SZAEE v Minister for Immigration
[2003] FMCA 436
•12 September 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAEE v MINISTER FOR IMMIGRATION | [2003] FMCA 436 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant fearing harm from gangsters in India – no reviewable error found. |
Migration Act 1958 (Cth), s.417
| Applicant: | SZAEE |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ167 of 2003 |
| Delivered on: | 12 September 2003 |
| Delivered at: | Sydney |
| Hearing date: | 12 September 2003 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Mr J D Smith |
| 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 $2,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ167 of 2003
| SZAEE |
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 13 January 2003 and handed down on 6 February 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant comes from India and arrived in Australia on 27 February 1997. He lodged an application for a protection visa on 26 October 2001. That application was refused by a delegate on 5 March 2002 and the applicant applied to the RRT for review of that decision. The background circumstances are set out in paragraphs 3, 4 and 5 of written submissions filed on 10 September 2003 on behalf of the Minister by Mr Smith. I adopt those paragraphs as an accurate statement as to the background of this matter.
The applicant, a citizen of India, who arrived in Australia on 27 February 1997 applied for a protection visa on 26 October 2001 after his student visa had been cancelled. On 30 January 2002 a delegate of the respondent refused to grant the applicant a visa and the applicant applied to the RRT for review of that decision.
The applicant gave oral evidence to the RRT on 9 January 2003 and the RRT handed down its decision affirming the decision of the delegate on 6 February 2003.
The basis for the application for a protection visa was that the applicant feared persecution in India in the form of extortion by Muslims. He claimed that Muslim gangsters had come to his father to ask for money and threatened to kill him if he did not pay. He also claimed that his family’s house which was next to a mosque had been damaged by Hindus seeking to damage that mosque. Further, he claimed that on a return visit to India in February 1999, four to five young Muslim men came to the family house on the evening he arrived and asked for money. The applicant alleged that he told them he would give them money later and that a few days later when he had gone to Delhi he was contacted by the Muslims who threatened his father in order to obtain his number.
In essence, the applicant claims to fear persecution at the hands of Muslim gangsters demanding money. He told me this afternoon that he is concerned for his family in India. The application for review states that initially the applicant had a student visa which was cancelled and he wished to finish his education. He has completed a diploma in tourism. The applicant states that his main concern is that his family is in trouble and he needed to be educated so that he could assist his family in India. This was the reason apparently that the applicant applied for a protection visa. The applicant has a sister, a brother-in-law, a nephew and a niece in Australia, and is married to a New Zealand citizen. The applicant asks that the Court look carefully at his case.
The application does not advance any legal challenge to the decision of the RRT. When I asked the applicant what he said was wrong with the decision of the RRT, he told me that he had no complaint about the decision of the RRT or his treatment by the RRT. He thought that he was given a fair hearing and he could not point to any legal error in the decision of the RRT. The applicant's concern is that he would like to remain in Australia and to be able to assist his family in India.
I invited the applicant to consider whether he should request that the Minister should intervene pursuant to s.417 of the Migration Act 1958 (Cth). That is beyond the scope of these proceedings, but it appears to me that the applicant's only concern is with the outcome of his protection visa application, not with any legal issue. The applicant has not raised any legal issue in his application. No error, let alone any jurisdictional error, is apparent from the court book.
In the circumstances, there is no basis upon which I could interfere with the decision of the RRT. I will therefore dismiss the application.
On the question of costs, Mr Smith has sought an order for costs fixed in the sum of $3,000. The applicant tells me that he is not working and he would need time to pay. As I explained to the applicant, the arrangements for the payment of costs is something that he can discuss with the Minister's Department. Impecuniosity is not a reason for the Court to refrain from making a costs order.
This was a particularly simple matter in terms of the issues raised in the application and at the trial of the matter. Mr Smith was, of course, not to know that the applicant would not raise any legal issues at trial. Mr Smith accordingly prepared written submissions in the expectation that there might be some effort on the part of the applicant to raise a legal issue.
In addition, the Minister has incurred expense in the preparation of the court book. Nevertheless, in my view, in the circumstances of this matter, a modest order for costs is called for. I will order that the application be dismissed and that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $2,000.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 3 October 2003
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