FEDERAL COURT OF AUSTRALIA

SZEUB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1753

SZEUB v Minister for Immigration and Multicultural and Indigenous Affairs AND REFUGEE REVIEW TRIBUNAL

NSD 1502 OF 2005

MOORE J

28 NOVEMBER 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.      The appeal be dismissed.

2.      The appellant pay the first respondent's costs.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This is an appeal from a judgement of a Federal Magistrate of 2 August 2005 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") not to grant the appellant a protection visa.  On 1 March 2003 the appellant arrived in Australia.  He applied for a protection visa on 27 March 2003 and on 11 November 2003 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") refused to grant him the protection visa.  The appellant sought review of that decision by the Tribunal on 11 December 2003.  The Tribunal affirmed the decision of the delegate of the Minister, handing down its reasons for decision on 13 May 2004.

2                     The appellant is a national of India.  He claimed to fear persecution on the basis of his religion, that is, Shia Muslim, and imputed political opinion.  The appellant claimed to have suffered harm in the past from the BJP and Sunni Muslims because he is Shia Muslim and because of his involvement in the All India Muslim Shiyah Group, a very small localised welfare organisation.  The appellant claimed to have attracted the adverse attention of BJP loyalists by reason of his being the secretary of the All India Muslim Shiyah Group.  This group was informally arranged, comprised about 10 people and held community discussions to promote communal harmony.  It did not undertake political or charitable work.

3                     The appellant claimed the BJP loyalists were his main assailants but he was also ill treated by Sunni Muslims for being from a backward Shia family.  He claimed to have been violently attacked in public by BJP loyalists, to have reported the incident but that no action was taken.  He claimed the BJP pursued him from Mumbai to Ratnagiri, his home town, and that he was abused, threatened and kicked slightly by Sunni Muslims.  Following this he returned to Mumbai where there was an attack on the All India Muslim Shiyah Group Office and it was burned.  He also claims to have received many phone calls and threatening letters.

4                     In its reasons for decision, the Tribunal said that it had regard to the material referred to in the delegate's decision, other material available to it from a range of sources and the appellant's oral evidence.  The Tribunal was not satisfied that all the harm he claimed he had suffered had occurred.  Where it accepted harm had occurred and giving the appellant the benefit of the doubt, the Tribunal concluded the harm was not serious enough to constitute persecution.  Where it rejected claims of harm, it did so because of inconsistencies in the appellant's evidence and accounts of events considered implausible.  It found there was effective state protection and the appellant did not have a well founded fear of persecution on the grounds raised.

5                     The Federal Magistrate found the Tribunal had not failed to take into account a relevant consideration and that no actual bias affected the Tribunal's decision.  Nor did his Honour find any basis for the claim that the finding that the appellant was not a refugee was not based on any rational or logical basis.  The Federal Magistrate found that the matter was not one relevantly similar to the facts in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601.  His Honour did not discern jurisdictional error on the part of the Tribunal. 

6                     In this appeal the grounds of appeal state:

The Federal Magistrates Court delivered judgment on 8 August 2005; failed to find error of law, jurisdictional error, procedural fairness and relief under section 39B of the Judiciary Act 1903.  The Tribunal made judgment was not maintained the proper procedure of the Migration Act.

Reference is then made in the notice of appeal to the judgment of the High Court in Plaintiff S157/2002 v Commonwealth of Australia(2003) 211 CLR 476 and also the decision of the Full Court of the Federal Court in SAAP (SAAP of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 411).  Further reference was made to SZFKL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 931.  The appellant has also filed written submissions which appear to maintain the argument about the similarities between this case and the case of Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601.