FEDERAL COURT OF AUSTRALIA

SZLNG v Minister for Immigration and Citizenship [2008] FCA 1830

SZLNG AND SZLNH v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1083 of 2008

TAMBERLIN J

1 DECEMBER 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed with costs;

2.                  Costs are fixed in the sum of $3,500.

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

1                     This is an appeal from a judgment of Federal Magistrate Barnes, dismissing an application for review of a decision of the Refugee Review Tribunal. The appellants are a husband and wife, the appellant wife making her claims as a member of the family unit of her husband (hereafter “the appellant”). The appellant wife did not appear in court today.

2                     The Tribunal found that the appellant and his wife (whom I note were both applicants before the Tribunal) are nationals of India, and the delegate refused the visa application on the basis that neither of the appellants were persons to whom Australia had protection obligations under the Refugee Convention.  The Tribunal’s reasons are based on what is largely an acceptance of the evidence of the appellants, but in the light of this evidence the Tribunal decided that it was not satisfied that there was any Convention related ground on which to base the grant of a protection visa.

3                     The claims of the appellants were based on fear of debt collectors who the appellant said were: ‘Criminal‑like men who were all Muslim by caste.’

4                     It is evident from the findings and reasoning of the Tribunal that it made appropriate inquiries of the appellants necessary to clarify the case which they were advancing. The decision of the Tribunal indicates that considerable effort was taken by the decision-maker to elicit the relevant information and to summarise it in a clear and concise manner.  The ground of appeal is that the Federal Magistrate failed to hold that the Tribunal wrongly applied the law to the facts in relation of the seriousness of harm necessary to establish persecution as a member of a particular social group and due to political opinion.  On the findings of the Tribunal, and the evidence, it was open to it to form the view that the appellant was not a member of any particular social group and that political opinion was not a reason for the persecution.

5                     In relation to the alleged breach of natural justice requirements and fairness, and the failure to act in accordance with section 424A of the Migration Act (Cth) 1958 (“the Act”), Federal Magistrate Barnes, for reasons set out in her decision under appeal, in my view, correctly deals with this ground in paragraphs 18 and 19 of her reasons.  When the matter came on for hearing before me this morning the appellant appeared, but he was unrepresented, and when asked to make submissions as to the grounds of appeal he was unable to do so.

6                     The appellant did make the submission that it would now be dangerous for him to return to Mumbai in light of the recent terrorist attacks. In relation to this there are two points to be made.  The first is that these events occurred after the decision of both the Tribunal and the Federal Magistrate.  More importantly, there is nothing to relate the appellant’s circumstances to the recent violence in Mumbai in any way which would attract the protection of the Refugee Convention.

7                     Having considered the decision of the Tribunal and of the learned Magistrate, I am not persuaded that any error has been established which would warrant the grant of the appeal from the Federal Magistrate, and accordingly I dismiss the appeal with costs. I am satisfied that it is appropriate for the appellants to pay the first respondent’s costs fixed in the amount of $3500.

Associate:

Dated:         2 December 2008