SZNYS v Minister for Immigration and Citizenship
[2010] FCA 503
FEDERAL COURT OF AUSTRALIA
SZNYS v Minister for Immigration and Citizenship [2010] FCA 503
Citation: SZNYS v Minister for Immigration and Citizenship [2010] FCA 503 Appeal from: SZNYS v Minister for Immigration and Citizenship [2010] FMCA 155 Parties: SZNYS and SYNYT v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL File number: NSD 252 of 2010 Judge: NICHOLAS J Date of judgment: 17 May 2010 Legislation: Migration Act 1958 (Cth) ss 424, 424A Cases cited: SZNYS v Minister for Immigration and Citizenship & Anor [2010] FMCA 155 affirmed
Minister for Immigration and Citizenship v SZKTI & Anor (2009) 238 CLR 489 cited
SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 citedDate of hearing: 17 May 2010 Date of last submissions: 17 May 2010 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 19 The first appellant appeared in person and on behalf of the second appellant Solicitor for the First Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 252 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZNYS
First AppellantSYNYT
Second AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
NICHOLAS J
DATE OF ORDER:
17 MAY 2010
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellants pay the first respondent’s costs in the amount of $2,100.00
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 Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 252 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZNYS
First AppellantSYNYT
Second AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
NICHOLAS J
DATE:
17 MAY 2010
PLACE:
SYDNEY
REASONS FOR JUDGMENT
(Revised from Transcript)
The appellants appeal from a judgment of Barnes FM delivered on 24 February 2010 (SZNYS v Minister for Immigration and Citizenship & Anor [2010] FMCA 155).
BACKGROUND
The appellants are husband and wife. They are citizens of the Republic of India (“India”) who arrived in Australia on 14 August 2008. They lodged an application for Protection (Class XA) visas on 12 September 2008. Only the first named appellant (hereinafter “the appellant”) submitted his own claims to be a refugee. The second named appellant applied as a member of the family unit.
The appellant’s claims were set out in a statutory declaration submitted with his protection visa application. The appellant also provided various documents in support of his application.
In summary, the appellant claimed to fear persecution for two reasons. First, he had been a follower of a guru whom he claimed was politically well connected. He had left the guru’s ashram after the deaths of two children were linked to the guru and his followers. As a result of his leaving the ashram, members of it assaulted him, damaged his shop and threatened to kill him and his wife. Secondly, the appellant claimed that his life was in danger due to a terrorist bomb attack which had taken place at a bus stop outside his shop and for fear of other terrorist attacks in his town’s district.
A delegate of the first respondent refused the appellants’ protection visa applications on 5 December 2008. The appellants then applied to the Refugee Review Tribunal (“Tribunal”) for review of the delegate’s decision.
On 9 September 2009 the Tribunal handed down its decision, affirming the decision of the delegate. In summary, it accepted the factual claims of the appellant in relation to the incidents which had occurred involving the members of the ashram and that, due to these incidents, the appellant and his wife had first moved away from his home to stay with relatives and then to Mumbai, before travelling to Australia. It also accepted that, since the appellant and his wife left India, followers of the ashram had made enquiries of the appellant’s whereabouts with his friends. The Tribunal found that the appellant has a well founded fear of persecution for a Convention reason namely, his political opinions. Plainly, the Tribunal found the appellant to be a credible witness.
However, the Tribunal also found that the persecution to which the appellant was subjected was localised to the region where he previously lived and worked and that it is reasonable for him and his wife to relocate within India. In making this finding, the Tribunal was satisfied that the appellant had ceased his activities with the ashram and was satisfied that he will not engage in any similar activities upon relocation.
The Tribunal considered the appellant’s personal circumstances and found that given there are no restrictions upon his movement in India, the appellant’s ability to speak more than one language, his previous employment experience, his demonstrated ability to relocate with his wife within India and to travel to Thailand and Australia, his financial capacity, and the appellant’s and his wife’s demonstrated ability to live away from relatives and friends, it was reasonable for the appellant and his wife to relocate.
The Tribunal considered the further claim that the appellant feared harm arising from a terrorist attack but did not accept that such an attack would give rise to a well founded fear of persecution for a Convention reason.
The Tribunal was not satisfied the appellant is a person to whom Australia owes protection obligations nor that such obligations were owed to the second appellant, whose claim was made on the basis of her membership of the appellant’s family unit.
JUDGMENT OF THE FEDERAL MAGISTRATES COURT
The appellants raised two grounds before the learned federal magistrate. The first concerned an alleged breach of s 424A of the Migration Act 1958 (Cth) (the Act). The second concerned an alleged failure to comply with s 424 of the Act.
The learned federal magistrate concluded that s 424A(1) of the Act was not engaged, as the Tribunal had not relied on any information which did not fall within the exceptions identified in s 424A(3) of the Act.
In relation to the allegation that there had been a failure to comply with the requirements of s 424 of the Act, the federal magistrate concluded there was no basis for finding any jurisdictional error in this matter: see Minister for Immigration and Citizenship v SZKTI & Anor (2009) 238 CLR 489 at [48].
The federal magistrate also considered the Tribunal’s relocation finding and concluded that there was no error in the approach taken by the Tribunal: see SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at [24] per Gummow, Hayne and Crennan JJ.
The appellant also made a claim at the hearing before the federal magistrate that the Tribunal did not actually look into his case. The federal magistrate concluded that this was not borne out by the Tribunal’s decision.
GROUNDS OF APPEAL
The appellants filed a notice of appeal on 16 March 2010, containing what purport to be 3 grounds of appeal. The first ground asserts that the federal magistrate did not find any error of law. The second asserts that the federal magistrate dismissed the case without considering the “legal and factual errors contained in the decision”. The third asserts that the federal magistrate failed to take into consideration that the Tribunal’s decision was “unjust and was made without taking into account the full gravity of my circumstances and consequences”.
The first ground is not a proper ground of appeal. The second and third grounds of appeal were not the subject of any particulars, elaboration or reasoned argument. There is no substance to either of these grounds of appeal.
I am satisfied the learned federal magistrate not only carefully considered the grounds of review advanced by the appellant, but that she independently satisfied herself that there was no jurisdictional error in the Tribunal’s decision, particularly in relation to the relocation finding. I agree with each of her Honour’s conclusions which I have summarised above. No error is disclosed in her Honour’s reasons for judgment.
CONCLUSION
The appeal should be dismissed with costs. I shall fix the costs at $2,100.00
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas. Associate:
Dated: 21 May 2010
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