SZCLK v Minister for Immigration and Citizenship [2007] FCA 104

FEDERAL COURT OF AUSTRALIA

SZCLK v Minister for Immigration and Citizenship [2007] FCA 104

MIGRATION – no point of principle Federal Magistrates Court Rules 2001 Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 SZCLK v Minister for Immigration and Multicultural Affairs [2005] FMCA 1456 SZXLK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1735 SZCLK v MINISTER FOR IMMIGRATION AND CITIZENSHIP 1756 OF 2006

TRACEY J

12 FEBRUARY 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY 1756 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZCLK

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

JUDGE: TRACEY J DATE OF ORDER: 12 FEBRUARY 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The respondent be identified as the Minister for Immigration and Citizenship. 2. The application for leave to appeal is refused with 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 1756 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZCLK

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

JUDGE: TRACEY J

DATE: 12 FEBRUARY 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application for leave to appeal from a judgment of aFederal Magistrategiven on 8 September 2006. The application before the Federal Magistrate sought judicial review of a decision of a delegate of the Minister, made on 19 June 2003, refusing to grant a protection visa to the applicant. 2 The applicant is a citizen of India who arrived in Australia on 20 March 2003. On 30 April 2003 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. The applicant claims fear of persecution in India by reason of his political opinion, in particular his involvement with the Indian Muslim League. The applicant claims that he was targeted by members of the Bharatiya Janata Party ("BJP") and was forced to relocate. As a result of his relocation the applicant claims that he became involved with the Indian Union Muslim leader and was given voluntary employment. The applicant claims that he organised a rally and was subsequently arrested by "Tamil Nadu Q Branch" and spent two days in custody. He claimed to have been tortured. The applicant claims false charges were laid against him and that he was imprisoned for one month. The applicant claimed that the BJP and All India Anna Dravidian Progressive Association ("AIADMK") cause problems for the Muslim community in India. The delegate refused the application for a protection visa. THE DECISION OF THE TRIBUNAL 3 The applicant appealed to the Refugee Review Tribunal ("the Tribunal"). The Tribunal did not accept the claims of the applicant in relation to his detention and imprisonment because the evidence presented was insufficient and conflicting and there was no attempt to obtain supporting material. Nor did it accept that the applicant was of particular interest to the BJP or to the AIADMK. The Tribunal considered that the applicant could return safely to India. On his own evidence the applicant had admitted that he could return to a certain village without difficulties caused by his religious beliefs or any other Convention reasons. He was nonetheless concerned that there were limited employment opportunities for persons of his age. Relying on independent country information the Tribunal found that there was no evidence to support the applicant's assertions of mistreatment in Chennai or Tamil Nadu became the AIADMK, the ruling party in Tamil Nadu, had strong secular and pro-minority views. There was no evidence that that the applicant suffered harm amounting to persecution for a Convention reason in Tamil Nadu in the past; nor was there a prospect of this occurring in the future. PREVIOUS LITIGATION HISTORY 4 The applicant sought judicial review of the Tribunal's decision in the Federal Magistrates' Court. This application was dismissed: see SZCLK v Minister for Immigration and Multicultural Affairs [2005] FMCA 1456. An appeal to this Court from the Federal Magistrates' Court was dismissed by Wilcox J on 23 November 2005: see [2005] FCA 1735. The applicant thereupon commenced the present proceeding seeking review of the decision of the Minister's delegate which had earlier been the subject of appeal to the Tribunal. GROUNDS BEFORE THE FEDERAL MAGISTRATE 5 In his application to the Federal Magistrates' Court, dated 7 December 2005, the applicant advanced the following grounds in support of his challenge to the Minster's delegate's decision: "1. A breach of the rules of natural justice occurred in connection with the making of the decision. The decision was not notified of the applicant and therfore the procedures that were required by law to be observed in connection with the making of the decision was not served.