SZANL v Minister for Immigration
[2004] FMCA 305
•11 May 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZANL v MINISTER FOR IMMIGRATION | [2004] FMCA 305 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicants claiming political persecution in Nepal – no reviewable error found – application dismissed. |
Migration Act 1958 (Cth), s.417
| Applicant: | SZANL |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ751 of 2003 |
| Delivered on: | 11 May 2004 |
| Delivered at: | Sydney |
| Hearing date: | 11 May 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Mr G Kennett |
| Solicitors for the Respondent: | Blake Dawson Waldron |
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.
In the event that the applicant has not paid the setting down fee of $327 payable prior to the hearing, the applicant is to pay that amount or obtain a waiver within 14 days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ751 of 2003
| SZANL |
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 28 March 2003 and handed down on 17 April 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The background facts are set out in paragraphs 1 to 7 of written submissions prepared by Mr Kennett on behalf of the Minister. I adopt those paragraphs for the purposes of this judgment:
The applicant is a national of Nepal (court book, page 74) who arrived in Australia on 14 February 2002. He applied for a protection visa on 12 March 2002 and that application was rejected by a delegate of the Minister on 2 July 2002. On 24 July 2002 the applicant applied to the RRT for review of that decision (court book, page 67).
On 17 April 2003 the RRT handed down its decision, affirming the decision of the delegate (court book, page 66).
The RRT accepted the applicant’s account of his personal background. It also accepted that, as he claimed, he had joined the Communist Party of Nepal (United Marxist Leninist) (CPM(UML)) in 2000 and had participated in the activities of that party including distributing leaflets (court book, pages 79-80).
The applicant claimed that he had been questioned on occasions by members of other parties, but did not assert that this amounted to very serious harassment and the RRT did not regard it as sufficiently serious to constitute “persecution” (court book, page 80).
The main claim which the applicant advanced at the RRT hearing was that he had been “set up” by members of other parties who substituted Maoist leaflets for his CPM(UML) ones, and that as a result he had been pursued by the authorities as a suspected Maoist (court book, page 80). According to the applicant, the police had issued an order for his arrest and attempted to arrest him, but he had escaped and hidden in Kathmandu for several months before coming to Australia.
The RRT did not accept that these claims were true. It gave detailed reasons for finding them implausible (court book, pages 80-82).
Accordingly, the RRT did not accept that the applicant had a well founded fear of persecution in Nepal (court book, page 82).
The application for judicial review filed on 5 May 2003 states the following:
I am not content with the decisions made on my application for a protection visa by the RRT and the DIMIA. I would like to lodge this application at this Court for review of decision. Please consider my application with a positive view.
The obvious and immediate problem with the application is that it does not assert any legal error, let alone any jurisdictional error, on the part of the RRT. It would have been hard for the applicant to resist a motion from the Minister for the application to be summarily dismissed as disclosing no reasonable cause of action. However, the Minister has not so moved and the matter came before me today for hearing. I note that on 2 July 2003 the applicant was given the opportunity to file an amended application on or before 30 September 2003. The applicant has not taken that opportunity. I gave the applicant the opportunity to make oral submissions should he wish to augment his application. He told me that he is dissatisfied with the decision of the RRT. He is concerned that he was not believed. That is understandable but, as I explained to him, it is not possible for me to review the decision of the RRT on the merits. The applicant's concerns about the merits of the RRT decision would be better addressed to the Minister pursuant to s.417 of the Migration Act 1958 (Cth).
The applicant told me that he thought the RRT decision was unfair, but the issues he raised were all issues going to the merits. He told me that the RRT did not look properly at his documents. I asked him which documents he was referring to and he identified the order of arrest he presented to the RRT. That document was referred to by the presiding member on page 76 of the court book. The presiding member deals with the document in her reasons on pages 81 and 82 of the court book. I am satisfied that the document was adequately considered by the presiding member. Her concerns about it were raised with the applicant at the RRT hearing.
The applicant has not identified any jurisdictional error in the decision of the RRT and none is apparent to me. The decision of the RRT is therefore a privative clause decision.
Accordingly, I must dismiss the application.
On the question of costs, the applicant having been unsuccessful, costs should follow the event. Mr Kennett seeks an order for costs fixed in the sum of $2,500 on a party/party basis. That is a reasonable sum in my assessment. The applicant referred to his impecuniosity, but that is not a reason for the court to refrain from making a costs order. I will order that the application is dismissed and that the applicant is to pay the Minister's costs and disbursements of and incidental to the application which I fix in the sum of $2,500.
I also note that the applicant has failed to pay the setting down fee of $327 payable before the hearing of this matter. There is no evidence of the fee having been paid on the file. The applicant says he thinks that he paid it. I will make an order that envisages the possibility that the fee may have already been paid. The third order will be that in the event that the applicant has not paid the setting down fee of $327 payable before the hearing of this matter, the applicant is to pay that fee within 14 days or obtain a waiver.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 12 May 2004
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