SZBJC v Minister for Immigration
[2005] FMCA 468
•13 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBJC v MINISTER FOR IMMIGRATION | [2005] FMCA 468 |
| MIGRATION – Review of Refugee Review Tribunal decision – applicant claiming persecution in India – no reviewable error found – application dismissed. |
| Migration Act 1958, ss.424A, 474, 477(1A) |
| Minister for Immigration v NAMW [2004] FCAFC 264 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 Muin v Refugee Review Tribunal (2002) 190 ALR 301 NAMB v Minister for Immigration [2003] FCA 718 VUAX v Minister for Immigration [2004] FCAFC 158 |
| Applicant: | SZBJC |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG1772 of 2003 |
| Judgment of: | Driver FM |
| Hearing date: | 13 April 2005 |
| Delivered at: | Sydney |
| Delivered on: | 13 April 2005 |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Mr A McInerney |
| 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 $3,850.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1772 of 2003
| SZBJC |
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”). The decision was completed on 9 April 2002 and handed down on 2 May 2002. On the same day a letter was sent from the RRT to the applicant providing him with a copy of the decision[1]. Relevant background facts are set out in written submissions prepared on behalf of the Minister by Mr McInerney. I adopt as background relevant parts of paragraphs 1-14 of those written submissions in this judgment:
[1] court book, page 68
The applicant, a citizen of India, arrived in Australia on 9 July 2000.
On 9 August 2000, the applicant applied for a protection visa.
On 30 August 2000, a delegate of the respondent refused to grant a protection visa to the applicant. In his reasons the delegate referred to independent country information which supported his view that the applicant did not have a well founded fear of persecution for a Convention reason (court book, pages 36-39).
On 18 September 2000, the applicant applied to the RRT for a review of the delegate’s decision.
On 22 March 2002, the applicant gave oral evidence to the RRT.
The applicant gave an account of his concerns and claims at the hearing which was markedly different from that presented in his earlier written claims (court book, pages 74.2, 75.2, 75.8-75.9).
The RRT put to the applicant for his comment independent country information inconsistent with the claims he made (court book, pages 75.3-75.7).
The applicant seeks judicial review of a decision of the RRT made on 9 April 2002, and handed down on 2 May 2002.
The applicant alleged that he had made financial contributions to a Muslim organisation which was blamed for serious disturbances in his state in India in 1997, and that he had been targeted and mistreated by Hindus for reasons of imputed membership of that organisation as a result (court book, page 76.1).
At the RRT hearing the applicant abandoned any claim that he faced now or in the reasonably foreseeable future difficulties in relation to suspected involvement with the LTTE (court book, pages 75.7-76.1).
The RRT made adverse findings of fact in respect to the claims made by the applicant.
In essence, the RRT found that the applicant could relocate within India, and if he did so, he could avoid any particular difficulties he may face in his own local area (court book, page 78.6).
In any event, state protection was available to him within India (court book, page 78.6).
The applicant relies upon his judicial review application filed on 29 August 2003. In that application he sets out a series of asserted grounds but gives no particulars. The application concludes with the statement that details would be provided later. I note that a directions hearing in this matter was conducted before Registrar Kavallaris on 20 November 2003. The applicant attended in person and consented to an order that he file and serve an amended application and any evidence upon which he intended to rely no later than 27 February 2004. That order was not complied with. The Minister has, however, not taken any issue with that non compliance.
The Minister does, however, object to the competency of the application. This is on the basis that the application was filed more than 28 days after the applicant is deemed to have been notified of the RRT decision. It would have been open to the Minister to seek to have the application dismissed summarily. The applicant was in default of compliance with a court order and the grounds advanced in the application are meaningless in the absence of particulars. Nevertheless, the Minister elected to permit the matter to go to a final hearing. In the circumstances, the objection to competency could only be determined after a final hearing on the question of whether the RRT decision is vitiated by any jurisdictional error. In these circumstances, today's hearing is final and not interlocutory.
I invited oral submissions from the applicant this morning. He told me that notwithstanding the various grounds asserted in his application he only has one real concern. His concern is that he had repeatedly put to the RRT the problems confronting Muslims all over India. However, the RRT did not accept his claims and found that whatever problems the applicant faced were localised. That is plainly a contest over the merits of the RRT decision that is beyond the scope of these proceedings. The application fails to raise in any coherent way any asserted jurisdictional error.
