FEDERAL COURT OF AUSTRALIA

SZJNA v Minister for Immigration and Citizenship [2007] FCA 705

SZJNA v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 162 OF 2007

BRANSON J

3 MAY 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The name of the first respondent be changed to Minister for Immigration and Citizenship.

2.                  The application be dismissed.

3.                  The applicant pay the first respondent’s costs fixed in the sum of $1 000.00

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

REASONS FOR JUDGMENT

1                     The applicant seeks leave to appeal from a judgment of the Federal Magistrates Court.  Leave to appeal is required because his application to that court for judicial review of a decision of the Refugee Review Tribunal was summarily dismissed on the ground that it raised no arguable case for relief.

2                     The applicant’s application for a protection visa was dismissed by the Tribunal essentially on grounds of credibility.  The applicant claimed before the Tribunal to fear serious harm from the Naxalites in India.  The Tribunal member noted that although he claimed that he had that fear for a period of about 20 years, he referred to only one incident where he was the victim of physical harm.  The Tribunal did not accept that the Naxalites intended seriously to harm the applicant as he claimed. The Tribunal found support for its view in the fact that although the applicant’s passport was issued on 5 December 2003 he did not leave India until March 2006.  The Tribunal found that there was not a real chance that the applicant would be persecuted for any Convention reason then or in the reasonably foreseeable future should he return to India.

3                     The applicant sought judicial review in the Federal Magistrates Court of that decision.  The learned Federal Magistrate dismissed his application in reliance on r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) on the ground that the application raised no arguable case for relief.  The application to that court, like the applicant’s submissions to this Court today, indicated that he was seeking review on the merits of the decision of the Tribunal.  It was not open to the learned Federal Magistrate to review on the merits the applicant’s claim to be entitled to a protection visa.  When asked by me today what error he suggested attended the judgment of the Federal Magistrates Court the applicant again raised only matters going to the merits of his claim to be entitled to a protection visa.

4                     I am satisfied that no utility would attend a grant of leave to appeal in this case.  Any such appeal would be bound to fail.  For this reason the application is refused.

Associate:

Dated:         11 May 2007