FEDERAL COURT OF AUSTRALIA SZKPZ v Minister for Immigration and Citizenship [2008] FCA 232 SZKPZ v Minister for Immigration & Anor [2007] FMCA 1751 SZKPZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 2017 OF 2007 BUCHANAN J 6 March 2008 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 2017 OF 2007 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZKPZ Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: BUCHANAN J DATE OF ORDER: 6 MARCH 2008 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal is dismissed with costs. 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 2017 OF 2007 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZKPZ Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: BUCHANAN J DATE: 6 March 2008 PLACE: SYDNEY REASONS FOR JUDGMENT BUCHANAN J: 1 The appellant is a citizen of India. He is 25 years old. He arrived in Australia on 21 August 2006 and on 25 September 2006 made an application for a protection (Class XA) visa. In his application he claimed to have been forced, in 2001, out of a business he conducted with his brother by a Bilal Patel who threatened to kill him and his brother if their business was not sold to him at a grossly undervalued price. In 2005 the same Bilal Patel, he said, was involved with a Prakesh More, a restaurant owner, in attacking the appellant who, as a result, caused them to be arrested. The appellant claimed he rejected approaches to him to drop the case and subsequently learnt that Prakesh More was planning to kill him. 2 A delegate of the Minister for Immigration and Citizenship ('the Minister'), who considered the appellant's claims for a protection visa concluded that the threats of harm to the appellant did not constitute persecution for a Convention reason. On 22 December 2006 the appellant's application for a protection visa was refused by the delegate who said: 'The applicant was not targeted for harassment as a member of any identifiable social group, but as an individual. He has not been singled out and persecuted by or with the tacit acceptance of the Indian government, only by a couple of individuals who have connections to people with political influence. The alleged persecution is the result of grievances between specific individuals as a result of the applicant pursuing formal complaints against individuals associated with criminal activities. The applicant has lodged a number of complaints with police and a court case is pending, or was pending prior to his departure from India. Based on the claims made by the applicant I find that the harm feared does not involve systematic and discriminatory conduct as outlined in section 91R of the Migration Act. The applicant's claims derive from personal grievances, which have culminated in physical assault on a number of occasions. There is no evidence that the applicant is unable to avail himself of the protection of his country. The evidence of his own account is that he can and has availed himself of the protection of the Indian authorities. The harm feared is therefore not Convention-related.' 3 On 23 January 2007 the appellant applied to the Refugee Review Tribunal ('the RRT') for review of the delegate's decision. The RRT conducted an oral hearing on 14 March 2007. On 24 April 2007 the RRT handed down a decision affirming the decision of the delegate not to grant a protection visa. Like the delegate, the RRT did not regard the appellant's claims as ones involving persecution for a Convention reason. It said: 'In his oral evidence in the hearing the applicant has disclosed and confirmed that when he has approached the relevant authorities in the legal system both the Indian police and Courts – have intervened to give him justice. He stated that Mumbai Police Inspector Gokul Patel had arrested the alleged perpetrators. The applicant has confirmed that the Indian Court is still hearing a case involving the applicant and his brother. The alleged persecutors are out on bail pending the Court's resolution of the case against them. Furthermore, the Tribunal can find no evidence that the applicant has been persecuted or harassed or targeted for being a member of a particular or identifiable social group. The applicant has confirmed in the hearing that he did not remove himself at any stage to a different part of India to avoid the claimed persecution. The Tribunal categorises his alleged persecution as a personal business dispute with certain individuals which, from evidence the applicant has given in the hearing, will be resolved in the Indian legal system in due time. Therefore, the Tribunal finds that he has not been singled out for persecution with the tacit acceptance or approval of the Indian government or its authorities.' 4 The appellant made an application for judicial review in the Federal Magistrates Court of Australia ('the FMCA'). It is an essential condition for the grant of relief pursuant to such an application that some jurisdictional error be identified in the decision of, or processes followed by, the RRT. In the event such an error is identified the matter may be remitted to the RRT for further attention. 5 On 27 September 2007 the FMCA dismissed the application for judicial review (SZKPZ v Minister for Immigration & Anor [2007] FMCA 1751). The Federal Magistrate identified no jurisdictional error in the decision or process of the RRT. The Federal Magistrate said (at [16]): 'In this case, it is clear that the Tribunal did accept the applicant's evidence. This is not a case where the Tribunal found that the applicant was not a credible witness, far from it. However, the applicant's evidence, taken at its highest, does not establish a case to show that the applicant can seek protection under the Refugee's Convention as amended by the Refugees protocol. The Tribunal, on its examination of the evidence, found that the applicant had not established discrimination against him on any of the five Convention bases, race, religion, nationality, political opinion, or membership of a particular social group.' 6 On 9 October 2007 the appellant filed an appeal in this Court against the judgment of the FMCA. The only statement that resembles a ground of appeal is: '3. The RRT erred in failing to consider all claims and issues put forward by me.' 7 This contention was not advanced to the FMCA and has no support in the materials relevant to the appeal. It is without any apparent substance. No ground of appeal is advanced, moreover, which suggests, much less identifies any error in the reasoning of the FMCA. 8 Although directions were made for the filing of written submissions, none were provided by the appellant. At the hearing of the appeal, the appellant made no oral submissions, saying he relied on what he had written on earlier occasions. The result was that the appeal was effectively not prosecuted at all but treated as some sort of formality. 9 The central difficulty for the appellant's claims has been consistently revealed by the decisions made against him. Accepting his claims at face value, nevertheless the matters of which he complains do not amount to persecution for a Convention reason. No jurisdictional error appears from the rejection of his claims for a protection visa and the FMCA was correct to so find. 10 The appeal must be dismissed. It is appropriate to dismiss it with costs. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan. Associate: Dated: 6 March 2008 Counsel for the Appellant: The appellant appeared in person Solicitor for the Respondent: Clayton Utz Date of Hearing: 20 February 2008 Date of Judgment: 6 March 2008