SZAVN v Minister for Immigration - [2004] FMCA 401

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAVN v MINISTER FOR IMMIGRATION

[2004] FMCA 401

MIGRATION – Visa – protection visa – Refugee Review Tribunal – review of a decision of the Refugee Review Tribunal affirming a decision not to grant a protection visa – applicant attended Refugee Review Tribunal hearing and gave oral evidence – applicant from India – whether a well-founded fear of persecution – no reviewable error.

Migration Act 1958 (Cth), s.91X

Applicant:

SZAVN

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ1152 of 2003

Delivered on:

28 May 2004

Delivered at:

Sydney

Hearing date:

28 May 2004

Judgment of:

Scarlett FM

REPRESENTATION

Solicitors for the Applicant:

In person

Counsel for the Respondent:

Ms Allars

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The application is dismissed.
The Applicant is to pay the Respondent’s costs in the sum of $3,500.00.
Transcript of reasons required.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1152 of 2003

SZAVN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

In the matter of SZAVN v the Minister for Immigration and Multi-Cultural and Indigenous Affairs, the applicant is identified by the code letters, SZAVN, because section 91X of the Migration Act prohibits the publication of the name of any applicant for a protection visa. The applicant applied for a protection visa on 21 February 2002 three days after he entered Australia. On 4 July 2002, a delegate of the Minister refused the application. On 24 July 2002, the applicant lodged an application to the Refugee and Review Tribunal asking for a review of the delegate's decision.
The proceedings today involve an application for a review of the decision by the Refugee Review Tribunal. The Refugee Review Tribunal affirmed the decision of the delegate of the Minister not to grant the applicant a protection visa. When the applicant had lodged his application for review by the Refugee Review Tribunal, the Tribunal listed the matter for hearing on 19 May 2003.
On 17 April 2003, the Tribunal wrote to the applicant inviting him to attend the hearing. He chose to attend the hearing and, in fact, gave oral evidence to the Tribunal. On 12 June 2003, the Tribunal handed down its decision affirming the decision of the delegate of the Minister to refuse a protection visa. Consequently, on 24 June 2003, the applicant lodged his application for review in this court.
The applicant is a citizen of India. He claimed that he feared persecution in his native India because of his involvement with various political parties. He had been involved with the Kerela Students Union, which was affiliated with the National Student Union. He said that he had been attacked because both his family and himself supported the Congress Party. He said in his statutory declaration that people had destroyed his property. He had escaped with his life and fears that if he returns to India, his life will be in danger.
The delegate of the Minister found that the applicant did not have a well-founded fear of persecution. The delegate found that the applicant does not have a real chance of convention-based persecution if he returned to India and, therefore, his fear of persecution on return is not well-founded. It is noteworthy that the delegate did not find the applicant to be a credible witness and disbelieved a number of his claims. One of the claims related to his ability to obtain a passport, notwithstanding his convictions for lengthy periods and a number of outstanding warrants and charges.
The delegate also referred to the applicant's claim that he had worked as a seaman. The applicant had provided documentation, or some documentation, relating to his work as a seaman. He had indicated that he did not have other documentation and that he may have left them with a migration agent in India. The delegate did not find that explanation convincing. The matter went to the Refugee Review Tribunal.
The applicant, gave evidence. He told the Tribunal about the fact that he obtained a passport, and he said that he did that by using false documents in which his name was spelt slightly differently and which showed a different date of birth and address. He provided a school certificate showing the different dates of birth and referred to that when he made his submissions to the court today.
Ms Allars, counsel for the respondent, referred to that particular piece of evidence. She commented that the matter had been considered by the Tribunal and noted that there was no reference to the use of the false document to obtain a passport in the findings and reasons for decision given the Refugee Review Tribunal, and that this piece of evidence formed no part of the decision or of the reasons for the decision that the Tribunal made. I accept that submission.
The applicant told the court about various documents relating to his employment as a seaman. He had said that they were genuine, in previous proceedings, and that he also said that he had obtained documents that were false. The reason he obtained the false documents was so that he could obtain a job on a ship which would have enabled him to leave the country.
This was a matter that was taken into account by the Refugee Review Tribunal and has been referred to in page 89 of the court book. The fact is that the Tribunal took an adverse view of the applicant's evidence on this point. It is, of course, open to the Tribunal to do so, having considered the material put to the Tribunal by the applicant. The applicant also referred to the names of political parties, CPI(ML) or the PWG. It was pointed out that PWG was an acronym of the Naxalite Group. This is a matter that was taken into account.
The application by the applicant provided no reason at all as to why the decision of the Refugee Review Tribunal was wrong. The applicant did tell the Court that if he went back to India he had a fear of persecution. He made it clear that he was not involved in any criminal activity, and was aggrieved that the Tribunal did not accept his evidence about membership of the CPI(ML) or the PWG.
These, of course, are all factual matters, and the Court does not have the jurisdiction to re-hear an application on the facts. The Court must conduct a review of the proceedings before the Refugee Review Tribunal to ascertain whether there is any failure to exercise jurisdiction, or any error such as a denial of natural justice that would take the matter outside the realm of a privative clause decision.
I am of the view that all of the material put to the Court today by the applicant was either taken into account by the Refugee Review Tribunal in a way that was open to the Tribunal to consider, or does not raise any suggestion that the Tribunal fell into jurisdictional error. Certainly, any error which goes to jurisdiction as set out in the decision of the High Court of Australia in Plaintiff S157 of 2002 v Commonwealth of Australia. There is, in my view, no reviewable error and the application should be dismissed.
I propose therefore to make an order today that the application before me should be dismissed.
This is a matter where I consider that it is proper to make an order for costs. The respondent seeks an amount of $3500. In my view that is well within the range envisaged by Schedule 1 of the Federal Magistrates Court Rules 2001. I propose to order that the applicant is to pay the respondent's costs in the sum of $3500. I propose to order a transcript of my reasons for this decision.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:

Date: 23 June 2004