SZCMH & SZCMI v Minister for Immigration & Multicultural Affairs [2006] FCA 501

FEDERAL COURT OF AUSTRALIA

SZCMH & SZCMI v Minister for Immigration & Multicultural Affairs [2006] FCA 501 SZCMH AND SZCMI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NSD 221 OF 2006 EDMONDS J 12 MAY 2006 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 221 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZCMH AND SZCMI

APPELLANTS

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: EDMONDS J

DATE OF ORDER: 12 MAY 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the first respondent's 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 NSD 221 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZCMH AND SZCMI

APPELLANTs

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: EDMONDS J

DATE: 12 MAY 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT EDMONDS J:

Introduction 1 This is an appeal from a judgment of the Federal Magistrates Court (Smith FM) dismissing an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') affirming the decision of a delegate of the first respondent ('the Minister') not to grant a protection visa to the appellant husband ('the appellant') and his wife. The wife has no independent claims.

Background 2 The appellant is a citizen of India, of Hindu religion. He arrived in Australia, with his wife, on a temporary visitor visa on 22 March 2003 and lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs ('the Department') on 1 May 2003. 3 The appellant's claims were set out in that document. The appellant said that he had left his country of nationality, India, 'due to the fear of getting persecuted for having different political opinion and personal problems developed in local mafia group and life threats on our lives'. He claimed that he had been running a business for himself in Bombay. In 1985 he had joined the Samajwadi Party. He said: 'I was an active member of the Samajwadi Party and did lot of work for the Party in the Maharashtra State of India. Soon I became a popular figure in the State …'. 4 The appellant referred to the Bharatiya Janata Party ('BNP') and extremist groups supporting that party, and claimed to have received threats from those groups. He referred to them being responsible 'for many Hindu-Muslim riots in the country', and said that in 1992 when the Babri Mosque was demolished: 'my shop was also destroyed during this event and I was beaten severely and escaped for life'. He said subsequently he was 'always on the hit list of Shiv Sena and BJP extremists', and received threats to him and his family and demands for 'a heavy ransom'. The appellant said his business was completely gone due to 'consistent life threats and they beaten me up several times and the Police did not take any proper actions against the culprits as they are backed by BJP govt who is ruling the nation'. 5 He said that since the Gujerat train tragedy in February 2002: 'I strongly condemned the acts of BJP leaders and their extremists group and they started threatening me as their enemy and decided to eliminate me and my family. In order to achieve their objective they attacked recently in the month of Feb 2003 at my house and beaten me severely and my family also sustained injuries. They threatened me to leave the place forever to save [my] life'. 6 The appellant claimed that the authorities in India were 'biased and they act under the influence and direction of BJP leaders and govt', and that there was no possibility of him relocating in another part of the country. 7 No supporting documents were forwarded to the Department nor subsequently to the Tribunal. 8 On 17 June 2003, a delegate of the Minister made a decision, refusing to grant the appellant a protection visa. The delegate drew attention to the lack of evidence to support the claims and the extremely vague statements contained in the visa application. The delegate also indicated an opinion that it was reasonable for the appellant to relocate to another area in India should he wish to avoid any perceived harm.