SZELK v Minister for Immigration and Citizenship [2007] FCA 1235

FEDERAL COURT OF AUSTRALIA

SZELK v Minister for Immigration and Citizenship [2007] FCA 1235

SZELK v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 428 OF 2007

LINDGREN J

15 AUGUST 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 428 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZELK

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: LINDGREN J

DATE OF ORDER: 15 AUGUST 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant 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 428 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZELK

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: LINDGREN J

DATE: 15 AUGUST 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION AND PROCEDURAL HISTORY 1 The appellant appeals from a decision of the Federal Magistrates Court of Australia given on 2 March 2007. That Court dismissed the appellant's application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal). The Tribunal had affirmed a decision of a delegate of the predecessor of the first respondent (respectively, the Delegate and the Minister) refusing to grant a Protection (Class XA) visa to the appellant. 2 The Tribunal accepted that the appellant was of Indian nationality and was a Hindu. He was born in Hyderabad. He attended school for 18 years, including high school and junior college in Hyderabad. He lived at one address in Hyderabad from at least 1994. 3 The appellant first arrived in Australia on 24 August 1997. From 1997 to 1999 he was at college in Sydney, and again from 1999 until 2001, completing Diplomas in Business Management and Information Technology. However, he returned to India for a visit in October 2000, coming back to Australia on 26 February 2001. His visit to India was therefore for some four to five months. During that time he lived again in Hyderabad. 4 It was not until 29 September 2003 that the appellant lodged his application for the Protection (Class XA) visa. On 23 October 2003 a delegate of the Minister found that the appellant did not have a well-founded fear of persecution. On 12 December 2003 the appellant applied to the Tribunal for a review of that decision. On 30 June 2004 the Tribunal found that it did not have jurisdiction to review the decision, because the application had been received outside the prescribed time limit. On 5 May 2005, the Federal Magistrates Court quashed the delegate's decision of 23 October 2003 and ordered that the appellant's application for the Protection visa be redetermined according to law. 5 On 19 August 2005, the Delegate found that the appellant did not have a well-founded fear of persecution. On 7 September 2005, the appellant applied to the Tribunal for review of the Delegate's decision. By a Decision Record signed on 9 December 2005 and handed down on 5 January 2006, the Tribunal affirmed the Delegate's decision. On 31 January 2006, the appellant applied to the Federal Magistrates Court for review of the Tribunal's decision. On 2 March 2007 that Court dismissed the application and ordered the appellant to pay the Minister's costs. On 20 March 2007, the appellant filed the notice of appeal that commenced the present proceedings.