FEDERAL COURT OF AUSTRALIA SZMEY v Minister for Immigration and Citizenship [2008] FCA 1810 SZMEY v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL NSD 1348 of 2008 MIDDLETON J 17 NOVEMBER 2008 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1348 of 2008 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZMEY Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: MIDDLETON J DATE OF ORDER: 17 NOVEMBER 2008 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the costs of the first respondent fixed at $1,700.00. 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 NSD 1348 of 2008 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZMEY Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: MIDDLETON J DATE: 17 NOVEMBER 2008 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an appeal against a judgment of Federal Magistrate Raphael of 13 August 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') of 15 April 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. BACKGROUND 2 The appellant is a citizen of India who arrived in Australia on 1 April 2007. On 12 April 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 22 June 2007. On 9 July 2007 the appellant applied to the Tribunal for a review of the delegate's decision. BEFORE THE TRIBUNAL 3 Before the Tribunal, the appellant claimed to have a well founded fear of persecution due to his membership of the Nai caste and his membership of the Congress Party. 4 In summary, the appellant claimed to fear persecution in India arising from his membership of a lower caste (the 'barber' or 'Nai' caste) and due to his political opinion (his involvement in the Congress Party). · The appellant claimed that a number of people who attended his hair salon and who belonged to the Bharatiya Janata Party ('BJP') refused to pay him and then abused and threatened him and his family. · A second incident occurred when a group, including some of the same people from the first incident, came to his salon and he refused to serve them. The attackers threatened that they would set up another member of his caste in business against him to ensure his business closed down. He complained to the police after this incident, but they did nothing, telling him it was a personal matter between himself and his customers. · The appellant then sought the assistance of friends who were members of the Congress Party who promised to support him if he joined their party, which the appellant did. · The appellant claimed that he was attacked entirely because he insulted members of the BJP, and that BJP people were in each and every city. · After the second attack, the appellant was advised by friends to come to Australia. He gave evidence that he would have moved to Ahmedabad, where his wife and children now live, had he not received this advice, and claimed it may not be safe for him 'because BJP people know each other'. 5 Before the Tribunal, the appellant had requested an adjournment of the hearing in order to obtain evidence of his membership of the Congress Party. On 24 December 2007, the appellant forwarded to the Tribunal a letter attesting to his membership of the Congress Party and copies of his parents' death certificates. The Tribunal arranged for a further hearing to be held on 11 February 2008. The appellant attended the second hearing and informed the Tribunal he had nothing to add to the evidence he had already given. 6 In summary, after considering the evidence before it: · The Tribunal accepted the appellant was a member of the Nai caste, the second lowest caste, and that the appellant joined the Congress Party in 2007 after two separate attacks on him. · The Tribunal accepted that the two attacks on the appellant involved serious harm and systematic and discriminatory conduct and that, as a result, the appellant closed his business and planned on relocating. The Tribunal also found that: - It did not accept that the attacks upon the appellant, or any consequent inability to derive a proper income due to the attacks, were due to any Convention reason. - The appellant's own evidence was that the people who attacked him threatened that they would set up another Nai person in business against him. The Tribunal found this to be indicative of a personal grudge and was not satisfied the attacks were directed at the appellant due to his caste. - There was no evidence of persecution arising from his race. - There was no political reason for the attacks, given the appellant's evidence that he only joined the Congress Party after the attacks and gave no evidence of any prior political affiliation. Nor did the Tribunal consider he would be attacked for reason of his political opinion should he return to India. · The Tribunal did not accept the police discriminatorily withheld assistance from him for a Convention reason, but because they saw it as a civil dispute. · The Tribunal found that the appellant could reasonably be expected to relocate within India. The Tribunal considered the appellant's evidence that he was thinking of moving to Ahmedabad. His wife and child were presently living there, and his profession and language would not present difficulties for his relocation elsewhere in India. The Tribunal did not accept the appellant would not be safe in a large city such as Ahmedabad due to BJP members 'knowing each other'. Further, the appellant could nonetheless access state protection. 7 Accordingly, the Tribunal was not satisfied the appellant was a person to whom Australia had protection obligations under the Refugee Convention. THE FEDERAL MAGISTRATES COURT 8 In an application for judicial review filed on 28 April 2008 in the Federal Magistrates Court, the appellant in essence claimed that: · the Tribunal's decision was in breach of its obligations pursuant to s 424A of the Act; · the Tribunal made an error of law and denied the appellant procedural fairness in making its decision; and · the Tribunal should have given consideration as to whether the evidence given by the appellant might support the application on a basis not articulated by the appellant, being that the thugs that confronted and chased him were from the BJP. 9 The Federal Magistrate, in considering the Tribunal's decision in light of the claims made by the appellant, found that there was no information before the Tribunal that would require particulars to be put to the appellant under s 424A of the Act. His Honour held that in any event, s 424A(3)(ba) of the Act precluded any such ground from arising. His Honour noted that the Tribunal gave the appellant an opportunity to comment on adverse information under s 424AA of the Act, and gave the appellant a lengthy adjournment to provide further materials. 10 In relation to the second ground the appellant disputed the Tribunal's finding that he could relocate within India and contended that he should have been given an opportunity to respond. The Federal Magistrate found that the delegate's decision had raised the issue of relocation and therefore the question of relocation could not have been a surprise to the appellant. His Honour noted that the appellant and been given ample time and opportunity to respond in this regard. 11 Finally, the Federal Magistrate stated that the Tribunal had been satisfied that the appellant's assailants were BJP members, but was not satisfied that the particular attacks had been motivated by any political motive. In essence, the Tribunal had rejected the claims on the evidence before it. 12 The Federal Magistrate was unable to find any jurisdictional error in the decision of the Tribunal and dismissed the application. THE PRESENT APPEAL 13 In the notice of appeal the appellant claims that the Tribunal decision was in breach of s 424A of the Act. 14 At the hearing of the appeal before me the appellant provided no further submission in support of this ground. 15 The notice of appeal does not identify any legal error in the decision of the Federal Magistrate. 16 The appellant has provided no particulars of the adverse information said to give rise to a breach of s 424A of the Act. In the Federal Magistrates Court, the appellant particularised this complaint as adverse information contained in his protection visa application. As the Federal Magistrate found, the Tribunal was not required to put to the appellant any such information due to the exception contained in s 424A(3)(ba) of the Act. In any event, the Tribunal did not rely on any adverse information in the appellant's protection visa application in its reasons for decision. 17 The Federal Magistrate was correct to conclude that no breach of s 424A of the Act arose. 18 There was no legal error in the Federal Magistrate's findings on the other grounds asserted in the proceedings below, nor was there any jurisdictional error in the Tribunal decision under review. CONCLUSION 19 In my opinion, Federal Magistrate's conclusion was correct. 20 The appeal should be dismissed. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton. Associate: Dated: 28 November 2008 Counsel for the Appellant: In person Solicitor for the First Respondent: Australian Government Solicitor Appearing for the First Respondent: Ms Buchanan Date of Hearing: 17 November 2008 Date of Judgment: 17 November 2008