SZLMT v Minister for Immigration and Citizenship

[2008] FCA 1231

FEDERAL COURT OF AUSTRALIA

SZLMT v Minister for Immigration & Citizenship [2008] FCA 1231

Migration Act 1958 s 424A

SZLMT v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 739 OF 2008

MARSHALL J
13 AUGUST 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 739 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLMT
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	13 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 $1,400.

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 739 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLMT
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE:	13 AUGUST 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant appeals from a judgment of the Federal Magistrates Court which dismissed an 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 him a protection visa.

2. The appellant is a citizen of India. He told the Tribunal that he left India and feared returning because of threats against him by a property developer should the appellant’s father refuse to sell a parcel of land to the developer. The Tribunal noted that the appellant acknowledged that the developer had commercial motives. The appellant raised the different political affiliations of his father and the developer but did not dispute that those affiliations and/or inclinations were incidental to the commercial dispute. The Tribunal found the appellant’s fear of persecution not to be for a reason stated in the Refugees Convention. It rejected his application.

3. Before the Court below the appellant relied on s 424A of the Migration Act 1958. The Tribunal did not rely on information the subject of that section to reject the appellant’s claims. It specifically accepted the appellant’s claims but said they did not disclose a fear of persecution for a reason referable to the Refugees Convention.

4. The Federal Magistrate also rejected a submission that the Tribunal erred by finding that the appellant did not face persecution on account of his membership of a particular social group. The reason for that finding was that the claimed fear did not arise for a Convention reason. Another ground relied on and rejected was a claim that the Tribunal did not consider integers central to the appellant’s claims, on account of the appellant being stressed in appearing before the Tribunal. The appellant also claimed that the Tribunal failed to consider the issue of the adequacy of state protection in India. The Court noted that the Tribunal had referred to a lack of evidence of the inability of the appellant to avail himself of State protection. In any event that issue is not relevant where the claims of the appellant have been accepted but do not have a Convention nexus.

5. In his grounds of appeal the appellant referred to error of law, jurisdictional error and procedural fairness in general terms and without substantiation. He also alleged that the Tribunal’s decision was unjust.

6. In addition the appellant referred, in his notice of appeal, to:

   ·a failure to make a finding as to the extent of persecution suffered by him;

   ·a failure to give the real reasons for finding the persecution was not for a Convention reason;

   ·a failure to record material facts for the reasons for decision.

   The appellant did not support any of these grounds by oral submissions this morning.

7. The Tribunal did make a finding about the extent of the claimed persecution by accepting that it occurred. It did give the real reason for claiming the persecution was not Convention related by saying that it sprung from commercial motives. The Tribunal did record the material facts in its decision. They were the facts raised by the appellant.

8. The appeal is without merit. It is dismissed with costs.

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

Associate:

Dated:        13 August 2008

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

Date of Hearing:	13 August 2008
Date of Judgment:	13 August 2008