NAII v Minister for Immigration
[2003] FMCA 330
•23 July 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAII v MINISTER FOR IMMIGRATION | [2003] FMCA 330 |
| MIGRATION – Review of a decision of the Refugee Review Tribunal – refusal of a protection visa – no legal issue raised by the applicant – no reviewable error found. |
Migration Act 1958 (Cth), s.483A
| Applicant: | NAII |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ224 of 2003 |
| Delivered on: | 23 July 2003 |
| Delivered at: | Sydney |
| Hearing date: | 23 July 2003 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Mr G R Kennett |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ224 of 2003
| NAII |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 27 November, 2002 and handed down on 19 February, 2003. The RRT decided to affirm a decision of a delegate of the Minister not to grant to the applicant a protection visa.
The applicant is from Pakistan and made a claim for a protection visa on the basis of a fear of religious and possibly also political persecution. His claims were based upon his Shi’a Muslim faith and the fear he holds that harm will come to him in Pakistan by reason of that faith and his activities with a Shi’a Muslim group.
The relevant background information is set out in the respondent's written submissions filed by Mr Kennett on 21 July 2003 in paragraphs 1 through to 5 of those submissions. I am satisfied that that is an accurate description of the background to this matter. I adopt those paragraphs for the purposes of this judgment:
On 27 November 2002 the RRT handed down a decision which affirmed the earlier decision of a delegate of the respondent not to grant a protection visa to the applicant.
The applicant is a national of Pakistan who arrived in Australia in June 1995 and applied for a protection visa on 19 October 2000. His application was rejected by a delegate of the Minister on 7 November 2000 and he applied for review of that decision by the RRT on 12 December 2000.
Briefly, the applicant claimed that he was an active member of the Shi’a Muslim community in his district and had been harassed and placed on a “hit list” by a Sunni Muslim organisation. He claimed that the Government could not protect him.
The RRT accepted that the applicant was a Shi’a Muslim but did not accept that he had been persecuted in the past for that reason, or that he had a well founded fear of persecution for that reason in the reasonably foreseeable future. It gave reasons for this conclusion which were, in brief:
a)It did not believe the applicant’s claim that he had been part of an organisation called “Shi’a Association” because it found aspects of that claim implausible. It therefore did not accept that the Applicant had been involved in the activities he claimed or that he had been harassed for that reason.
b)The applicant’s history since leaving Pakistan did not suggest that he had left that country in fear of persecution. He had travelled to New Zealand on a student visa and had spent eighteen months there without applying for protection. He had then travelled to Australia and applied for a spouse visa. He had applied for a protection visa only after that application had been refused and the final avenue of review exhausted.
c)Independent evidence, and the applicant’s own history, indicated that Shi’a Muslims were not discriminated against in Pakistan.
d)The material before the RRT indicated that Pakistani authorities were willing and able to provide the applicant with adequate protection against any threat he faced from extremist groups.
For these reasons the RRT was not satisfied that the applicant was a person to whom Australia owed protection obligations under the Refugee’s Convention.
The application filed in the Federal Court on 29 January 2003 raises a number of factual issues but does not on its face raise any legal issues. I invited the applicant to put submissions to me on what, if any, legal errors were made by the RRT in its decision, but he presented to me only factual issues which, in his view, support a conclusion that a different decision should have been made by the RRT. The applicant's submissions simply go to the merits of the RRT decision. As I pointed out to the applicant, he is entitled to ask the Minister to substitute a more favourable decision for that of the RRT but this Court cannot review the decision of the RRT on its merits.
Mr Kennett relied upon his written submissions. The substance of those submissions is contained in paragraphs 6, 7, 8, and 9 of those submissions. I agree with Mr Kennett's submissions and I adopt those paragraphs for the purposes of this judgment:
The application filed in this Court on 30 December 2002 asserts that “the facts of my case were not considered on the objective realities”, and goes on to state facts which, it is apparently claimed, the RRT should have found. It is then asserted that “my case was not decided on its merits”.
In substance, the applicant contends that the RRT made the wrong decision on the merits of his claim. That contention does not give rise to any claim for relief in the exercise of the Court’s jurisdiction under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”).
If the applicant’s claim that his case “was not decided on its merits” is intended to indicate that the RRT was biased, or did not make a bona fide attempt to grapple with the material before it and decide the issues that arose, there is no foundation for such a claim.
It is apparent that the RRT addressed the issue which the Migration Act required it to address – namely whether the applicant was a person to whom Australia owed protection obligations under the Refugee’s Convention. The RRT considered the material before it with care and gave the applicant a proper opportunity to put his case to it. For the reasons which it gave, the RRT did not accept that the applicant had left Pakistan to escape persecution or that he faced a real chance of persecution if he was to return. That was a conclusion of fact which the RRT was entitled to reach and which this Court would not revisit. The RRT’s decision that the applicant did not meet the criteria for a protection visa was not attended by any relevant error.
The conclusion is that the application must be dismissed.
On the question of costs, Mr Kennett has sought an order for costs but has not submitted that any particular amount should be fixed. The matter was simple in that no legal issues were raised by the applicant. On the other hand, significant physical preparation was required, given that a substantial body of material was required for the court book. In my view, an order for costs in the sum of $3,000 would be appropriate in this matter. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,000.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 7 August 2003
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