SZAER v Minister for Immigration
[2003] FMCA 384
•28 August 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAER v MINISTER FOR IMMIGRATION | [2003] FMCA 384 |
| 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.430
McPhee v S. Bennett Ltd (1925) 52 WN (NSW)
Re Minister for Immigration; ex parte Durairajasingham (2000) 74 ALJR 405
| Applicant: | SZAER |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ175 of 2003 |
| Delivered on: | 28 August 2003 |
| Delivered at: | Sydney |
| Hearing date: | 28 August 2003 |
| Judgment of: | Driver FM |
REPRESENTATION
Applicant appeared in person
| Counsel for the Respondent: | Mr J D Smith |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
Application 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.
The applicant is to pay the hearing fee of $327 within 21 days, or obtain a fee waiver.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ175 of 2003
| SZAER |
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 29 December 2002 and handed down on 30 January 2003. The RRT affirmed a decision of a delegate of the respondent Minister, not to grant to the applicant a protection visa.
The applicant came to Australia from India and claimed persecution in India for political reasons. He claimed an association with radical groups in India arising out of his student days and stated that he had been a supporter of the Naxalite movement, although he no longer is. He claimed support for an associated group, the Peoples War Group. He claimed to be afraid of attacks either by Naxalites or by the state government in Anhandra Predesh, where he said he lived, should he return to India.
The applicant arrived in Australia on 12 April 2001 on a visitor visa. On 25 May 2001 he lodged an application for a protection visa, claiming a fear of persecution by left wing political parties in India. On 18 June 2001, a delegate made a decision refusing to grant the applicant a protection visa. The applicant applied for a review of that decision to the RRT.
Briefly, the applicant's claims were not accepted by the RRT. The applicant elected not to attend a hearing before the RRT. On the basis of the material that he had put before the RRT, the presiding member was not satisfied that the applicant had a well founded fear of persecution. I take this to be a conclusion by the presiding member that whatever fear of persecution the applicant may have had, it was not well founded. It is apparent from a reading of the reasons for decision of the RRT that the presiding member had grave doubt about the genuineness of the applicant's claims due to the vagueness of those claims and inconsistencies in the applicant's account, including matters as basic as where he was born.
In his application for review in this Court, the applicant asserts that the decision of the RRT was wrong and involves jurisdictional errors. He relies on his application and supporting affidavit and written submissions that were filed in court today. Those submissions recite in very general terms asserted jurisdictional issues, but no particulars are provided. The applicant appeared personally before me and in his very short oral submissions he stated, in effect, that the decision of the RRT was wrong and that the situation in his home state should have led to a different and more favourable decision by the RRT. As I told him, this amounts to an attack on the merits of the RRT decision and, in proceedings in this Court, I can only look at the question of whether any jurisdictional error had been made by the RRT.
Mr Smith, for the respondent Minister, in his written submissions filed on 25 August 2003 at paragraphs 6, 7 and 8 of those submissions, submits that there is no jurisdictional error in the decision of the RRT and none has been established by the applicant. I agree with and adopt those submissions for the purposes of this judgment:
The applicant’s claim is that the RRT did not consider material questions of fact. The applicant does not state anywhere what those facts are. However, it is clear that the RRT considered each of the claims made by the applicant and dealt with each of them.
In the statement of reasons prepared under s.430(1) of the Migration Act 1958 (Cth), the RRT set out, in full, the statement provided to both the RRT and to the delegate (court book, pages 93-95). After referring to the delegate’s decision, some of the procedural aspects of the application for review, and some country information, the RRT turned to its findings and reasons. In this section of its statement, the RRT summarised the applicant’s claims (court book, page 101) before dealing with each of them. As stated above, the RRT was not satisfied of the veracity of the claims. That was a matter for the RRT: Re Minister for Immigration; ex parte Durairajasingham (2000) 74 ALJR 405, 417 per McHugh J; McPhee v S. Bennett Ltd (1935) 52 WN (NSW) 8,9 per Jordan CJ.
Once the RRT had rejected each of the applicant’s claims, there was nothing upon which it could be satisfied that the applicant satisfied the criteria for the grant of the visa. On that basis, the RRT was obliged, as it did, to affirm the decision under review.
There is no error in the RRT's decision and certainly no jurisdictional error. In the circumstances, the decision of the RRT is a privative clause decision and I must dismiss the application.
The applicant having been wholly unsuccessful and the Minister having been wholly successful, it is appropriate that the Minister should receive his legal costs consistent with the general principle that costs follow the event. Mr Smith has submitted that I should fix costs in the sum of $4,000 on a party/party basis. The applicant did not wish to make any submission to me on the question of costs.
A fairly significant amount of preparation has been required in the matter in order to complete the book of relevant documents, although the application and written submission prepared by the applicant would have not have caused Mr Smith, or his instructors, much trouble in preparing submissions by way of response. The matter is relatively straightforward and the hearing has been quite short. This matter is one of somewhat less than average complexity. In the circumstances, a cost order in the sum of $3,000 would be appropriate.
I will order that the application be dismissed and that the applicant pay the respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $3,000.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 9 September 2003
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