SZIBE v Minister for Immigration and Citizenship [2007] FCA 579

FEDERAL COURT OF AUSTRALIA

SZIBE v Minister for Immigration and Citizenship [2007] FCA 579

SZIBE AND SZIBF v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 1922 OF 2006

CONTI J

24 APRIL 2007

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY nsd 1922 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZIBE

First Appellant

SZIBF

Second Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: CONTI J DATE OF ORDER: 24 APRIL 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The name of the first respondent be amended to 'Minister for Immigration and Citizenship'. 2. The appeal be 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 1922 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZIBE

First Appellant

SZIBF

Second Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: CONTI J

DATE: 24 april 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal against a judgment of Federal Magistrate Smith delivered on 11 September 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') made on 15 December 2005. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (as then designated) to refuse to grant protection visas to the appellants. 2 The appellants are Indian nationals, respectively husband and wife. The appellant husband arrived in Australia on 28 March 2005 and the appellant wife arrived in Australia on 7 April 2005. On 26 May 2005 the appellants lodged applications for protection visas with the Department of Immigration and Multicultural and Indigenous Affairs. Only the appellant husband made claims under the Convention with the appellant wife relying on her membership of his family unit. As members of the same family unit the fate of the appellant wife's application depends on the outcome of the appellant husband's application. 3 On 9 August 2005 a delegate of the first respondent refused to grant protection (class XA) visas to the appellants. On 29 August 2005 the appellants applied to the Tribunal for a review of that decision. On 13 September 2005, the Tribunal sent to the appellants a s 424 letter which requested that the appellant husband provide additional information including 'details (dates, places, circumstances etc) of all acts of persecution directed at you in India'. 4 Before the Tribunal, the appellant husband claimed to fear persecution from non-Muslims because of his religion and from Deobandi Muslims because of his specific Barelvi beliefs. The Tribunal member comprehensively summarised the claims made by the appellant before the Tribunal under the heading 'Findings and Reasons' appearing on page 13 of the Tribunal's reasons, which inter alia included the following: 'The first occasion when the applicant claims to have been arrested was in March 1996…According to his evidence, a group of young men who lived near him publicly celebrated the defeat of India in a cricket match, letting off fireworks and annoying neighbours, who complained to police. Although he was not at the scene when the offending actions were taken, he returned home and encountered some of them and was with them when police arrived and was arrested with them. Having heard that he was arrested, some people who had a grudge with him because he had refused to join in political activity, falsely implicated him in the incident. He was beaten by police and threatened with being killed, accused of being a traitor, this accusation no doubt arising because he was said to have rejoiced at India's defeat in the World Cup cricket match. Eventually, he was exonerated in the courts and the matter came to an end around the end of 1996. … The applicant has provided copies of what he said are court documents relating to charges arising from a fight at his local mosque on 26 June 1999, in which one man was killed and several were injured...The applicant said he was one of several people arrested as a result of false accusations made. According to the documents submitted by the applicant, he was the twelfth of twenty-two people charged…'