SZAIM v Minister for Immigration
[2004] FMCA 30
•28 January 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAIM v MINISTER FOR IMMIGRATION | [2004] FMCA 30 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Sri Lanka – claim rejected as not credible – no reviewable error found. |
| Applicant: | SZAIM |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ509 of 2003 |
| Delivered on: | 28 January 2004 |
| Delivered at: | Sydney |
| Hearing date: | 28 January 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Mr S Lloyd |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the costs and disbursements of and incidental to the application, fixed in the sum of $3,500.
The applicant is to pay the setting down fee of $327, payable prior to the hearing of this matter, within 28 days or obtain a waiver.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ509 of 2003
| SZAIM |
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 21 February 2003 and handed down on 12 March 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The relevant background facts are set out in written submissions prepared by Mr Lloyd for the Minister in paragraphs 3, 4, 5 and 6 of those written submissions. I adopt that statement of background facts for the purposes of this judgment:
In essence, the applicant claimed to fear persecution from the Sri Lankan authorities because he had been imputed with a pro-LTTE political opinion. He also claimed to fear persecution from the LTTE because they believed that he had informed on them to the authorities.
The RRT did not believe the applicant (court book, page 119.3).
The RRT referred to country information which indicated that generally Muslim people were not suspected of being supporters of the LTTE. It also referred to the fact that the applicant had left legally on a passport issued in his own name, which had been regularly obtained (even after he said he had been suspected of being an LTTE supporter) and renewed in Australia. It also observed that he voluntarily returned to Sri Lanka during his studies in Australia in 1999, encountering no problems entering or again departing Sri Lanka (court book, page 120).
The RRT likewise did not accept the applicant’s claims to fear harm from the LTTE. It did not accept that he had any involvement with the LTTE and was not satisfied that he had any problems with them if he returned to Sri Lanka (court book, page 121).
The application for review is deficient in that although it asserts jurisdictional error no particulars are provided.
The applicant did not prepare any written submissions but took the opportunity to present oral submissions. It was obvious from those oral submissions that the applicant is essentially concerned about the outcome of the RRT hearing. He was not believed by the RRT and considers that he should have been.
The applicant maintains that it is possible for a Sri Lankan Muslim to be a Tamil Tiger supporter. He also maintains that he was involved with the Tamil Tigers and for that reason is exposed to a risk of serious harm either by the Tamil Tigers or by the Sri Lankan government. However, those submissions do not advance beyond an argument over the merits of the RRT decision.
As I explained to the applicant, the Court cannot review the RRT decision on its merits. The applicant has not identified any jurisdictional error committed by the RRT. The simple fact is that the applicant was not believed by the RRT. The presiding member found that it was not credible that the applicant had been involved with the Tamil Tigers, and neither had his brother been involved.
The RRT found that the applicant's claims were implausible in themselves and were wholly inconsistent with country information. The case turned upon the adverse credibility findings made by the RRT. Those findings were reasonably open to the RRT on the material before it. There is no jurisdictional error in the decision of the RRT. It follows that the decision is a privative clause decision and the application must be dismissed.
I will dismiss the application.
On the question of costs, the application having been dismissed, Mr Lloyd seeks an order for costs fixed in the sum of $4,400 on a party and party basis. The matter was, however, a relatively simple one. Nothing was disclosed on the face of the application that would call for a legal response of any substance. Nothing was advanced by the applicant in his oral submissions that required any elaboration on Mr Lloyd's relatively simple written submissions. The amount of preparation required in this matter was certainly no more than average. In these circumstances, a costs order fixed in the sum of $3,500 would be adequate.
I will order that the application be dismissed and that the applicant is to pay the respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $3,500. I will also order that the applicant is to pay the setting down fee of $327, payable prior to the hearing of this matter, within 28 days or obtain a waiver.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 2 February 2004
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