SZLPD v Minister for Immigration and Citizenship

[2008] FCA 1763

FEDERAL COURT OF AUSTRALIA

SZLPD v Minister for Immigration & Citizenship [2008] FCA 1763

Migration Act 1958 (Cth) s 424A

SZLPD v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1273 of 2008

MARSHALL J
24 NOVEMBER 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1273 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLPD
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	24 NOVEMBER 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant pay the first respondent’s costs of the appeal, to be taxed if not agreed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1273 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLPD
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE:	24 NOVEMBER 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant 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 the appellant a protection visa.

2. The appellant is a citizen of India. He came to Australia as part of a touring party of indoor cricketers from Rajasthan. He told the delegate that he feared persecution if returned to India because he has no civil or political freedom in India and suffers from poverty and starvation as a member of a particular social group of farmers from Rajasthan. He is of the Mali caste.

3. The appellant appeared before the Tribunal and gave oral evidence. He told the Tribunal that he was not a cricketer but had paid to be included in the group, borrowing money against the security of his family’s house and land. He said he had to leave India because of a land dispute with members of the caste Rajput, who claimed part of his family’s land. He claimed that four or five months before he left India he was charged with kidnapping one of the Rajput boys and beaten by police. He said the case was ongoing and that Rajputs were in power in Rajasthan.

4. The appellant claimed he would be killed by Rajputs if returned to India because of the land dispute. He said that Rajputs were singling him out because of his caste.

5. The Tribunal put independent country information to him which advised that India had an independent judiciary to which he could have recourse. The appellant said the information in his original application was not true, due to translation problems. He also said that he faced a recent charge in India of abusing a member of one of the Scheduled Castes.

6. The Tribunal accepted that the appellant:

   ·left India because of a land dispute with Rajputs which is the subject of an unresolved Court case;

   ·was beaten up by police after being accused of kidnapping; and

   ·was the subject of a recent fabricated case made against him.

7. Nonetheless, the Tribunal considered that the appellant did not qualify as a refugee as the essential and significant reason for his persecution arises out of a land dispute which is a reason divorced from those contained in the Refugees Convention. The Tribunal found that the corruption or maladministration at the local level which resulted in charges being laid against the appellant were not as a result of any systematic discriminatory implementation of the law.

8. The Tribunal was not satisfied that the appellant had a well founded fear of persecution for a Convention ground.

9. The appellant sought judicial review of that decision in the Court below. He did not particularise his grounds. The grounds referred to denial of proper application of the law and of natural justice. The Court below found no jurisdictional error in the decision of the Tribunal.

10. The Federal Magistrate said that the Tribunal correctly referred to the law concerning the prerequisites for establishing a failure of state protection and correctly found that any inadequate State protection was not for a Convention reason. She also said that there had been no failure to comply with s 424A of the Migration Act 1958 (Cth) or the requirements of natural justice. Nor was there any failure “to follow due procedure”.

11. The grounds relied on below were repeated in the notice of appeal. No basis was put orally by the appellant to establish these grounds. I have examined the reasons for decision of the Tribunal and the reasons for judgment of her Honour. The former is free of jurisdictional error and the latter is free of appealable error. The appeal is 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 Marshall.

Associate:

Dated:        25 November 2008

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

Date of Hearing:	24 November 2008
Date of Judgment:	24 November 2008