SZFFV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 734

FEDERAL COURT OF AUSTRALIA

SZFFV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 734 SZFFV & SZFFW v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS NSD 535 of 2005 BRANSON J 27 MAY 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 535 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZFFV

FIRST APPELLANT

SZFFW

SECOND APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BRANSON J

DATE OF ORDER: 27 MAY 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed pursuant to s 25(2B)(bb)(i) of the Federal Court of Australia Act 1976 (Cth). 2. The appellants pay the respondent's costs fixed in the sum of $1800.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 535 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZFFV

FIRST APPELLANT

SZFFW

SECOND APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BRANSON J

DATE: 27 MAY 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of the Federal Magistrates Court delivered by Federal Magistrate Driver ex tempore on 21 March 2005. His Honour dismissed an application by the appellants for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal'). The decision of the Tribunal had affirmed an earlier decision of a delegate of the respondent not to grant the appellants protection visas. 2 Only the male appellant has attended Court today. He has advised the Court that he has authority to speak on behalf of his wife. Only the male appellant made claims under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees. The female appellant based her claim to be entitled to a protection visa on her membership of her husband's family. I will refer to the male appellant hereafter as 'the appellant'. 3 The appellant is a citizen of India. He has claimed that he is a political activist with involvement with the BJP, and a religious extremist. He has claimed that he was targeted by the Congress Party and by Muslim fundamentalists. The appellant did not impress the Tribunal as a reliable witness whose assertions might be accepted at face value. The Tribunal noted that he had travelled from India to New Zealand and had remained in that country for a year trying to set up a business without applying for asylum. The Tribunal rejected his assertion that he was not aware that he could claim asylum in New Zealand. It concluded that his failure to do so indicated a lack of subjective fear of persecution in India. It formed the view that he had made up his claims in order to enhance his application for a protection visa. 4 The Tribunal found that the appellant had not been harassed or harmed for a Convention reason in India. It further concluded that as a Hindu and a supporter of the BJP from Gudjerat he did not have a well-founded fear of persecution in India. The Tribunal noted that India is a parliamentary democracy with an independent judiciary and that it has a nationwide police service to which the appellant could look for protection. It further noted that Hinduism is the majority religion in India. 5 The learned Federal Magistrate was unable to identify any jurisdictional error affecting the decision of the Tribunal. His Honour dismissed the application for judicial review of the decision of the Tribunal. 6 The notice of appeal filed by the appellants is an unhelpful document. The first ground asserts that the Federal Magistrate: '…failed to find error of law, Jurisdictional error, Procedural fairness and relief under Section 39 B of the Judiciary Act 1903.'