SZLKN v Minister for Immigration and Citizenship

[2008] FCA 1215

FEDERAL COURT OF AUSTRALIA

SZLKN v Minister for Immigration and Citizenship [2008] FCA 1215

Migration Act 1958 (Cth) ss 424A, 425

SZLKN v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 740 OF 2008

MARSHALL J
12 AUGUST 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 740 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLKN
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 at $1,500.

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 740 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLKN
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, who is a citizen of India, appeals from a judgment of the Federal Magistrates Court 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 to grant the appellant a protection visa.

2. In his application for a protection visa the appellant said that he needed to leave India because life is “very hard” with “no job, no opportunity”. He claimed to be a farmer in India.

3. Before the Tribunal the appellant submitted that his refugee claims were not correct. He said that his lawyer had written them. He told the Tribunal that he had been attacked in a market in India and that his life was in danger, so he moved around frequently because he feared the Jat community. He told the Tribunal that he had never been a farmer. He said his father had stopped farming after attacks on the family in 2005. He said the attack on him at the market was a reprisal for standing against a Bharatiya Janata Party candidate in student elections. He also said that at the time he had been involved in a committee which looked after the wellbeing of people from his Muslim caste known as Kayamkhani. The appellant said that if he relocated out of his local area to a big city such as Jaipur or some other big city his attackers would still find him.

4. The Tribunal considered that the appellant could find safety in any number of the large cities in India. In any event it considered his claims to have been exaggerated. The Tribunal did not consider that there was a real chance that the appellant would be persecuted on account of his Muslim religion if returned to India. The Federal Magistrates Court dealt with two claimed grounds of review. The first concerned a complaint that the Tribunal refused his request to have more time to put more documents before it. The second concerned a claim that the Tribunal breached s 424A of the Migration Act 1958 (Cth). In addition the appellant alleged that the Tribunal had not listened properly to his claims.

5. The Court below noted that the Tribunal did not refuse the appellant time to produce documents but said that it did not need the documents for the purposes of its decision. The Tribunal declined the appellant’s offer to produce documents to it. The documents concerned whether the appellant was attacked in 2005. The Tribunal assumed such an attack but found that the appellant could relocate so as not to be in danger of further attacks.

6. No true s 424A issue arose before the Court below, the appellant said he wished to produce documents to the Tribunal to show his life was at risk in India. Those documents would disclose, it was contended, that he told a magistrate in India that his life was at risk. The topic of a magistrate being told any such fact was not relied on by the Tribunal and appears not to have even been raised before it, as the Federal Magistrate observed. In any event the material would come within the exception in s 424A(1) as being specifically about the appellant.

7. The Court below also observed that the Tribunal put to the appellant the question of his possible relocation within India and invited his comments on that issue. It held that no breach of s 425 had occurred. Finally, it considered that there was no basis to the contention that the Tribunal had not listened properly to the appellant’s claims.

8. On the hearing of the appeal this afternoon the appellant did not develop the grounds relied upon in his notice of appeal but took issue with the merits of the Tribunal’s decision concerning his ability to relocate. That was a question of fact for the Tribunal to determine. The grounds referred to in his notice of appeal are “jurisdictional error”, “breach of procedure” and “denial of natural justice”. No oral submissions of the appellant were developed about those matters.

9. I have carefully considered the reasons for decision of the Tribunal and the reasons for judgment of the Court below. I can discern no jurisdictional error in the former and no appealable error in the latter.

10. The appeal is dismissed with costs.  

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:        12 August 2008

The Appellant appeared in person.
Solicitor for the First Respondent:	Ms B Anniwell for Australian Government Solicitor

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