SZLYB v Minister for Immigration and Citizenship [2008] FCA 1802

FEDERAL COURT OF AUSTRALIA

SZLYB v Minister for Immigration and Citizenship [2008] FCA 1802

Migration Act 1958 (Cth) s 424A SZLYB & Anor v Minister for Immigration & Anor [2008] FMCA 1349 SZLYB and SZLYC v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1589 of 2008

MARSHALL J

27 NOVEMBER 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD1589 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLYB

First Appellant

SZLYC

Second Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: MARSHALL J

DATE OF ORDER: 27 NOVEMBER 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed. 2. The appellants 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. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD1589 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLYB

First Appellant

SZLYC

Second Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: MARSHALL J

DATE: 27 NOVEMBER 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellants have appealed from a judgment of a Federal Magistrate delivered on 26 September 2008 (SZLYB & Anor v Minister for Immigration & Anor [2008] FMCA 1349) which dismissed their application for judicial review of a decision of the Refugee Review Tribunal. The Tribunal had affirmed a decision of a delegate of the first respondent Minister to refuse the first appellant a protection visa. The second appellant's claims relied on her being part of the first appellant's family group. 2 The appellants are husband and wife from the state of Gujarat in India. The appellant husband's fear of persecution is grounded in his contention that he had financial problems and owed a very large debt. As a result, he claims that Muslim extremists who were unable to recover the debt want to kill him. 3 The appellants state that they own a factory that supplies submersible pumps and spare parts. The appellant husband says that his factory employed 15 people, including 12 Muslim workers. 4 The appellants say that in January 2001, there was an earthquake which destroyed their home and part of the factory requiring extensive renovation and borrowings. This led to the appellant husband's mother suffering 'deep mental shock' and the appellants incurred medical expenses for her treatment. 5 The appellants say that in 2002 there were riots in Godhra in India that involved a dispute between Hindus and Muslims and, as most of the appellant husband's employees were Muslim, the business almost ceased to operate. He claims that during the riots, the factory was damaged and materials were stolen. The appellants contend that this caused them economic, social and mental harm. The appellant husband claims that his debts rapidly increased and he was unable to meet his debts. He says that as most of the suppliers were Muslim, they sent extremists to his factory to collect the debt. He states he was tortured and he and his family were pressured. He states that when he refused to meet their demands they assaulted him and he was severely injured. The appellants say that because their lives were in danger they borrowed money from friends to flee. They say that they were forced to leave their young son in India. 6 The appellant husband also says that he cannot avail the protection of the police as it is 'run by money' and approaching the police would prove futile for a person in his position. 7 The appellants' grounds of appeal appear not to have been drawn by a lawyer and they are not particularised. In their notice of appeal, the appellants advance the following three grounds: 1. His Honour Federal Magistrate failed to hold that Refugee Review Tribunal made jurisdictional error when adopted harsh approach to well —founded fear. The Tribunal misapplied the express and implied meaning of term "Well-founded fear and Refugee from the UN Convention in relation to applicant's fear of persecution The Tribunal wrongly applied the law to the facts as found in relation to the seriousness of harm that constitutes [persecution] as a member of a particular social group and due to religious belief persecution. The appellant's claim was based on his religious belief. 2. Hon. Federal Magistrate failed to hold that the Tribunal has failed to carryout the real chance test as required by the law but has resorted to balance of probabilities and other types of tests. 3. The Appellant claims that there was certain information used by the Tribunal to make decision. The Appellant was not provided opportunity to comment. The Tribunal made a jurisdictional error when it did not disclose the information in accordance with s 424 A (I) of the Migration Act.