SZAMK v Minister for Immigration
[2004] FMCA 293
•23 March 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAMK v MINISTER FOR IMMIGRATION | [2004] FMCA 293 |
| 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
Migration Act 1958, s.474
SBAN v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 591
| Applicant: | SZAMK |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 714 of 2003 |
| Delivered on: | 23 March 2004 |
| Delivered at: | Sydney |
| Hearing date: | 23 March 2004 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| The Applicant: | Appeared on his own behalf |
| Counsel for the Respondent: | Mr Smith |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant is to pay the Respondent’s costs in the sum of $3,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 714 of 2003
| SZAMK |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Application
The application before the court is an application for a review of a decision of the Refugee Review Tribunal made on 17 July 2003. This decision was handed down on 7 August 2003. The Refugee Review Tribunal affirmed the decision of the delegate of the respondent Minister not to grant the applicant a protection visa.
The applicant lodged his application to this court on 1 May 2003.
In his application he said that he was not satisfied with the decisions made by the Refugee Review Tribunal and by the Department of Immigration and Multicultural and Indigenous Affairs. He set out two grounds of his application. I will quote them in full. The first ground is this:
"I would like to appeal that I need a fair decision to ensure that I am satisfied with the decision and I am protected under the UN definition. I must be recognised as a genuine refugee. I was annoyed when I had a hearing at the RRT because I was asked many irrelevant questions."
The second ground of his application is this:
"I was not informed of the relevant information about my country which is very important to my individual circumstances."
The applicant arrived in Australia from his native Nepal on
22 October 2000. He travelled by air on his own Nepalese passport. On 17 November 2000 he applied for a protection visa. He said that he feared for his life if he was required to return to Nepal. The reason that he gave for fearing for his life was that he had been a member of a Maoist group in Nepal. He said that if he were required to return to Nepal he would have been killed.
On 4 May 2001 the delegate of the respondent Minister refused his application for a protection visa. He applied to the Refugee Review Tribunal for a review of this decision. The review was carried out on 11 July 2002 and the decision dated 17 July 2002 was handed down on 7 August 2002. The applicant did not lodge his application for a review of the Tribunal's decision in this court until 1 May 2003. On the face of the application it would appear that it was lodged outside the 28 days allowed by section 477(1) of the Immigration Act.
The respondent lodged a notice of objection to competency, although counsel for the respondent, Mr Smith, was content to argue the application on its substantive evidence. In any event, the applicant seeks to explain the section 477 point in paragraph 13 of a letter dated 3 July 2003 addressed to the registrar of the court. That letter contains 13 numbered paragraphs which the applicant says are his specific claims to appeal at this court. I understand that on that same date the applicant forwarded a similar letter to the Australian Government Solicitor addressed to the solicitor handling the matter, Ms Joanna Selth.
In paragraph 13 of his letter the applicant says that he lodged his application at the High Court of Australia within 28 days after being notified of the decision of the Refugee Review Tribunal. He said that he was included in a test case in the High Court and that his proceedings were discontinued on 10 April 2003. He said and I quote:
The applicants who joined the test case were informed that the valid date to appeal was effective until 6 May 2003.
I do not see any evidence either to support or contradict this contention. In any event I propose to consider the application on its substantive basis. In that letter of 3 July 2003 the applicant set out thirteen paragraphs one of which I have already referred to. Of the other twelve specific claims in that letter it appears to me that only those in paragraphs 2, 3, 4, 5, 10 and 11 are relevant to the matters before the court.
The other specific claims in the other paragraphs appear to me to relate solely to a review of the factual evidence presented to the Tribunal and, as it is well known, an application for review to this court is not a
re-hearing on the merits of the case.
Turning to the specific claims that I do consider to be relevant the applicant says these things, quote:
(2) There was no evidence or material to justify the making of the decision in my case.
(3) The decision-maker has not studied human rights violations and its consequences in Nepal.
(4) The decision involved an error of law whether or not the error appears on the record at the time of decision.
(5) The decision was not made by reference to subject matter, scope and objects of the Immigration Act.
(10) The treatment that I received by the RRT was in accordance with the newer standards of supporting evidence required but relied far too much on country information and media reports. It has also relied too heavily upon cross-examination of me to highlight seeming inconsistencies and memory lapses and then to discount my evidence on that basis.
