SZLKL v Minister for Immigration & Citizenship

[2008] FCA 1214

FEDERAL COURT OF AUSTRALIA

SZLKL v Minister for Immigration & Citizenship [2008] FCA 1214

Migration Act 1958 (Cth) s 424A

SZLKL v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 577 OF 2008

MARSHALL J
12 AUGUST 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 577 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLKL
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	12 AUGUST 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant pay the first respondent’s costs fixed in the sum of $1,700.

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 577 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLKL
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE:	12 AUGUST 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant appeals from a judgment of a Federal Magistrate which dismissed his application for judicial review of a decision of the Refugee Review Tribunal. The Tribunal had affirmed a decision of a delegate of the first respondent Minister to refuse the appellant a protection visa.

2. The appellant is a citizen of India. In his application for a protection visa he claimed to be a member of a particular social group consisting of farmers from Rajasthan and said that he “left India to survive from poverty and from terrible lifestyle.” The delegate found that the appellant did not face a real chance of persecution for a reason contained in the Refugees Convention if he was returned to India in the reasonably foreseeable future.

3. Before the Tribunal the appellant submitted that he would face persecution based on his religion if he was returned to India. He said his family had been subject to attacks from Hindus on account of their custodianship of a Muslim holy place. He also told the Tribunal that he was not a farmer but had not told the lawyer who assisted him in his application to the Department of that fact.

4. The Tribunal did not accept that the appellant feared for his life in India. It found that he would not be at risk from Hindus because of his hereditary role as custodian of a shrine. It noted that he continued to live in the relevant area of the alleged attacks for some years after he claimed they had occurred.

5. Before the Federal Magistrates Court the appellant relied on an alleged breach of s 424A of the Migration Act 1958 (Cth). He contended that the Tribunal did not invite him to respond to adverse information arising at the hearing and after the hearing.

6. The Court below noted that adverse factual findings made by the Tribunal against the appellant’s interest were all based on information provided by the appellant at the hearing and this would fall within the exception to s 424A(1) of the Act. The Court also observed that the appellant did not identify the adverse information on which his s 424A argument was founded.

7. The appellant’s notice of appeal refers to “jurisdictional error”, “breach of procedure” and “breach of s 424A”. The appellant did not identify how any of these grounds could be made out in his appearance before the Court this morning. He declined to make any oral submissions when invited to do so. I have carefully read the decision of the Tribunal and can discern no jurisdictional error in it. I have also carefully read the judgment of the Court below. It is free of appealable error. The appeal must be dismissed with costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:
Dated:        12 August 2008

The Appellant appears in person.
Solicitor for the First Respondent:	Ms D Watson for Australian Government Solicitor

Date of Hearing:	12 August 2008
Date of Judgment:	12 August 2008