SZAFC v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAFC v MINISTER FOR IMMIGRATION [2003] FMCA 380

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant fearing harm at the hands of creditors in India – whether the applicant abandoned written claims of persecution in favour of oral claims made at the RRT hearing – whether the RRT erred in concluding that the applicant did not fear persecution by reason of membership of a particular social group.

ADMINISTRATIVE LAW – Jurisdiction – whether the Federal Magistrates Court has jurisdiction to review a migration decision under the Administrative Decisions (Judicial Review) Act 1977.

Administrative Decisions (Judicial Review) Act 1977 (Cth)
Migration Act 1958 (Cth)

NAAM v Minister for Immigration [2003] FMCA 55
Plaintiff S157 of 2002 v Commonwealth (2003) 195 ALR 24

Applicant: SZAFC

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ220 of 2003

Delivered on: 5 September 2003

Delivered at: Sydney

Hearing date: 5 September 2003

Judgment of: Driver FM

REPRESENTATION

Applicant appeared in person

Counsel for the Respondent: Mr M Wigney

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application is dismissed.

2. 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

SZ220 of 2003

SZAFC

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 9 January 2003 and handed down on 5 February 2003.  The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.

2. The applicant is from India.  She arrived in Australia on 30 July 2001 on a business visa, having previously travelled to Australia in February 2001.  The applicant applied for a protection visa on 13 June 2002.

3. I should say at the outset that at the hearing today the applicant told me that she had difficulty in dealing with or renewing her business visa.  She told me that she was advised by her migration agent to apply for a protection visa on the basis that this would give her time to sort out the problems with her business visa.  The applicant told me this from the bar table and it was not sworn evidence.  Nevertheless, the applicant, I believe, gave me this information honestly and sincerely.  That information itself casts serious doubt on the genuineness of her application for a protection visa.  Nevertheless, that information alone is not a reason for me to refrain from reviewing the decision of the RRT.

4. The applicant relies upon her application filed on 24 February 2003.  In that application she stated that a detailed submission would be filed later but no submission was filed.  The applicant told me that she had been unable to prepare written submissions.  The application states the following grounds for the review: first, that…