SZIFF v Minister for Immigration and Citizenship [2007] FCA 658

FEDERAL COURT OF AUSTRALIA

SZIFF v Minister for Immigration and Citizenship [2007] FCA 658 SZIFF v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 273 OF 2007

BRANSON J

30 APRIL 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 273 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZIFF

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: BRANSON J DATE OF ORDER: 30 APRIL 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The name of the first respondent be changed to Minister for Immigration and Citizenship. 2. The appeal be dismissed. 3. The appellant pay the first respondent's costs fixed in the sum of $1 890.00. 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 273 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZIFF

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: BRANSON J

DATE: 30 APRIL 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION 1 The appellant, a citizen of India, arrived in Australia on 13 July 2005. He claims that he left India and fears to return there because he was persecuted by upper class Hindus and others because he is of a lower caste. His claim for a protection visa was rejected by a delegate of the then Minister for Immigration and Multicultural and Indigenous Affairs and, on review of the delegate's decision, by the Refugee Review Tribunal. 2 The appellant sought review of the Tribunal's decision in the Federal Magistrates Court. In his reasons for judgment, the learned Federal Magistrate summarised the grounds raised by the appellant in his amended application to that court, his written submissions and at the hearing as follows (see SZIFF v Minister for Immigration & Anor [2007] FMCA 106 at [12]-[14]): (a) the Tribunal failed to take into consideration the fact that the appellant was an active member of a social group persecuted by another social group, and had been arrested, detained, kidnapped and bashed in the past; (b) the Tribunal failed to take into account that the authorities of his country gave him no protection but were working under the direct control of the persecuting social group; (c) the Tribunal failed to make findings in relation to the appellant's claims of persecution and the connivance of state authorities, in particular, whether or not these events might occur again and whether or not the appellant had a well-founded fear of persecution on the basis of these claims; (d) the Tribunal did not consider the issues submitted by the appellant; (e) the Tribunal erred by not correctly applying the proper test for, or definition of, 'refugee'; and (f) the Tribunal should have taken account of the fact that his passport had been issued in Goa, rather than in his home state of Haryana. 3 The Federal Magistrate considered each of the above grounds in turn and found that the appellant had failed to demonstrate jurisdictional error on the part of the Tribunal. His Honour dismissed the application.