SZAFX v Minister for Immigration
[2003] FMCA 397
•9 September 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAFX v MINISTER FOR IMMIGRATION | [2003] FMCA 397 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Pakistan – applicant declining invitation to attend a RRT hearing – applicant acting on advice of his migration agent – migration agent allegedly at fault – no reviewable error found. |
Migration Act 1958 (Cth), s.417
| Applicant: | SZAFX |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ303 of 2003 |
| Delivered on: | 9 September 2003 |
| Delivered at: | Sydney |
| Hearing date: | 9 September 2003 |
| Judgment of: | Driver FM |
REPRESENTATION
Applicant appeared in person
| Counsel for the Respondent: | Mr J D Smith |
| Solicitors for the Respondent: | Sparke Helmore |
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 $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ303 of 2003
| SZAFX |
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 January 2003 and handed down on 20 February 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant is from Pakistan and claimed a protection visa on the basis of a fear of political persecution in Pakistan. The applicant proceeds on the basis of an application filed in this Court on 7 March 2003 and a supporting affidavit filed on the same day. I received the affidavit into evidence. The applicant was not cross-examined on his affidavit.
In that affidavit the applicant alleges that his migration agent was at fault in the conduct of his application to the RRT. The applicant declined an invitation to attend the hearing before the RRT and in his affidavit he states that he did so on the advice of his migration agent.
At the hearing before me today, the applicant added that his migration agent had told him that if he did attend the RRT hearing and was unsuccessful he might be at risk of being taken into immigration detention. In addition, the applicant alleges that his migration agent failed to put before the RRT documentary material that he had given to his migration agent. Even worse, the applicant alleges that his migration agent had somehow confused his personal details, including his date of birth, with someone else's, so that there were serious deficiencies in the material put before the RRT.
The RRT was not aware of any problem or any alleged problem because the applicant had declined the invitation to appear before it. The applicant had been put on notice that the RRT was unwilling to make a favourable decision on the material presented to it and so it is not surprising that when the RRT made its decision in the absence of any appearance by the applicant the decision of the delegate was affirmed.
In simple terms, the material which the applicant had put before the RRT was insufficient to convince the presiding member that the applicant has a well-founded fear of persecution in Pakistan for a Convention reason.
The decision made by the presiding member was plainly open to him on the material before him. There is no legal error by the RRT apparent in the decision of the RRT and in the court book generally.
The applicant now complains that the conduct of his migration agent has deprived him of the opportunity to have his case properly considered. He now seeks that opportunity. He sought an adjournment of the hearing before me so that he could instruct a lawyer to represent him. I refused that application, noting that his application for review was filed on 7 March 2003 and it did not appear to me that a lawyer would be able to present the applicant's case any more clearly than he was doing himself. I explained to the applicant that the issues he was raising did not and could not point to any jurisdictional error having been made by the RRT.
To the extent that the applicant's allegations against his migration agent are true, they may support a cause of action by him against the migration agent. He could bring proceedings for damages against the migration agent in a court of competent jurisdiction. In addition, the applicant could, if he wished, make a complaint against his migration agent to the Migration Agents Registration Authority established under the Migration Act 1958 (Cth) (“the Migration Act”).
Further, the applicant could, if he wished, request the Minister to exercise his power under s.417 of the Migration Act to substitute a more favourable decision than the decision of the RRT. That is a matter beyond the scope of these proceedings. I make no comment on whether the Minister should or should not consider exercising that power in this case.
What is clear in these proceedings is that the allegations the applicant has made against the migration agent cannot assist him. There is no jurisdictional error in the decision of the RRT and no basis for me to interfere with that decision.
I will therefore dismiss the application.
On the question of costs, Mr Smith has submitted that I should make an order for costs. I am persuaded that, consistently with the general principle that costs follow the event, the Minister should receive an order for costs. Mr Smith submits that an order fixed in the sum of $4,000 would be appropriate on a party and party basis. The applicant does not oppose an order for costs in principle and has stated that he would attempt to pay costs by instalments.
It was at all times reasonably clear that this application could not succeed on the basis on which it was presented by the applicant. Simply put, the matters alleged by the applicant could not sustain an application to review the decision of the RRT. The submissions prepared by Mr Smith deal effectively with the matters raised by the applicant. It was, in my view, a relatively straightforward matter and the amount of preparation required was certainly no more than average. In my view an order for costs in the sum of $2,500 would be adequate in this matter and I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $2,500.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 19 September 2003
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