NANK v Minister for Immigration
[2003] FMCA 547
•21 November 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NANK v MINISTER FOR IMMIGRATION | [2003] FMCA 547 |
| MIGRATION – Review of Refugee Review Tribunal decision – where applicant did not articulate any legal basis for review – where there was no evidence of jurisdictional error by the RRT. |
Migration Act 1958 (Cth), s.91R(1)(b)
Abebe v Commonwealth of Australia (1999) 197 CLR 510
MIEA v Wu Shan Liang (1996) 185 CLR 259
Prahastono v MIMA (1997) 77 FCR 260
MIMIA v Kord (2002) 67 ALD 28
| Applicant: | NANK |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 1386 of 2003 |
| Delivered on: | 21 November 2003 |
| Delivered at: | Sydney |
| Hearing date: | 21 November 2003 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Counsel for the Applicant: | Applicant in Person |
| Counsel for the Respondent: | Stephen Lloyd |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
Applicant to pay the Respondent’s costs in the sum of $4,250.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrate’s Court rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ1386 of 2003
| NANK |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of India. She arrived in Australia on 12 July 1997. On 25 June 2001 she lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 28 February 2002 a delegate of the Minister refused to grant a protection visa and on 27 March 2002 the applicant applied for review of that decision.
The applicant was represented by a migration agent and she appeared at a hearing before the Tribunal on 18 February 2003. The Tribunal came to its decision on 25 February 2003 and handed it down on
18 March 2003. The Tribunal affirmed the decision not to grant a protection visa.
The applicant claimed that she had a well-founded fear of persecution for the convention reason of imputed political opinion. She stated that her parents were close supporters of a local Member of Parliament in the Punjab who sat in the Congress Party interest. It would seem that as a result of their association with this person that the family was given certain advantages in connection with land. The applicant herself claims that she assisted this parliamentarian in the 1997 general election.
The family’s political ally was defeated in the election at the hands of a member of Akali Dal. The applicant claimed that thereafter she was the subject of harassment. She claimed that many attempts were made to abduct her and an attempt to rape her was made. She said that this had occurred in 1996 when some people from what she claimed to be the opposing party had come and asked for her. She had assumed that they had come to rape her because she did not believe they had any other business.
The applicant was unable to provide the Tribunal with any other specific incidences of the type of persecution that would fall within the definition found under section 91R of the Migration Act. The Tribunal pointed out to her that in February 2002 the Congress Party had won a clear majority in the Punjabi State elections and therefore her fears would no longer be of concern. The applicant stated that the Akali Dal remained ruling in her area and she was still frightened of them.
The Tribunal suggested to the applicant that she could relocate within India. She stated that this could not be done because she was a woman alone and would have to live with her family. However, the Tribunal reminded her that in January 2002 she married in Australia another Indian and therefore would not be obliged to live with her family if she returned to India.
The Tribunal found that on the evidence before it, it was not satisfied that the applicant was in fact targeted or persecuted because of her actual or imputed political opinion or for any other convention reason and stated that even if it was wrong in that finding, it believed she could relocate within the sub-continent. She could have relocated even within the Punjab province because of the political power wielded there by the Congress Party.
The application that was filed merely asked that the decision made by the Tribunal be set aside and contains no grounds for so doing. The affidavit in support advises that the applicant is an Indian citizen and that she has lodged an application for the decision of the RRT to be reviewed.
Today before me the applicant's husband appeared. He told me that he believed the decision of the Tribunal was wrong and that his wife had submitted evidence about her problems in India. He did not articulate in any other way a challenge to the Tribunal's findings.
The Tribunal's findings concerning the existence or otherwise of events which might found a valid claim for protection are findings of fact. Such findings are clearly matters for the Tribunal itself, see Abebe v Commonwealth of Australia (1999) 197 CLR 510. This court cannot review the merits of that decision, see MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272. It should also be noted that the decision as to whether discrimination amounts to serious persecution within the confines of section 91R(1)(b) of the Migration Act is a factual matter for the Tribunal alone, see Prahastono v MIMA (1997) 77 FCR 260 at 268; MIMIA v Kord (2002) 67 ALD 28 at [3 per Heerey J] and [53-56 per Marshall and Dowsett JJ].
In the absence of any claim of jurisdictional error and in the absence of any evidence of such from a perusal of the green book, I am unable to grant review of this decision.
I dismiss the application, I order that the applicant pay the respondent's costs which I assess in the sum of $4250.00 pursuant to Part 21 rule 21.05(2)(a) of the Federal Magistrate's Court Rules.
The applicant has indicated that she wishes time to pay these costs.
I have suggested that she speak with the representative of the Minister first and that if there is any problem about this that she bring the matter back to the court.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM
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