SZLQS v Minister for Immigration and Citizenship

[2008] FCA 1823

FEDERAL COURT OF AUSTRALIA

SZLQS v Minister for Immigration and Citizenship [2008] FCA 1823

SZLQS and SZLQT v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 999 OF 2008

MOORE J
12 NOVEMBER 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 999 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLQS
First Appellant

SZLQT
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MOORE J
DATE OF ORDER:	12 NOVEMBER 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs, fixed in the sum of $2,200.  

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 999 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLQS
First Appellant

SZLQT
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MOORE J
DATE:	12 NOVEMBER 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of a Federal Magistrate of 2 July 2008 dismissing an application for judicial review of the decision of the Refugee Review Tribunal given on 11 October 2007: SZLQS v Minister for Immigration & Anor [2008] FMCA 972. The Tribunal affirmed a decision to refuse to grant the appellants, who are husband and wife, protection visas. The grounds raised before the Federal Magistrate were summarised and dealt with in his Honour’s reasons for judgment at para [38] and following. I think the Federal Magistrate’s reasoning was correct.

2. However, the issues raised before the Federal Magistrate and considered in his Honour's reasons raise issues that presuppose that the Tribunal accepted the appellants' account of their experiences in India.  Their claims for a protection visa were based, in relation to the husband, that he was bisexual and had and would be exposed to a risk of serious harm were he to return to India.  The wife’s claim had a different emphasis, namely, that she had been raped and sexually abused and again was likely to be exposed to that risk were she to return to India.  However, the Tribunal did not accept, as matter of fact, that the husband was bisexual.  Nor did it accept that the wife had experienced the rape and sexual abuse she claimed. 

3. In those circumstances, it is difficult to see how the issue sought to be raised in the appeal concerning the applicable test in determining whether there was a well-founded fear of persecution arises. I also note that the issue of whether the Tribunal erred in failing to characterise, or incorrectly characterising, a particular social group of which the husband may have been a member simply does not arise for consideration.  I have invited the first appellant, the husband, who is speaking for his wife, to explain what errors the Federal Magistrate made.  He has failed to do so and it seems fairly plain to me that he does not understand what is asserted in the notice of appeal, which he concedes was prepared with the assistance of a friend. 

4. It is not apparent to me that the Federal Magistrate erred in his Honour's consideration of the issues raised by the appellants in their application for judicial review.  This appeal should be dismissed with costs, fixed in the sum of $2,200.   

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:        1 December 2008

The Appellants appeared in person
Solicitor for the Respondents:	Sparke Helmore

Date of Hearing:	12 November 2008
Date of Judgment:	12 November 2008