In his written submissions, Mr McInerney deals comprehensively with the issues of validity that might have theoretically arisen on the application. I agree with those submissions and adopt paragraphs 15‑26 for the purposes of this judgment:
The RRT made adverse findings of fact in respect of the applicant’s claims which were open on the material before it.
In essence, the application failed because the RRT accepted that state protection was available to the applicant and that, in any event, the applicant could relocate within India to avoid any perceived difficulties he may face in his own local area (court book, page 78.6).
The RRT found, in effect, that:
a)the applicant did not claim that he faced now or in the reasonable foreseeable future difficulties in relation to suspected involvement with the LTTE (court book, pages 75.9-76.1);
b)following the Coimbatore bombing in 1997 (or 1998), and damage suffered to the shop conducted by the applicant and his father, they had returned to their home village (court book, page 74.5);
c)the applicant was not detained or questioned by the police in respect to any contributions he made to Al Umma until three years after the Coimbatore bombing, that is, in 2000 (court book, page 76.4);
d)after questioning by police in 2000, the applicant was released without charge which would hardly have occurred if there was any real belief that he was a member of a banned organisation responsible for serious bomb outrages (court book, page 76.6);
e)at the time the applicant left India, he was not of any serious ongoing interest to the police or other authorities (and nor did the applicant claim to be of such interest) (court book, page 76.9);
f)the applicant’s stated concern of mistreatment from Hindus who were aware that he had previously made financial contributions to Al Umma was limited to his own village, and it was not plausible, or reasonable, that he would be suspected of such contributions or involvement elsewhere, where he was not personally known (court book, pages 76.9-77.1);
g)the RRT was not satisfied that Muslims generally were persecuted in India or did not have access to state protection (court book, page 78.5);
h)the applicant could obtain safety or protection elsewhere in India (court book, page 78.6);
i)it was satisfied that the applicant could avoid any difficulty in his own local area by relocating in hi own state, or within India (court book, pages 77.3 and 78.6);
j)it was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention (court book, page 79.2).
The RRT preferred the independent country information to the evidence given by the applicant.
The weight to be given to the independent country information by the RRT was a matter quintessentially for it: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 281-282; 291-292.
The independent country information to which the RRT had regard fell within the exclusion s. 424A(3)(a) of the Act: Ministerfor Immigration v NAMW [2004] FCAFC 264 at [127]-[139].
The independent country information was raised with the applicant in the delegate’s reasons for his decision (court book, pages 36-38), and by the RRT during the course of the RRT’s hearing (court book, pages 75.3-75.7).
In those circumstances it was incumbent on the applicant to address the effect of the independent country information to which reference had been made: see Muin v Refugee Review Tribunal (2002) 190 ALR 301 at 633 [131]-[133] per McHugh J, 664 [276] per Hayne J (with whom Gummow J agreed: see [171] at 640 and 670 [301] per Callinan J; cf Gleeson CJ at 610-612 [26]-[31], Gaudron J at 618 [64] and Kirby J at 653-655 [226]-[236].
There was no practical injustice to the applicant which flowed from the manner in which the RRT conducted its hearing, with the effect that relief would be refused on discretionary grounds: VUAX v Minister for Immigration [2004] FCAFC 158 at [56]-[57]; NAMB v Minister for Immigration [2003] FCA 718 at [80].
There is no basis for any contention, as propounded in the application filed by the applicant, that the RRT acted in bad faith. That allegation should be rejected as having no foundation.
The RRT understood its task, properly addressed the claims made by the applicant, and carried out its task according to law.
No jurisdictional error is disclosed in the reasons of the RRT, or the procedures followed by it.
Because the RRT decision is free from any jurisdictional error it is a privative clause decision. I accept that the application before the Court was not filed within the time prescribed by s.477(1A) of the Migration Act 1958 (Cth) (“the Migration Act”). It follows that both for that reason and also because of the operation of s.474 of the Migration Act, the application must be dismissed.
I will therefore dismiss the application.
The application having been dismissed, costs should follow the event. On behalf of the Minister, Mr McInerney seeks a costs order fixed in the sum of $3,850. This represents approximately 75 per cent of the Minister's solicitor and client costs. I am satisfied that costs of $3,850 have been reasonably and properly incurred when assessed on a party and party basis. The applicant indicated that he might require time to pay the costs. I will not impose any time limit on the payment of the costs. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,850.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 14 April 2005
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