SZLTL v Minister for Immigration and Citizenship [2008] FCA 1096

FEDERAL COURT OF AUSTRALIA

SZLTL v Minister for Immigration and Citizenship [2008] FCA 1096

Federal Magistrates Court Rules 2001 Federal Court of Australia Act 1976 (Cth) Migration Act 1958 (Cth) Randhawa v MILGEA (1994) 52 FCR 437 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Abebe v The Commonwealth (1999) 197 CLR 510 SZLTL v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 459 of 2008

REEVES J

24 JULY 2008

DARWIN

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 459 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLTL

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: REEVES J

DATE OF ORDER: 24 JULY 2008

WHERE MADE: DARWIN

THE COURT ORDERS THAT:

1. The application for leave to appeal be dismissed. 2. The applicant is ordered to pay the first respondent's costs of the application fixed in the sum of $2,500.00. 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 459 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLTL

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: REEVES J

DATE: 24 JULY 2008

PLACE: DARWIN

REASONS FOR JUDGMENT

BACKGROUND 1 This is an application for leave to appeal from a judgment of Federal MagistrateSmith delivered on 18 March 2008 dismissing, for lack of arguable grounds, the applicant's application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal'). The Tribunal's decision was delivered on 20 November 2007 and affirmed the decision of a delegate of the first respondent not to grant a protection visa to the applicant. 2 The Federal Magistrate's order was made following an application to show cause filed by the first respondent under Rule 44.12 of the Federal Magistrates Court Rules 2001 and since this is an interlocutory order, leave to appeal is required under section 24(1A) of the Federal Court of Australia Act 1976 (Cth). To be granted leave, the applicant must demonstrate two things: firstly, that the Federal Magistrate's decision is attended by sufficient doubt to justify leave; and secondly, that the applicant would suffer substantial injustice if leave were not granted. 3 I shall briefly set out the background to the application before considering the Federal Magistrates decision. 4 The applicant is a citizen of India who arrived in Australia on 3 February 2007. He lodged an application for a protection visa on 15 March 2007 and set out the basis of his claims to fear religious persecution in Tamil Nadu in a statement attached to his visa application. In short he claimed that, because of his Muslim religion and his active involvement with two Muslim organisations (Tamilnadu Tawheed Jamaath (TNTJ) and Tamilnadu Muslim Munnaetra Kalaham (TMMK)), he was attacked on multiple occasions by extremist members of two Hindu parties (the Hindu Bharatiya Janata Party (BJP) and Rashtriya Swayamsevak Sangh (RSS)). 5 The applicant went on to claim that although he moved to Bangalore to avoid harm he was harassed there as well; that he left India for Malaysia in 2000 but when he returned two years later he was assaulted and hospitalised; that he then went into hiding and later moved to Bangkok; and that he found upon his last return to India that a friend had been murdered by extremists.