SZAAZ v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAAZ v MINISTER FOR IMMIGRATION [2003] FMCA 133

MIGRATION – Review of decision of the Refugee Review Tribunal – application for a protection visa – whether the applicant has a well founded fear of persecution for Convention reasons – whether the Tribunal’s decision could be categorised as being ‘unreasonable’ according to the Wednesbury test.

Migration Act 1958 (Cth), ss.91R(1)(b), (c), 474

Associated Provincial Picture Houses Limited v Wednesbury Corporation (1948) 1KB 223
Chan v Minister for Immigration (1989) 169 CLR 379
NASL v Minister for Immigration [2003] FMCA 72
Pulhofer v Hillingdon London Borough Council [1986] 1 AC 484
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2

Applicant: SZAAZ

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 1020 of 2002

Delivered on: 2 April 2003

Delivered at: Sydney

Hearing date: 2 April 2003

Judgment of: Raphael FM

REPRESENTATION

Solicitors for the Applicant: Mr Michael Jones

Counsel for the Respondent: Dr M Allars

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. Application dismissed.

2. Applicant pay the respondent’s costs in the sum of $4,250.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1020 of 2002

SZAAZ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application for the review of a decision of the Refugee Review Tribunal made on 22 August 2002 and handed down on 11 September 2002.  The applicant is a citizen of India.  He arrived in Australia on 18 October 1999.  He lodged his application for a protection (class XA) visa with the Department on 4 November 1999.  On 5 June 2000, a delegate of the Minister refused to grant the visa and the applicant applied for review of that decision on 15 June 2000.

2. The applicant was accepted to be a Tamil who was born in Tamil Nadu and was at the time of the Tribunal hearing approximately 47 years of age.  He gave a history of a number of incidents in which he came into contact with Indian law enforcement organisations, commencing in 1986.  The first incident involved an intercast riot in which fighting broke out and nine people on the applicant’s side were killed.  He was charged with attempted murder and instigating riots but was released.

3. In 1990, the applicant attended a demonstration in Madras for which official approval had been refused.  A number of persons were arrested, including the applicant who was charged with blocking transport, breaching the ban and continuing with a demonstration that had not been permitted, illegally entering the governor’s bungalow, damaging property and hindering government officers in the exercise of their duties.  He was imprisoned for 3 months.

4. In 1991, about two months after the assassination of Rajiv Ghandi, the applicant was arrested and questioned.  He was detained for three months for the purposes of investigation and was released in 1992.  He was then placed on daily reporting conditions.

5. Some time later, the applicant left Tamil Nadu and went into Kerala.  There he…