MZWIR v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1069

FEDERAL COURT OF AUSTRALIA

MZWIR v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1069 MZWIR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS VID 276 OF 2005 NORTH J 25 JULY 2005 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 276 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MZWIR

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: NORTH J

DATE OF ORDER: 25 JULY 2005

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The appellant pay the respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 276 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MZWIR

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: NORTH J

DATE: 25 JULY 2005

PLACE: MELBOURNE

REASONS FOR JUDGMENT

introduction 1 This is an appeal from a decision of McInnis FM given on 21 March 2005. The Federal Magistrate dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 28 July 2000. The Tribunal had affirmed the decision of the delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, not to grant the appellant a protection visa. On 19 May 2005 the Chief Justice made a determination pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth) that this appeal would be heard by a single judge.

background to the application and the claims before the Tribunal 2 The appellant is a 45 year-old citizen of India. He follows the Sikh religion. He claims to be fearful of being killed by government forces on account of his support of the Sikh Student Federation (SSF), which opposes the Indian Government and seeks a separate Sikh state. 3 The appellant claimed that when he was 14 years old, militants killed his parents due to their religion. He claimed that as a way of paying respect to their memories, he joined the Freedom Fighters, and shortly thereafter, in 1988 or 1989, the SSF. Within these organisations, he was involved in delivering papers and possibly ammunition in support of their causes. 4 The appellant resided and worked in Lebanon between December 1991 and March 1997. He claimed that whilst there, he donated money to the cause of Sikh separatism. During this period, he returned to India on four or five occasions. 5 The appellant further claimed that in September 1997, a friend of his who was a member of the SSF, whilst under arrest and being subjected to torture, revealed to the authorities the names of some of his associates, including the appellant. As a result, the appellant claimed that on 28 September 1997 he was arrested and detained for 10 days. He claimed that he was only released as a result of bribing an official. 6 On 20 October 1997 the appellant left India using a passport issued in his own name, arriving in Australia two days later.