A49 of 2003 v Minister for Immigration

[2004] FMCA 506

FEDERAL MAGISTRATES COURT OF AUSTRALIA

A49 of 2003 v MINISTER FOR IMMIGRATION [2004] FMCA 506

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – whether applicant should have been told that Tribunal did not accept expertise of report writer.

Migration Act 1958 (Cth), s.36(2)

Moldrich v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 1010

Applicant V346/2000 v MIMIA [2001] FCA 1197
Chan Yee Kin v Minister for Immigration and Multicultural and Indigenous Affairs (1989) 169 CLR 379

Applicant: APPLICANT A49 of 2003

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: MZ 976 of 2003

Delivered on: 20 August 2004

Delivered at: Melbourne

Hearing date: 16 August 2004

Judgment of: Riethmuller FM

REPRESENTATION

Counsel for the Applicant: Ms Ellyard

Solicitors for the Applicant: Mark Clisby

Counsel for the Respondent:

Dr Donaghue

Ms O’Regan

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The applicant’s application be dismissed.

2. The applicant pay the respondent’s costs fixed at $5, 230.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 976 of 2003

APPLICANT A49 of 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This Judgment arises from an application filed by the applicant on

   
   

   3 February 2003 to the High Court, seeking judicial review of a decision of the Refugee Review Tribunal (“the RRT”) on 5 December 2002 affirming the decision of the delegate of the Minister for Immigration & Multicultural & Indigenous Affairs to refuse to grant a protection visa (“the Decision”). The application was transferred to the Federal Court of Australia on 1 July 2003. The matter was transferred to this Court on 4 September 2003.

History

1. The applicant is a citizen of India and a Sikh. He came to Australia on 30 August 2001 and lodged an application for a protection visa with the Department of Immigration & Multicultural & Indigenous Affairs on 24 September 2001.

2. The applicant claims that he cannot return to India as he fears that he will suffer harm due to persecution.

3. On 27 February 2002, a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs refused to grant a protection visa.  The applicant applied for review of that decision by the RRT on

   
   

   8 April 2002.

The RRT’s decision

1. In the decision made by the RRT on 5 December 2002, the RRT affirmed the decision of the delegate not to grant a protection visa. The RRT found that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention (as amended by the Refugees Protocol). Consequently the applicant did not satisfy the criterion under s.36(2) of the Migration Act 1958 (Cth) for the purposes of a protection visa. Specifically the RRT found that:

   a)there were discrepancies between the applicant’s written and oral testimony;

   b)the applicant’s evidence was contradictory to all the independent evidence about Punjab in the last decade;