SZKHI v Minister for Immigration & Citizenship

[2007] FCA 1735

FEDERAL COURT OF AUSTRALIA

SZKHI v Minister for Immigration & Citizenship [2007] FCA 1735

SZKHI AND SZKHJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1310 OF 2007

STONE J
8 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1310 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKHI
First Appellant

SZKHJ
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	STONE J
DATE OF ORDER:	8 NOVEMBER 2007
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 1310 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKHI
First Appellant

SZKHJ
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	STONE J
DATE:	8 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of a Federal Magistrate dismissing the appellants’ application for judicial review of a decision of the Refugee Review Tribunal.  The Tribunal had rejected the appellants’ application for protection visas. 

2. The appellants, husband and wife, are citizens of India who arrived in Australia on 16 August 2006.  In their application for protection visas they claimed that they had a well-founded fear of persecution by reason of the activities of a Mr Ibrahimkutty who was the leader of the People’s Democratic Party and a man with close ties to Muslim extremists.  The appellants are Christians.  Only the husband made claims under the Convention; his wife relies on her membership of her husband’s family unit.

3. The dispute with Mr Ibrahimkutty originated over the appellants refusing to sell land they owned to Mr Ibrahimkutty.  The appellants also allege that, in addition to coveting their land, Mr Ibrahimkutty covets the wife.  The  Tribunal summarised the evidence of the wife as follows:

   The evidence of the applicant wife is that he wants the property but also seriously desires her.  He urged her to get rid of her husband and be with him.  The Tribunal accepts that this is source of the applicant’s problems.  Whilst the Tribunal accepts that Ibrahimkutty’s agents injured the applicant on one occasion with a rod it does not accept, on the basis of the applicant’s assertions alone that the police failed to investigate the matter as he has claimed and for the reason that Ibrahimkutty was more powerful because of political connections.

4. Despite considerable pressure placed on the appellants Mr Ibrahimkutty was unsuccessful on both counts.  The husband said that in the face of their continued refusal Mr Ibrahimkutty, through his associates, became violent.  The Tribunal accepted that the husband was beaten by Mr Ibrahimkutty’s men on one occasion and sustained facial injuries.  The Tribunal noted that the husband told the Tribunal that he reported the assault to the police.  He said that the police came and questioned him but they did not do anything about the matter.  At the hearing before the Tribunal the husband said that Ibrahimkutty pays bribes to people and that it is for this reason that the police and government support him.   

5. The Tribunal did not accept that the police took no action.  It pointed out that, on the husband’s evidence, the police came and questioned him about the incident and said:

   There is no plausible evidence and the Tribunal does not accept that the police withheld protection to the applicant because of his own political opinion or because of Ibrahimkutty’s political connections.

6. The Tribunal concluded that the harm suffered by the husband was not serious harm and it was not for a Convention reason.  The Tribunal’s view was:

   The essential and significant reason for the harm feared by the applicant is the greed of a local developer who has his sights on the applicant’s property and his wife.

7. The Tribunal concluded that the chance that the husband would suffer Convention-related persecution in the foreseeable future was remote and therefore his fear of persecution was not well-founded.

8. The Federal Magistrate considered three grounds of review put forward by the appellants.  Those grounds were:

   1.The Tribunal exceeded its jurisdiction and constructively failed to exercise its jurisdiction.

   2.Tribunal failed to give consideration to serious harm faced by the applicant.

   3.The Tribunal refused to accept and ignored the fact that he cannot re-locate to another state.

9. His Honour considered all three grounds of the application and gave detailed reasons for rejecting each ground.  In the notice of appeal filed in this court the appellants appeal from the whole of his Honour’s judgment on the sole ground that:

   His Honour erred in finding that the Refugee Review Tribunal had applied the correct test in determining whether there was effective state protection available to the Appellants in India.

10. In written submissions filed on behalf of the appellants their claims were not confined to the ground of appeal set out in the notice of appeal.  Given that they are representing themselves and are without legal assistance I have reviewed their submissions to see if it would be appropriate for the notice of appeal to be amended despite there being no application to do so.  In my view it would not be appropriate.  The points raised by the appellants in their written submissions are directed to the merits of the Tribunal’s decision and not to jurisdictional error.

11. As I have said the Tribunal’s reasons ultimately were based on the fact that the claims made by the appellants do not point to a Convention reason.  As such the Tribunal had no alternative but to dismiss the application.  The grounds argued before his Honour in the Federal Magistrates Court do not address this difficulty with the application and were properly rejected by his Honour.  The appeal before me must suffer the same fate.  There is no jurisdictional error to which the appellants have been able to point in the Tribunal’s reasons.  The Federal Magistrate did not see one and nor can I.  His Honour was correct to dismiss the application for review and therefore the appeal must be dismissed with costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:       14 November 2007

The Appellants appeared in person, assisted by an interpreter.
Counsel for the First Respondent:	S Lloyd
Solicitor for the First Respondent:	DLA Phillips Fox
Date of Hearing:	8 November 2007
Date of Judgment:	8 November 2007