MZXCU v Minister for Immigration
[2006] FMCA 301
•15 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXCU v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 301 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – application dismissed – s.477(1A) and res judicata and issue estoppel. |
| Federal Magistrates Court Rules 2001 Migration Act1958 (Cth) |
| Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Minister for Immigration & Multicultural & Indigenous Affairs v Eshetu (1999) 197 CLR 611 Linprint Pty Ltd v Hexham Textiles Pty Ltd (1991) 23 NSWLR 508 at 513 and 521 |
| Applicant: | MZXCU |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1104 of 2005 |
| Judgment of: | Hartnett FM |
| Hearing date: | 15 February 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 15 February 2006 |
REPRESENTATION
| The Applicant: | No appearance |
| Counsel for the Respondent: | Ms H.M. Riley |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed pursuant to:
(a)rule 13.03A(c) of the Federal Magistrates Court Rules 2001; and
(b)section 477(1A) of the Migration Act1958 (Cth); and
(c)generally, in the finding that no jurisdictional error attends the decision of the Refugee Review Tribunal handed down on 1 August 2003.
The applicant pay the costs of the first‑named respondent fixed in the sum of $5250.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1104 of 2005
| MZXCU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
History
The applicant is a citizen of India who was born on 27 March 1981. He arrived in Australia on 15 August 2002 from New Zealand. He arrived on a transit visa. He lodged an application for a protection (class XA) visa on 15 August 2002. The applicant was refused by a delegate of the Minister on 14 October 2002.
On 11 November 2002 the applicant, assisted by a migration agent, applied to the Refugee Review Tribunal (the tribunal) for review of the delegate's decision. The tribunal conducted a hearing on 3 July 2003 at which the applicant gave oral evidence by video from Shepparton. In a decision handed down on 1 August 2003 the tribunal affirmed the decision under review.
The applicant applied to the Federal Magistrates Court for review of the tribunal decision on 26 August 2003 under the pseudonym SZBIM, being matter number SZ1 739 of 2003. That application was dismissed by Raphael FM on 14 April 2005 due to the applicant's non‑attendance at the hearing.
The application before the court this day was filed on 6 September 2005. The applicant has been called and fails to answer the call. Pursuant to Rule 13.03A of the Federal Magistrates Court Rules 2001 and in default of appearance by the applicant, the court can dismiss the application. The court shall do so on that basis but following and in addition to a consideration of the application on an undefended basis.
Tribunal hearing
The tribunal had before it the department's file, including the protection visa application and the delegate's decision record. The tribunal also had regard to the material referred to in the delegate's decision and other material available to it from a range of sources. The applicant when giving his oral evidence to the tribunal was assisted by an interpreter in the Punjabi language.
The history as provided by the applicant was as follows:
i)he was of Punjabi ethnicity;
ii)he was a Sikh;
iii)he had never married;
iv)he was engaged in farming before coming to Australia;
v)from January 2002 until he came to Australia in August 2002 he was living in New Zealand;
vi)there is no future for his race in India;
vii)Sikhs are treated as second‑class citizens;
viii)he believes that if he returned to India he would be harmed by the government and people of India;
ix)the Indian authorities wanted to eliminate Sikhs and they are not wanted in the region.
The tribunal asked the applicant why he had left India. The applicant replied that he was in fear of the police and the government. He said that someone had given the police false information that he had an unlicensed weapon.
He said that the police had come and harassed him many times, the first being in February 2000, and that they had arrested and held him in custody for 10 to 15 days. During such time in custody he had been beaten and tortured. He said he had paid a bribe to secure his release. He said that after this incident the police had come to his house about five or six times, the last being in June 2001, and they had harassed and beaten him.
The applicant was asked whether he had contacted a lawyer in relation to the various matters which he alleged, and he replied that he had not. The tribunal asked the applicant why he had not gone somewhere else in India where he would not be harassed by the police. The applicant said the police throughout India had the report that he had an unlicensed weapon and would harass him.
The tribunal made comment that it thought it unlikely the police service in every state in India would be interested in this report about the applicant and that they would all pursue him. The applicant replied that in March 2001 he had gone to a place in Himachal Pradesh near the Punjab border and that the police had come and taken him away because of the report that he had an unlicensed pistol. The tribunal told the applicant that it did not find convincing his story.
The tribunal asked the applicant why he had not applied for protection during the six months he was living in New Zealand. The applicant responded that the people who helped him to leave India made him put in writing that he would not do anything illegal or wrong in New Zealand. The tribunal told the applicant that it was not illegal or wrong to apply for protection from persecution.
The applicant said that the people who brought him to New Zealand threatened they would send him back to India and tell the police there if he tried to stay in New Zealand. The tribunal commented that it was not convinced that if the applicant genuinely feared persecution in India he would have been deterred from applying for protection in New Zealand. The tribunal noted that the applicant had applied for protection in Australia the same day he arrived here and it appeared that he was familiar with the concept of refugee status.
The tribunal's decision
The tribunal did not accept the applicant's claims that Sikhs are discriminated against in India, do not have freedom of speech and are not protected under Indian law. The tribunal did not accept the applicant's claims about the false report of an unlicensed weapon and the surrounding events. The tribunal noted that the applicant had been unable to identify who had made the report or why they would have done so.
The tribunal considered it implausible that the police would arrest the applicant and hold him without charging him for 10 to 15 days and torture him merely because they had received a report that he had an unlicensed pistol. The applicant did not present the claim that he had been arrested and harassed because he was suspected of holding an unlicensed weapon until his tribunal hearing.
The tribunal did not accept that the applicant would not have mentioned this claim to his adviser at an earlier time if it was genuinely a significant reason for his claiming protection in Australia. If the applicant had been genuinely fearful, the tribunal considered he would have sought refugee status in New Zealand.
The tribunal found that the applicant had fabricated his claims about the treatment he received from the Indian authorities to enhance his claims for refugee status and found that he had not been persecuted in the past for reason of his religion, his ethnicity, his political opinion or a political opinion imputed to him or any other Convention reason. The tribunal found the applicant's fears were not well‑founded.
Having considered the evidence as a whole, the tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol. The applicant was found not to satisfy the criterion set out in section 36(2) of the Migration Act1958 (Cth) for a protection visa.
Consideration
Section 477 of the Migration Act1958 (Cth) provides that applications to the Federal Magistrates Court in respect of privative clause decisions are to be made within 28 days of the notification of the decision. No extensions of time may be granted. However, if a decision contains a jurisdictional error, it is not a privative clause decision and the time limit does not apply (Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476). The application is not particularised and contains the same pro forma grounds as the application made earlier on 26 August 2003.
The applicant cannot demonstrate that there is a jurisdictional error in the tribunal's decision. On the evidence before it, including country information, it was entirely open to the tribunal to reject the applicant's claim that Sikhs generally face persecution in India. The tribunal found that the applicant fabricated his claims and the applicant's contentions in this proceeding go to merits review, which is not permissible by this court. The tribunal is entitled to assess the applicant's credibility and reject the applicant's claims if it considers them to be implausible (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611).
The time limit in s.477 of the Act applies and this application is significantly out of time. It has no merit and there cannot be established jurisdictional error. In addition, the present application is barred by the principles of res judicata and issue estoppel. Another application on the same grounds in respect of the same tribunal decision was previously dismissed by Raphael FM. This is so, even though the application was dismissed without a hearing (Linprint Pty Ltd v Hexham Textiles Pty Ltd (1991) 23 NSWLR 508 at 513 and 521 per Kirby J).
For all of the above reasons, the application shall be dismissed with costs.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate: Tracey Jones
Date: 15 February 2006
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