SZAJL v Minister For Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 217

FEDERAL COURT OF AUSTRALIA

SZAJL v Minister For Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 217 SZAJL V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 256 of 2004 BEAUMONT, MERKEL AND HELY JJ SYDNEY 17 AUGUST 2004

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 256 OF 2004

THIS IS AN APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN: SZAJL

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: BEAUMONT, MERKEL AND HELY JJ

DATE OF ORDER: 17 AUGUST 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 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 N 256 OF 2004

THIS IS AN APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN: SZAJL

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: BEAUMONT, MERKEL AND HELY JJ

DATE: 17 AUGUST 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT

THE COURT:

BACKGROUND 1 This is an appeal from a decision of the Federal Magistrates Court, dismissing an application for review of a decision of the Refugee Review Tribunal ('the Tribunal') handed down on 21 March 2003, in which the Tribunal affirmed the decision of the respondent's delegate not to grant the appellant a protection visa. 2 The appellant, an Indian Moslem, and his family arrived in Australia on 8 September 2001. He applied for a protection visa on 17 October 2001, claiming to fear persecution by Hindu extremists by reason of his religion, Islam.

THE TRIBUNAL'S DECISION

(a) The appellant's claims 3 The Tribunal summarised the appellant's claims to the following effect: (i) Up until 1999, the appellant lived in Mombai and was the proprietor of a successful newsagency near the main railway station and the city market. (ii) The appellant's father (who had died in 1996) was a victim of extortion when an extremist Hindu organisation (Shiv Sena) demanded that he hand over the newspaper business and building which he owned. The appellant's father went to the police (despite threats from the Shiv Sena of harassment if he did so), but the police offered no practical assistance. (iii) In March 1995, these extremist supporters took away the appellant's brother, who has not been seen since. (iv) The appellant was beaten by the Shiv Sena, who demanded he leave his shop. He would have been happy to sell, but no other Hindus were prepared to buy through fear of the Shiv Sena. (v) The appellant sought assistance from his local council ('Sarpanch'), as its members were mainly Hindus. But no assistance was forthcoming 'due to their fear of Shiv Sena'. (vi) The appellant 'escaped' to Europe in October 1999, returned to India in 2000, and attempted to re-locate to Jaipur and later Madras, but these moves were unsuccessful because he could only speak Hindi (the national language) and not the local language, and he had no job and no money. Meanwhile, the Mombai shop and the site were occupied by Shiv Sena supporters. The appellant refused to sign the property over to Shiv Sena. The appellant, his wife and daughter left for Australia on 7 September 2001. 4 The Tribunal heard evidence from a friend of the appellant (an Australian citizen by birth) which 'generally corroborated the evidence regarding communal violence in Mombai'. The friend also said that the appellant's shop no longer existed, as it had been destroyed during the 1992 riots, but that the appellant still owned the title to the land.