(11) I find fault with the RRT decision in my case concerning its use of the country study information and realise that a generalised account of political and social affairs reported by an Embassy may be accurate enough for the purpose of informing capitals but it is quite inapplicable to the life and circumstances of a particular person such as myself and acting on it can result in injustice and tragedy.
In his oral submission to the court today the applicant expanded on those points. He claimed that the decision was based on the country information and that the Tribunal did not look to his personal situation. He said he came to Australia just to seek protection, not just a changed country. He said the Tribunal did not give importance to the reasons why he came to Australia to seek protection to save himself. He said the Tribunal told him he could have gone to live in India. His reply to that was that he did not feel safe in India. He also referred to irrelevant circumstances such as high unemployment. He said that under no circumstances could he return to his country and he wanted reasons why the Minister wished to send him back to Nepal.
In reply Mr Smith for the respondent submitted that the Tribunal did consider the applicant's situation in his own country. He said the Tribunal obtained information from various sources and that the Tribunal was entitled to prefer that information to the claims of the applicant. On looking at the applicant's contentions in the specific claims of his letter of 3 July. It appears to me that his claim that there was no evidence or material to justify the making of the decision by the RRT cannot be sustained. I am of a view that the material before the Tribunal does allow the Tribunal to form the view that it did. There is no evidence that the decision maker had not studied human rights violations and their consequences in Nepal, and it is not strictly relevant to the way in which the matter was heard. Whilst the applicant claimed that the decision involved an error of law, he has not shown what error that is. Again, the applicant claimed that the decision was not made by reference to subject matter, scope and objects of the Migration Act, but he does not show how it is that the decision fails that test.
I am not satisfied that the applicant has shown that the RRT relied too heavily on country information, and I agree with the submission by Mr Smith of counsel that the Tribunal was entitled to prefer other evidence than that of the applicant. It is not a ground for review that the Tribunal cross-examined the applicant to highlight seeming inconsistencies and memory lapses. The Migration Act makes it quite clear that the Refugee Review Tribunal only needs to hold a hearing if it is not able to make a decision in the applicant's favour on the basis of the information before it. If the Tribunal were capable of making a decision in favour of the applicant on the basis of his paper work, there would have been no need for a hearing.
Where the Tribunal is not satisfied that it can make a decision in favour of the applicant based on that information then it is hardly surprising that an applicant should be cross-examined or have his or her evidence tested when appearing before the Tribunal. The decision in SBAN v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 591 refers to those circumstances. The applicant has also criticised the Tribunal for relying on country information saying that it was a generalised account of political and social affairs, but it was inapplicable to the life and circumstances and particular persons such as the applicant.
It seems clear that the very purpose of the hearing was to allow the applicant to present to the Tribunal his evidence going to that very point, namely his own individual circumstances. It appears clear from the decision of the Tribunal that the Tribunal was not persuaded by the applicant's evidence. The Tribunal did not accept that the applicant was involved in any political activity that would have brought him to the adverse attention of the authorities and did not accept that a warrant had been issued for the applicant's arrest because of his involvement in any political activity on behalf of the Maoist group. The Tribunal noted that the applicant was able to leave Nepal legally on a passport issued in his own name. The Tribunal found that surprising, if he were in fact a person wanted by the authorities.
Although the applicant has pointed out, perhaps rightly, that the international airport in Nepal is a bit different from the one in Sydney as far as security and computerisation is concerned. The Tribunal was not satisfied that the applicant was of adverse interest to the Nepalese authorities, and the Tribunal was not satisfied that the applicant was a member of the Maoist group or was involved in activities of that group. The Tribunal found that the applicant had demonstrated a very poor knowledge of the history of that particular group. It was for those reasons that the Tribunal found that the applicant did not face a real chance of being seriously harmed by the Nepalese authorities for any convention reason.
The Tribunal found that the applicant did not have a well founded fear of persecution, for reasons of his political opinion if he were to return to Nepal.
In effect the applicant has sought a re-hearing of his application on the merits of the case which is not uncommon with applicants who are not fortunate enough to be legally represented. The Federal Magistrates Court and for that matter the Federal Court are not given a jurisdiction under the Migration Act to conduct a re-hearing of the case by a reconsideration of the facts.
I am not satisfied that any reviewable error has been shown and accordingly I dismiss the application. In this jurisdiction costs follow the event.
As costs follow the event it is appropriate that I make an order for costs.
The applicant is to pay the respondent's costs in the sum of $3500.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 7 May 2004
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