SZEXI v Minister for Immigration & Multicultural Affairs [2006] FCA 138

FEDERAL COURT OF AUSTRALIA

SZEXI v Minister for Immigration & Multicultural Affairs [2006] FCA 138 SZEXI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NSD 2132 OF 2005 STONE J 28 FEBRUARY 2006 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2132 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZEXI

FIRST APPELLANT

SZEXJ

SECOND APPELLANT

AND MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: STONE J

DATE OF ORDER: 28 FEBRUARY 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. Leave to file an amended notice of appeal is refused. 2. The appeal is dismissed. 3. The appellants pay the first 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

NEW SOUTH WALES DISTRICT REGISTRY NSD 2132 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZEXI

FIRST APPELLANT

SZEXJ

SECOND APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: STONE J

DATE: 28 FEBRUARY 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from the judgment of a Federal Magistrate delivered on 17 October 2005 dismissing an application for review of a decision of the Refugee Review Tribunal ('the Tribunal'). The Tribunal had affirmed a decision of a delegate of the first respondent refusing to grant the appellants protection visas.

Background 2 The appellants are a father and son who are citizens of India and members of the Dalit caste. They are practising Christians and are actively involved in the Sathya Veda Ministries in Hyderabad. This is a Christian religious organisation engaged in practical social welfare activities for the benefit of the aged, ill and disadvantaged. The appellants arrived in Australia on 29 October 2003 and lodged applications for protection visas on 19 November 2003. They based their applications for protection visas on claims to have well-founded fears of persecution on grounds of their religion, race and membership of a particular social group (being the Dalit caste). 3 In its reasons for decision, handed down on 29 June 2004, the Tribunal accepted that the appellants were active in the Sathya Veda Ministries and had been violently opposed in these activities by Rashtriya Swayamsevak Sangh ('RSS') activists and supporters. The RSS activists accused the appellants of attempting to convert Hindus to Christianity. 4 In their evidence to the Tribunal the appellants described a number of incidents in which they claimed to have been subjected to physical violence at the hands of the RSS. The Tribunal accepted that these incidents occurred but did not regard them as being as serious as the appellants claimed. The Tribunal found that there was no official quality to the actions against the appellants and that, based on independent country information, the appellants would have access to adequate protection if similar incidents were to occur upon their return to India. 5 The Tribunal also found that although death threats had been made against them, there was no real risk to the appellants' lives or liberty on their return to India and that any fear the appellants might have that their lives were at risk was not well-founded. The Tribunal held that it was likely that the appellants would continue to engage in the type of activities that had previously provoked violent conduct, but that the appellants would be able to use their previous experience to avoid behaviour likely to result in violence against them.