SZLPV v Minister for Immigration and Citizenship

[2008] FCA 1778

FEDERAL COURT OF AUSTRALIA

SZLPV v Minister for Immigration & Citizenship [2008] FCA 1778

Migration Act 1958 (Cth) s 424A

SZLPV v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1535 OF 2008

MARSHALL J
26 NOVEMBER 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1535 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLPV
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	26 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.

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 1535 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLPV
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE:	26 NOVEMBER 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 refused an application for a review of a decision of a delegate of the then respondent Minister to decline to grant a protection visa to the appellant.

2. The appellant is a citizen of India. He claimed to fear persecution, if returned to India in the reasonably foreseeable future, on account of his religion and political opinion. The appellant is a Muslim from Kozhikod in Kerala state, where the majority of people are Hindus. He also claimed to be involved with the Indian Union of Muslim League (“IUML”) and/or its student wing and to be a member of the National Development Front (“NDF”).

3. The Tribunal accepted that the appellant is a Muslim. However, it found that he did not have any significant links or contact with the IUML and/or its student wing and the NDF. It did not accept that the appellant’s father had any significant political profile in India or that the appellant’s absences from Kerala were due to a fear of persecution. The Tribunal held that the appellant went to Singapore for work and not to flee from persecution, as he had claimed. The Tribunal also referred to the appellant’s voluntary return to Kozhikod from Singapore in discussing his claim for protection.

4. The Tribunal found that the appellant came to Australia as a genuine cricketer and sought protection whilst in this country as an afterthought and not in response to any persecution in India. It found him to be an unreliable witness whose claimed fear of persecution on the grounds of religion and political opinion was not well founded.

5. Before the Federal Magistrate the appellant claimed that the Tribunal breached s 424A of the Migration Act 1958 (Cth) by failing to put independent country information to him for comment. Her Honour dealt with that submission by referring to s 424A(3)(a) of the Act. The information was not information specifically about the appellant but was just about a class of persons of which the appellant is a member.

6. The independent country information referred to by the Tribunal was:

   ·a web site called  “Rediff” referring to political rivalries in Kerala;

   ·another website called “Organiser” referring to the activities of a political party in Kerala;

   ·“The India Express” referring to a student wing of a political party;

   ·a website of the student wing of that party; and

   ·the websites of the IUML and the NDF;

7. The Court below also relied on s 422B of the Act and emphasised that Div 4 of Pt 7 in which s 424A is found is an exhaustive statement of the Tribunal’s natural justice requirements. Her Honour found that the Tribunal did not fail to raise with the appellant any dispositive issues as required by s 425.

8. Her Honour also rejected other grounds relied on by the appellant before her. As none of those grounds are advanced on appeal, I will not deal with them. On appeal the appellant only relied on an alleged breach of s 424A. No basis was established for any breach of s 424A or any reason advanced why the provisions of s 424A(3)(a) did not apply.

9. The appeal is dismissed with costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:        26 November 2008

The Appellant appeared for himself.
Counsel for the Respondents:	Mr T Reilly
Solicitor for the Respondents:	Australian Government Solicitor

Date of Hearing:	26 November 2008
Date of Judgment:	26 November 2008