SZAXO v Minister for Immigration
[2003] FMCA 580
•4 December 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAXO v MINISTER FOR IMMIGRATION | [2003] FMCA 580 |
| MIGRATION – Review of Refugee Review Tribunal – where applicant has been residing in Australia since 1978 – where applicant acknowledged he was not owed protection obligations under the Refugee Convention – where significant humanitarian grounds exist. |
Migration Act 1958 (Cth), s.36(2)
| Applicant: | SZAXO |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 1283 of 2003 |
| Delivered on: | 4 December 2003 |
| Delivered at: | Sydney |
| Hearing date: | 4 December 2003 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Counsel for the Applicant: | Applicant in Person |
| Counsel for the Respondent: | Mr J Smith |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $3500.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 1283 of 2003
| SZAXO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
In this matter the application was filed on 8 July 2003 in respect of a decision of the Refugee Review Tribunal that was not determined until 21 August 2003, and in respect of which the interview with the applicant did not take place until 1 August 2003. The applicant who was in immigration detention at the time has explained his prescience by reference to some assistance he received from a person of his acquaintance presumably in the detention centre. On that basis alone the application before me would not be competent. But with the consent of the Minister I propose to grant leave to amend the application so that it is deemed to have been made upon receipt of the Tribunal's decision and not some weeks beforehand.
The applicant is a citizen of Tonga. He arrived in Australia on
15 November 1978 as a stowaway. His history thereafter is set out in his submissions but it seems to have involved a period of time in Western Australia before returning to Sydney and undertaking a number of jobs. It is therefore wrong of the Tribunal to say, as it does at CB [85] that he has been unemployed since his arrival in Australia.
In about 1980 the applicant applied for permanent residence in Australia pursuant to what, if I recall correctly, was the last general migration amnesty granted by the Federal Government. He says that after his application had been processed he was arrested and remanded in custody in respect of offences for which he was later found not guilty. When he returned from incarceration all his records had been lost and he did not take up the matter of his permanent residence again.
The applicant appears to have lived reasonably peaceably in Australia from that time until in 2003 when he came to the attention of the police as a result of his non-compliance with an apprehended domestic violence order. Following hard upon that he came to the attention of the Immigration Department, although it may well be true that the officers of the department who took him into detention assumed he was someone else, he having what is well known to be a very common name in Tonga.
In any event having been taken into immigration detention he was persuaded that his only possibility of relief was to claim protection which he did on 2 June 2003. On 10 June 2003 that application was refused by a delegate of the Minister and the matter was the subject of a review by the Refugee Review Tribunal.
The applicant claimed to have a well-founded fear of persecution for the convention reason of political opinion. He stated in his application that although he had not been to Tonga for some 25 years he believed that if he returned he would become active in the pro-democracy party and would thus incur the wrath of those in power. However, by the time his application got to the review stage he stated, as is set out at CB [86], that he did not consider himself as a refugee. Today, before me he confirmed that he had been put up to the application by an acquaintance and that he did not have any political opinion, particularly an opinion about Tonga.
As the Tribunal said in its findings and reasons at CB[87]:
“The applicant’s claims as set out in the protection visa application and as stated to the Tribunal are significantly different. The applicant claims in his protection visa application that he feared returning to Tonga because of his political opinion. However in the hearing before the Tribunal and in the written documents to the Tribunal the applicant did not make any such claim. In the hearing the applicant disassociated himself from the claims in his protection visa application. On the basis of the applicant's evidence as given in the hearing the Tribunal does not accept that the applicant has a political opinion or would engage in political activity on returning to Tonga that would give rise to persecution of the applicant by the authorities in Tonga.”
It is clear from that finding and from the confirmation which the applicant gave me of the truth of his situation that the Tribunal could not have erred in coming to the conclusion that the applicant was not a person to whom Australia has protection obligations under the Refugees Convention and therefore he was not a person who satisfied the criterion set out in section 36(2) of the Migration Act 1958.
This is an unfortunate matter. The Tribunal recognised that the applicant may have good arguments to make on humanitarian grounds and it may well be that the applicant can obtain the necessary advice in order to make the best possible case to the Minister. These proceedings however must be dismissed. I so order and I order that the applicant pay the respondent's costs which because of the simplicity of the matter, I assess in the sum of $3500 pursuant to Part 21 Rule 21.02 (2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Raphael FM
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