SZDNO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 443

FEDERAL COURT OF AUSTRALIA

SZDNO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 443 SZDNO v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS NSD 1868 of 2004 BRANSON J 7 APRIL 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1868 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZDNO

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BRANSON J

DATE OF ORDER: 7 APRIL 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1868 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZDNO

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BRANSON J

DATE: 7 APRIL 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT

introduction 1 The appellant has appealed from a decision of the Federal Magistrates Court whereby his application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') was dismissed. The Tribunal on 10 December 2002 had affirmed a decision of a delegate of the respondent not to grant the appellant a protection visa. Although the appellant did not have the benefit of legal representation at the hearing of his appeal, he acknowledged that he did have the assistance of a lawyer in drawing his amended notice of appeal and in preparing his written submissions to the Court. 2 The Tribunal formed a positive view of the appellant's credibility. It accepted his claim that he was a professional diver and that in 1996 he was approached by people who were apparently criminals to do private work for them. It accepted that when he refused this approach he was threatened with death and so moved in 1997 to the United Arab Emirates ('UAE'). The Tribunal accepted that the appellant received some telephone threats when he returned to the UAE having been in India for 3 months for his father's funeral in 1998, but it did not accept that his father's death was related to the appellant's refusal to work for the criminals or that the death of a fellow diver was so related. 3 The Tribunal concluded first, that there was no real chance that the appellant would face serious harm if he returns to India, noting that he had in the past faced threats but no actual harm and that he had had no encounters of any kind with the criminals since 1999. Secondly it concluded that if he were to face harm, it would not be harm for a Convention reason.