SZIXK v Minister for Immigration and Citizenship & Anor [2007] FCA 143

FEDERAL COURT OF AUSTRALIA

SZIXK v Minister for Immigration and Citizenship & Anor [2007] FCA 143

MIGRATION – no point of principle Migration Act 1958 (Cth) s 424A Federal Magistrates Court Rules 2001 rr 44.12(1)(a), 44.12(2) Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 applied SZIXK v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 1869 OF 2006

TRACEY J

16 FEBRUARY 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1869 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZIXK

Applicant

AND: MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: TRACEY J DATE OF ORDER: 16 FEBRUARY 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The title of the first respondent be changed to Minister for Immigration and Citizenship. 2. The application be refused with costs fixed at $1,000.00 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 1869 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZIXK

Applicant

AND: MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: TRACEY J

DATE: 16 FEBRUARY 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This purports to be an appeal against a judgment of a Federal Magistrate given on 5 September 2006dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") which was made on 18 April 2006 and handed down on 11 May 2006: see [2006] FMCA 1372. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the delegate") to refuse to grant a protection visa to the applicant. 2 The applicant is a citizen of India. He arrived in Australia on 1 September 2005. He entered on a temporary business visa. The visa was granted after he advised immigration authorities that he wished to come to Australia for business discussions on behalf of his employer and that the employer was paying for the trip. He claimed to have a well-founded fear of persecution because of his membership of the Tamil Nadu Liberation Army ("TNLA"). The applicant claimed that he was persecuted by the Indian authorities and the Bharatiya Janata Party ('BJP') for his involvement with the TNLA. He also said that he was under threat by members of the TNLA because he quit the party without their knowledge. The applicant's claims included being arrested by police, having fabricated charges filed against him, suffering economic hardship, being accused of involvement in terrorist incidents, being tortured by police and being forced to go into hiding. The applicant also claimed that he may have problems with the Liberation Tigers of Tamil Eelam ("LTTE") as the applicant took orders from people whom he believed were members of the TNLA but who were actually members of the LTTE. 3 The Tribunal found that the applicant was not truthful about matters which were critical to his claim to be a refugee. He was unable to demonstrate significant knowledge of the TNLA. He provided contradictory information as to his employment over the five years prior to his departure from India. The Tribunal found that the applicant's evidence that, during this period he had at times been unemployed, been in prison and been engaged in casual work was contradicted by information provided by the Secretary of the Indo-Australian Chamber of Commerce and by statements made in the applicant's visa application. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution by reason of his political opinions or other Convention reason should he return to India. 4 The applicant sought judicial review of the Tribunal's decision in the Federal Magistrates Court. His grounds included claims that the decision was not made in good faith; that there had been breaches of the rules of natural justice; that the Tribunal did not consider the reasonableness of relocation; the use of adverse information by the Tribunal; that the Tribunal failed to give proper and adequate reasons; that the Tribunal failed to exercise its jurisdiction; and that the Tribunal failed to consider all claims and issues. 5 The Federal Magistrate dismissed the application under r 44.12(1)(a) of the Federal Magistrates Court Rules ('the Rules') as there was no arguable case raised. In coming to that conclusion, his Honour noted that particulars in support of the grounds were not provided, that the grounds amounted to factual challenges, that the Tribunal did not consider relocation, and that a letter was sent to the applicant which satisfied the Tribunal's obligations under s 424A of the Act. 6 The notice of appeal to this Court was made on the grounds that the Federal Magistrate and the Tribunal did not consider that the applicant's fear was Convention based and that the Tribunal did not appreciate the evidence. 7 An order made under r 44.12(1)(a) of the Rules is an interlocutory decision: see r 44.12(2) Leave to appeal is required. 8 At the hearing of the "appeal" the applicant appeared in person. He had the assistance of an interpreter. He reasserted that the facts upon which his claim for a visa was made were true and that he had no knowledge of how the business visa was obtained. He said that he could not go back to India. 9 The principles to be applied in dealing with an application such as the present are laid down in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. 10 In my opinion the learned Magistrate's decision is not attended with sufficient doubt to warrant reconsideration by this Court. Moreover, were leave to be granted to appeal, there is no prospect that the applicant could succeed on the grounds on which he seeks to rely. 11 The application should be refused with costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.