, secondly, on the question of relocation.

5. It is clear that the Tribunal’s conclusions were either based on information given to it by the appellant or on material in the nature of “country information” merely about classes of persons, so that the exceptions contained in subs (3) of s 424A deprive the section of any helpful application to the appellant’s case. Nor did the appellant’s written submissions help his case. There was no error by the learned Federal Magistrate in this regard.

6. In relation to the issue of relocation, the Tribunal member appears to have considered only the practicabilities of whether the appellant might relocate from his home town and did not apply any moral standard to the subject.  Thus he seems to have applied the test correctly on the bases approved in SZATV v MinisterforImmigration & Citizenship (2007) 237 ALR 634. There was no error on the part of the learned Federal Magistrate in failing to intervene on this ground.

7. Regrettably, it seems that the appellant’s case simply does not support a conclusion that he is a refugee within the meaning of the relevant Convention and the finding that he could relocate within India to avoid any harm is a legally-unassailable factual conclusion by the Tribunal. 

8. It follows that the appeal must fail and will be dismissed.  The appellant is to pay the Minister’s costs assessed in the sum of $2,400.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:        28 November 2007

For the Appellant:	The Appellant appeared in person
Counsel for the Respondent:	H P T Bevan
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	13 November 2007
Date of Judgment:	13 November 2007