NALR v Minister for Immigration
[2003] FMCA 423
•19 September 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NALR v MINISTER FOR IMMIGRATION | [2003] FMCA 423 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in India – no reviewable error found. |
Migration Act 1958 (Cth), s.36
| Applicant: | NALR |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ659 of 2003 |
| Delivered on: | 19 September 2003 |
| Delivered at: | Sydney |
| Hearing date: | 19 September 2003 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Mr J D Smith |
| Solicitors for the Respondent: | Sparke Helmore |
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 |
SZ659 of 2003
| NALR |
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 25 February 2003 and handed down on 14 March 2003. The RRT affirmed a decision of the delegate of the respondent not to grant the applicant a protection visa. Briefly, the applicant is from India and claimed political persecution in India, he claimed to be a member of the Congress Party of India; he claimed to fear persecution at the hands of supporters of the BJP. The background facts are set out in paragraphs 3 and 4 of written submissions prepared by Mr Smith. I adopt that statement of background facts for the purposes of this judgment:
The applicant is a citizen of India who arrived in Australia on 19 April 2001. On 2 November 2001 a delegate of the respondent refused to grant the applicant a temporary business visa (Class UC) and on 13 December 2001 the applicant lodged an application for a protection visa. The applicant claimed [CB 39-40] that he feared persecution for reason of his membership of a particular political party, namely, the Congress Party of India. He claimed to fear members of the Shiv Shena and RSS extremists as well as mafia groups supported by the BJP. He claimed that in 1993 he was kidnapped by this group and released after paying a ransom. He claimed also that he consistently received life threats and was the subject of extortion.
A delegate of the respondent refused the application on 15 May 2002 and the applicant applied to the RRT for review of that decision. The applicant attended a hearing held by the RRT on 18 February 2003 and the RRT handed down its decision on 14 March 2003.
Mr Smith deals with the decision of the RRT in paragraphs 5 and 6 of his written submissions, I also adopt those paragraphs for the purposes of this judgment:
The RRT firstly found that the applicant was not a credible witness and that none of his substantive claims were credible. On this basis it concluded the applicant did not have a well founded fear of persecution due to any Convention reason. The RRT then found, in the alternative, that even if the RRT were to accept the applicant’s claims as credible even then he did not have a well founded fear of persecution because it would be reasonable for the applicant to relocate within India and if he did so then he would not face persecution.
Both of these findings form the basis for the RRT’s conclusion that the applicant did not satisfy the criterion in s.36(2) of the Migration Act1958 (Cth) and therefore decided to affirm the decision of the delegate.
The presiding member did not believe the applicant's claims. He found that the applicant's claims were not credible. The presiding member went on to find that even if the applicant's claims were credible, he would be able to re-locate safely within India.
In his application for review filed on 21 March 2003, the applicant states that the RRT decision is not correct and ought to be set aside. The applicant asserts that all the materials on the file were not considered before the RRT made its decision. The applicant stated that a detailed submission would be submitted later but nothing further was submitted. The applicant took the opportunity to present oral submissions to me today. The applicant stated that he could not say what legal errors were made by the RRT but he disagrees with the decision. He maintains that he is at risk of harm in India at the hands of BJP supporters, even if he re-locates.
No legal arguments have been advanced by the applicant supporting the application. The assertion that the RRT failed to consider all materials before making its decision has no substance. The decision of the RRT, commencing at page 178 of the court book, is detailed and thorough. The presiding member went through each of the applicant's claims and raised concerns on credibility issues with the applicant. The adverse conclusions made by the presiding member on credibility issues were reasonably open to him on the material before him.
In addition, the alternative conclusion on re-location was reasonably open to the presiding member on the material before him. There is no suggestion of procedural unfairness in the proceedings before the RRT. No jurisdictional error has been demonstrated in the RRT decision. It follows that the decision of the RRT is a privative clause decision. Accordingly, I will dismiss the application.
On the question of costs, the applicant having been wholly unsuccessful and the Minister wholly successful, Mr Smith has submitted that I should make an order for costs. He submits that an order for costs fixed in the sum of $3,500 would be appropriate. The applicant submits that he is impecunious. However, impecuniosity is not a reason for the Court to refrain from making a costs order. Costs in this matter should follow the event. The matter was quite straight forward. The applicant had raised little or nothing in his application to which the Minister could respond. That is reflected in Mr Smith's written submissions.
The applicant had raised a substantial number of issues before the RRT and that is reflected in the size of the court book. Notwithstanding the apparent lack of substance in the application it was reasonable and appropriate for the Minister to be represented by counsel this afternoon.
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 nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 2 October 2003
0
0
0