Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
SZMBA v Minister for Immigration and Citizenship [2008] FCA 1331
SZMBA v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 1011 OF 2008
GILMOUR J
29 AUGUST 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NSD 1011 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZMBA
Appellant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE: GILMOUR J DATE OF ORDER: 29 august 2008
WHERE MADE: SYDNEY
THE COURT ORDERS THAT:
1. The appeal be dismissed. 2. The appellant pay the first respondents costs to be taxed if not agreed.
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 1011 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZMBA
Appellant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE: GILMOUR J
DATE: 29 august 2008
PLACE: SYDNEY
REASONS FOR JUDGMENT 1 This is an appeal against a judgment of a Federal Magistrate of 23 June 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") handed down on 21 February 2008. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant.
PROCEDURAL HISTORY 2 The appellant is a citizen of India who arrived in Australia on 30 July 2007. On 10 September 2007 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 24 October. On 14 November 2007 the appellant applied to the Tribunal for a review of that decision. 3 Before the Tribunal the appellant claimed to fear persecution in India due to his political opinion and religion. What follows is a summary of the claims made by the appellant in support of his application. He formed a committee, along with other people, for the distribution of disaster relief in Tamil Nadu after the 2004 tsunami. 4 He came into conflict with Mr Karupanaithy ("K"), a member of the Bharatiya Janata Party (BJP) and leader of the committee. K gave preference to Hindus in distributing aid and neglected the affected Muslims and Christians. The police were unwilling to intervene in this situation as they were working in conjunction with K. A friend of the appellant called George was appointed as leader to organise a protest against K. George then went missing and he was appointed as leader in his place. 5 He was later harassed by "rowdies" acting on K's orders after they discovered that he would be leading the protest. When he discovered that K had ordered George to be kidnapped and murdered he refused to lead the protest. 6 On one occasion he was attacked by K's men while returning home from a wedding. He was cut on his left hand and his two-wheeler was set on fire. He suffered burns and bleeding on his right leg and was only left alone when a bus drove along the side of the road. 7 There was also an attempt to kidnap his daughter but she was saved by her teacher. 8 The Tamil Nadu Towheed Jamaath organised meetings and a procession in which he allegedly took part to support the reservation of government seats for Muslims. He was again attacked mercilessly by K's men. 9 He flew to Bangkok in Thailand in March 2006 and took a job for 10 months. He believed he would not have any difficulty visiting India so he returned for a short time in February 2007. During that time he and his wife were attacked while coming home from the cinema. He then returned to Bangkok after this incident but again travelled to India when his wife was recovering from an abortion in a nursing home. On 15 July 2007 he returned to Bangkok. In July 2007 he telephoned his family but nobody answered the call. He now does not know where his family is. He then decided to come to Australia.
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