SZAMJ v Minister for Immigration
[2004] FMCA 123
•26 February 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAMJ v MINISTER FOR IMMIGRATION | [2004] FMCA 123 |
| MIGRATION – Review of Refugee Review Tribunal decision – whether any jurisdictional error – re-hearing on the merits not available – no reviewable error found. Judiciary Act 1903, s.39B Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 211 CLR 476 |
| Applicant: | SZAMJ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 713 of 2003 |
| Delivered on: | 26 February 2004 |
| Delivered at: | Sydney |
| Hearing date: | 26 February 2004 |
| Judgment of: | Scarlett FM |
REPRESENTATION
The Applicant appeared on his own behalf.
| Counsel for the Respondent: | Mr Bromwich |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant is to pay the Respondent’s costs of and incidental to this application in the sum of $4000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 713 of 2003
| SZAMJ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Application
The application before the Court today is an application for review of a decision of the Refugee Review Tribunal. The Refugee Review Tribunal has made a decision affirming the decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs to refuse a protection visa to the applicant.
The applicant tells the Court that he is not satisfied with the decision made by the Refugee Review Tribunal. He asks the Court to make a positive decision for him on his application.
The applicant comes from Nepal. He arrived in Australia on the 29th March 2000. On the 20th April in that year he applied for a protection visa saying that he was a refugee. He said that he feared being persecuted for his political opinion as he had been a member of the Maoist Party in Nepal. He further claims that his association with that particular social group would cause the Government to persecute him should he be made to return to Nepal.
On the 3rd May 2000, a delegate of the Minister refused him a protection visa. Less than three weeks later, on the 23rd May 2000, the applicant applied to the Refugee Review Tribunal for a review of that decision. It took a long while for the Refugee Review Tribunal to give him a hearing date. On that occasion the applicant in fact sought an adjournment of the hearing. Eventually, the matter was heard on the 2nd September 2002. On the 29th September 2002, the Tribunal gave its decision. The Tribunal affirmed the decision of the delegate of the Minister not to grant to the applicant a protection visa.
On the 1st May 2003, the applicant lodged his application with this Court asking for a review of that decision. In his application, the applicant said that he disagreed with the decisions made by the Refugee Review Tribunal and the Department for Immigration and Multicultural and Indigenous Affairs. He asked the Court to consider his application to make a fair decision, and that he wanted to be protected and asked the Court to make a positive decision in his favour. He was not satisfied with the decision of the Refugee Review Tribunal.
The counsel for the respondent Minister, Mr Bromwich, has prepared a written submission asking the Court to dismiss the applicant's application. In his submission, Mr Bromwich set out what he considered to be the law that applies in this case. I propose to quote briefly from the submission which succinctly sets out the law that applies:
The privative clause in section 474 of the Migration Act 1958 applies to protect from review any error falling short of jurisdictional error subject to statutory construction against the provision said to have been breached and provided the general limitations on the operation of privative clauses do not apply so as to exclude it.
The authority for that proposition is the case PlaintiffS157 of 2002 v Commonwealth of Australia (2003) 211 CLR 476, at paragraphs 57 and 64. Counsel for the respondent went on to submit:
Unless there is jurisdictional error which is not protected by section 474 the application for review must therefore fail.
He also submitted:
There is nothing to indicate any error let alone jurisdictional error on the part of the Tribunal. The Hickman1 limitations on the operation of section 474 therefore do not apply.
1 R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598
It should be made clear that an application to the Federal Magistrates Court for review of a decision of the Tribunal is not a re-hearing on the merits of the application. In other words, the Court does not reconsider the facts of the matter. Even if there has been shown to be a factual error in the ordinary course of events this error would be protected by the operation of the Migration Act.
What the Court must consider is whether there has been a jurisdictional error which is not protected by section 474 of the Migration Act. The applicant does not claim that there was any error in his application, only that he wanted the matter considered again.
In his submissions to the Court today, he said that he had attended the hearing of the Refugee Review Tribunal where he was provided with the services of an interpreter. He was not legally represented at the hearing before the Refugee Review Tribunal, and he is not legally represented today.
The services of an interpreter in the Nepalese language have been made available to him at the hearing today. In his submissions to the Court today, the applicant does not say that the Tribunal made any error of law, nor does he say that the Tribunal treated him unfairly, or with bias or acted in bad faith. The applicant does not say that there was any denial of natural justice. His complaint is that the Tribunal did not understand that he was a refugee. He said that he may not have explained his situation clearly. The Tribunal did not understand his difficulties in that he came to Australia as a refugee. The Tribunal did not understand the difficulties that he had trying to explain that he was a member of the Maoist Party in Nepal. He told the Court that he feared that he would be persecuted by the Government if he returned to Nepal.
It seems clear from the decision of the Tribunal that the applicant's claim was not believed in a number of essential elements. The Tribunal found that he was not a Maoist Party member and that this claim had been made solely for providing a ground to apply for refugee status.
Even if the Tribunal had accepted his account, the Tribunal considered that he would only have had a low profile and limited association with the Maoist Party. The Tribunal found that even if they were to accept that he was a low profile Maoist activist, which the Tribunal did not believe, he could have protected himself by relocating to Kathmandu and obtaining assistance there.
I agree with the submissions of counsel for the Minister that there is no error that appears in the reasons of the Tribunal. The Tribunal did not believe him, nor did the Tribunal believe the essential parts of his case that he was a Maoist and that he would be subject to persecution from the Government if he remained in Nepal. The Tribunal found that he did not have a well-founded fear of persecution for a Convention reason.
The respondent submits, and I believe correctly, that there does not appear to be any basis for concluding that there is other than a bona fide attempt to exercise power by the Refugee Review Tribunal. The Refugee Review Tribunal's decision clearly relates to the subject matter of the Migration Act and is reasonably capable of reference to the power to make the decision that the Tribunal made.
It was further submitted that there was no breach of any inviolable limit on the exercise of power. The fact is that the applicant is seeking a re-hearing on the merits of his application and the Court does not have the power to do that. The applicant has not shown any reviewable error on the part of the Tribunal. It follows that the application must be dismissed.
Costs
In this case costs follow the event and I believe that it is appropriate where an applicant has been wholly unsuccessful for an order for costs to be made.
It is for these reasons that I make the Orders as set out at the commencement of this decision.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: C. Soliman
Date: 2nd March 2004.
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