SZFCZ & Anor v Minister for Immigration [2005] FMCA 1045

FEDERAL COURT OF AUSTRALIA SZEGW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1045 Federal Court of Australia Act 1976 (Cth) s 25(1A) SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 cited SZEGW v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS NSD 728 OF 2005 HELY J 8 AUGUST 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 728 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZEGW

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HELY J

DATE OF ORDER: 8 AUGUST 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed with costs. 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 728 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZEGW

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HELY J

DATE: 8 AUGUST 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a decision of Federal Magistrate Lloyd-Jones dismissing an application for judicial review of a decision of the Refugee Review Tribunal ('the RRT') affirming a decision of the Minister's delegate not to grant the appellant a protection visa. By direction of the Chief Justice pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth) the appeal is to be heard and determined by a single judge. 2 The appellant is a citizen of India who claimed a well-founded fear of persecution in India by reason of his political opinion and, in particular, because of his membership of the Congress Party. The following summary of the RRT's findings in relation to the appellant's claims is taken from the Federal Magistrate's decision. (a) In the RRT's decision it was accepted that: (i) the appellant originated from Tamil Nadu and was a supporter of the Congress Party; (ii) the appellant had been engaged in conflict with Mr Nangan, a supporter or official of the Bharatiya Janata Party ('the BJP'); (iii) in 1999 there were hostilities between the appellant and Mr Nangan; (iv) Mr Nangan tried to persuade the appellant to support the BJP; and (v) Mr Nangan threatened the appellant with harm if he did not cease supporting the Congress Party. (b) However, the RRT found: (i) nothing came of the threats and they did not amount to persecution; (ii) it did not accept that the appellant suffered any mistreatment or harm from Mr Nangan, his associates or members of the BJP or the Rashtriya Swayamsevak Sangh ('the RSS'); (iii) none of the hostilities affected his or his family's continued residence in the area; (iv) it did not accept the local police acted to harm the appellant or that they had failed to protect him from harm; and (v) it did not accept the appellant was attacked and threatened by his political opponents in Chennai in January 2004. (c) The RRT concluded that the appellant did not have a real chance of persecution by Mr Nangan, his supporters, the RSS or members of the BJP by reason of his support of the local Congress Party. (d) The RRT also dealt with the appellant's claim that he feared persecution by reason of his involvement in the publication of articles critical of local BJP politicians in newspapers or magazines. In doing so the RRT accepted the appellant was named as the publisher or editor of those magazines and newspapers but did not accept that the appellant played any part in writing the articles. (e) The RRT noted that India's Constitution enshrines freedom of expression and that media outlets regularly publish articles critical of the government and opposition parties. The RRT noted that there was nothing exceptional contained in the articles. The RRT observed that the claimed fear of persecution on this ground appeared to be entirely speculative. The RRT concluded that the appellant did not face a real chance of persecution from local BJP politicians or their supporters by reason of the appellant's involvement in publishing the newspapers and/or magazines or any imputed political opinion. (f) The RRT considered the appellant's position if he were to return to India as a supporter of the Congress Party and, on the basis of country information, concluded that the appellant faced no risk of harm from his political opponents in the BJP. The RRT also observed that the appellant would not be at risk of persecution by State authorities for reasons of political opinion expressed in the newspapers and magazines in which he had been involved. If he was to be threatened by any person aggrieved by the comments made in those publications he would be able to avail himself of reasonable and effective state protection. (g) The RRT concluded that the appellant is not a person to whom Australia has protection obligations because he does not satisfy the criteria set out in section 36(2) of the Migration Act 1958 (Cth) ('the Act'). 3 In the Federal Magistrates Court his Honour reviewed the various grounds relied upon by the appellant in support of his judicial review application before concluding that the RRT had complied with all of the requirements of the Act to accord the appellant procedural fairness and that the RRT's decision did not disclose any jurisdictional error. 4 A Notice of Appeal to this Court was filed on 11 May 2005 which has been supplemented by an Amended Notice of Appeal filed on 13 July 2005. With the possible exception of grounds (f) and (g) of the Notice of Appeal and ground five of the Amended Notice of Appeal, the grounds of appeal seek to re-agitate the merits of the appellant's case but under the umbrella of unparticularised assertions of error. 5 The appellant did not file an outline of submissions in support of his appeal. Nonetheless, I invited him to put any submissions he wished to put in support of his appeal when the matter came on for hearing this morning. He told me that if returns home to India his life will be in danger. He urged the Court to permit him to remain in Australia, but apart from that he had nothing else to say. 6 I appreciate the practical difficulties with which a person in the position of the appellant is confronted because he is in a strange country whose language he cannot speak and whose legal system he cannot understand. Nonetheless, I have to say that the matters he put to me are not such as would permit me to uphold his appeal. 7 Ground five in the Amended Notice of Appeal and ground (f) in the Notice of Appeal take issue with the accuracy of the independent country information relied upon by the RRT. The complaint is that the RRT relied upon 'foreign sources' rather than on information supplied by the appellant, but the cases establish that it is for the RRT to use whatever country information it deems to be appropriate and it is the RRT's function rather than the Court's function to assess the weight which should be given to any country information. Therefore, this complaint does not disclose any error, let alone jurisdictional error, on the part of the RRT. 8 Ground (g) of the Notice of Appeal asserts that the RRT and Lloyd-Jones FM did not deal with the appellant's claim that the police did not protect the appellant from Nangan and his supporters in the RSS and BJP. This claim is insupportable as both the RRT and Lloyd-Jones FM dealt with this question, although they did so in a manner which was adverse to the appellant. 9 I have read the decision of Lloyd-Jones FM and the decision of the RRT. I have not been able to discover for myself any error in the approach adopted by either. Counsel for the Minister very properly raised with me the issue as to whether the recent decision of the High Court in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 had any application, even though this was not a matter which the appellant himself had relied upon. I agree with counsel's submission that the decision has no application in the circumstances of the present case because the RRT's decision was not based upon any inconsistency between information given to the Department of Immigration & Multicultural & Indigenous Affairs by the appellant and information before the RRT. 10 It follows that the appellant has not established any ground of appeal or any basis upon which this Court would be justified in interfering with the decision of Lloyd-Jones FM or of the RRT. The appeal must therefore be dismissed with costs. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate: Dated: 19 August 2005

The appellant appeared in person

Counsel for the Respondent: Ms L Clegg

Solicitor for the Respondent: Clayton Utz

Date of Hearing: 8 August 2005

Date of Judgment: 8 August 2005