SZKKY v Minister for Immigration and Citizenship [2007] FCA 1772

FEDERAL COURT OF AUSTRALIA

SZKKY v Minister for Immigration and Citizenship [2007] FCA 1772

SZKKY v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 1382 OF 2007

RARES J

25 OCTOBER 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1382 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZKKY

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: RARES J

DATE OF ORDER: 25 OCTOBER 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed. 2. The appellant pay the first respondent's costs fixed in the sum of $2,200. 3. Liberty to any party to restore the matter to the list in respect of any application for the payment of the amount fixed for costs by instalments on seven days' notice, returnable before a registrar. 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 1382 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZKKY

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: RARES J

DATE: 25 OCTOBER 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 This is an appeal from a decision of the Federal Magistrates Court refusing the applicant's claim for constitutional writ relief: SZKKY v Minister for Immigration [2007] FMCA 1043. I adjourned the hearing from yesterday for the reasons set out in the appendix to these reasons. The appellant and his wife arrived in Australia in September 2006. They are citizens of India, originally coming from Kerala State. In October 2006, they applied for protection visas which a delegate of the first respondent refused in November 2006. They applied for a review of the decision to the Refugee Review Tribunal. The tribunal affirmed the decisions not to grant them protection visas in February 2007. 2 In essence, the wife's application was based on her husband's claim. Only the husband applied for constitutional writ relief to the Federal Magistrates Court. He is the only appellant in this Court. 3 In his application for a protection visa, the appellant claimed that from the days of his youth he was an active member of the Indian National Congress (INC) Party and in later years he worked for that party. He claimed that in 1993 activists from the Communist CPM Party attacked INC activists in an incident in which he was injured and admitted to hospital. He spent a significant time recuperating in hospital from those injuries. He then claimed to have returned to active politics and experienced no problems for the succeeding four and a half years until 1998. Then workers in a market at which the INC and CPM unions were rivals for the support of persons working there had a fight. The quarrel arose between the rival unions concerning the loading and unloading of fish at the market. The police intervened and the next day the appellant and his father were violently attacked by armed persons at their house. His father was paralysed as a result of the attack and the appellant was severely injured. In July 2002 the appellant claimed to have received death threats after being falsely accused of responsibility for injuries to a rival in the CPM who had been a prominent figure in the incident in 1993 of which the appellant complained. 4 After this, the appellant went to Kuwait in early 2003 to work. He returned to India in March 2005 on leave from his Kuwaiti job to marry his wife. The marriage occurred in early May 2005. He did not experience any problems until early July 2005 when the political rival, whose injuries in 2002 had led to problems, died. There was a question as to whether it was a suicide or not. The appellant returned to Kuwait six weeks early due to his fear that there may be retribution from CPM members over the death of that rival. 5 After some period in Kuwait, his employer asked him to go to work in Iraq for it, but he was scared to do so because of a fear of bomb blasts and kidnapping of foreigners in that country. He resigned and returned to India in mid 2006. About a week after he returned, he claimed that he had been followed by two men at night. He told the police of this fear, but after that he was very worried and concerned for himself and his family. He claimed not to want to return to Kuwait and to have been advised by an INC member, who was his mentor, that he should leave the country. When he went to Madras to arrange for his travel, he claimed that 'anti-social elements' threw stones at his home and broke windows at night time, abusing his parents. Once his passports were ready, he claimed that he and his wife arranged to leave for Australia. 6 The tribunal found that the appellant's claims indicated that his fear of persecution was at least in part because of his membership of a particular social group, namely the INC, and/or his political opinion. It considered his claim that the police and other state authorities were unwilling or unable to protect him from the persecution he feared because of their corrupt connections with politicians and criminal elements. The tribunal also noted that, more generally, the appellant had claimed that police protection was inadequate. 7 The tribunal found that the INC was the then current ruling party in the national Indian government and was the ruling party in several state governments. It found that the INC had been the ruling party in the appellant's home state of Kerala until the May 2006 election, when a coalition government was formed which included the CPM party. The tribunal found that despite its loss of office, the INC party retained a significant number of seats in the Kerala State Parliament. The tribunal also referred to independent country advice that Kerala is a law-abiding state where legal recourse was available to those who felt threatened and persecuted, and that supporters of registered parties in India who were subjected to political persecution from rival political parties or other agents generally had recourse through the Indian legal system. 8 The tribunal did not accept that the appellant was unable to avail himself of the protection of the relevant authorities of India, including the police. It noted that he had claimed that he had strong political connections with one of the most powerful political parties in India which was, at that time, the ruling party in the national government and several State governments, other than Kerala. Drawing on the independent country information, the tribunal found that the appellant's claim to have political connections and beliefs would, at the very least, not hinder his ability to avail himself of the protection of the police and other relevant authorities in India. 9 The tribunal was not satisfied that the appellant was a person to whom Australia owed protection obligations under the Refugees Convention. It found that he was able to avail himself of the protection of India. Accordingly it affirmed the delegate's decision to refuse a protection visa to each applicant before it. His Honour reviewed the evidence and distilled the essence of the application for constitutional writ relief as follows: (1) The appellant sought to challenge or review findings of fact made by the tribunal. (2) The tribunal was biased.