SZBJF v Minister for Immigration
[2005] FMCA 608
•10 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBJF v MINISTER FOR IMMIGRATION | [2005] FMCA 608 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in India – no reviewable error found – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.474, 483A |
| Minister for Immigration v Guo & Anor (1997) 191 CLR 559 Randhawa v Minister for Immigration (1994) 52 FCR 437 WAID v Minister for Immigration [2003] FCA 220 |
| Applicant: | SZBJF |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG1778 of 2003 |
| Judgment of: | Driver FM |
| Hearing date: | 10 May 2005 |
| Delivered at: | Sydney |
| Delivered on: | 10 May 2005 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondent: | Mr P Carr |
| 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 $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1778 of 2003
| SZBJF |
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 July 2003 and handed down on 6 August 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The relevant background facts are adequately set out in paragraphs 3‑16 of Mr Carr's written submissions as follows:
The applicant is a citizen of India.
On 30 April 2002, the applicant arrived in Australia.
The applicant is a 27 year old Indian national.
The applicant is of Shia Ismaili ethnicity and of the Muslim faith.
The applicant travelled to Australia legally on an Indian passport in his own name which had been issued on 20 October 1998. The applicant is single and has no children.
On 3 June 2002, the applicant applied for a protection (Class XA) visa. The applicant claimed he suffered persecution in Gujarat, India as a result of his religion.
On 7 August 2002, a Delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused to grant the visa.
On 23 August 2002, the applicant applied for a review of the delegate’s decision to the RRT.
On 9 July 2003, the RRT affirmed the decision not to grant the protection visa.
The RRT’s findings
The RRT accepted the applicant was a citizen of India.
The RRT was not satisfied that the applicant’s stated fears were well founded for the following reasons:
a)The applicant’s family had not been mistreated until early March 2002.
b)The applicant had not suffered any personal mistreatment nor had he been targeted for mistreatment[1].
[1] See paragraph 69 of the RRT’s decision.
c)The Muslim community as a whole is [not] subject to persecution in Gujarat.
d)The Government of India has not embarked upon policies which are designed to mistreat the Muslim community in Gujarat[2].
[2] See paragraphs 72 and 74 of the RRT’s decision.
e)The Government of India has demonstrated a willingness to provide protection to its citizens irrespective of their religious beliefs[3].
[3] See paragraph 75 of the RRT’s decision.
f)Reliable independent information does not support the applicant’s claims that Muslims in Gujarat are denied protection or targeted by the state due to their religion[4].
[4] Se paragraph 75 of the RRT’s decision.
g)The applicant was not willing to avail himself of the protection of Gujarat because he was a Muslim and the authorities favour the Hindus[5].
[5] See paragraph 76 of the RRT’s decision.
h)By dispatching K.P.S. Gill to Gujarat, the RRT was satisfied that the Indian Government had shown its determination to bring violence in Gujarat to an end[6].
[6] See paragraph 78 of the RRT’s decision.
i)Since May 2002, the situation in Gujarat is calm[7].
The RRT was not satisfied that members of the Muslim community in Gujarat being subject to Convention based violence in Gujarat in the foreseeable future were higher than remote[8] and was not satisfied that the applicant’s fears of persecution in the foreseeable future were well founded.
Alternatively, even if the applicant had a well founded fear of persecution there was the option of relocation:
a)It was open and reasonable for the applicant to move to some other part of India to avoid further incidents of communal violence[9].
b)Independent material before the RRT identified there were a number of states where the Government had strong secular and pro minority views[10].
c)Evidence of the applicant’s sisters and other relatives living in other states including the state of Andhra Pradesh[11].
In those circumstances, the RRT was satisfied that relocation to Andhra Pradesh was available to the applicant[12].
[7] See paragraph 79 of the RRT’s decision.
[8] See paragraph 79 of the RRT’s decision.
[9] See paragraph 83 of the RRT’s decision.
[10] See paragraph 83 of the RRT’s decision.
[11] See paragraph 83 of the RRT’s decision.
[12] See paragraph 84 of the RRT’s decision.
I permitted Mr Carr to correct a typographical error in paragraph 13(c) of his written submissions by inserting the word "not" before the word "subject" in paragraph 13(c). As corrected, that paragraph accurately sets out the RRTs findings.
The applicant relies upon an amended application filed on 17 March 2004. That application sets out six grounds of review, but none are particularised. In that respect, the application suffers from the same vice as the original application filed on 1 September 2003. That earlier application contained four unparticularised grounds of review. In substance, the amended application simply adds two additional unparticularised grounds.
The grounds set out in the amended application are recited in paragraph 2 of Mr Carr's written submissions. I adopt that paragraph for the purposes of this judgment:
The applicant has filed an amended application dated 22 March 2004. The grounds identified in that application are as follows:
(a)that the RRT breached the rules of natural justice;
(b)the RRT did not follow relevant procedures;
(c)there was no evidence available to justify the RRT’s decision;
(d)the decision was contrary to law;
(e)the decision involved an error of law;
(f)the decision was an improper exercise of the power conferred by the relevant legislation.
The Minister's written submissions have been attempted to be served by courier upon the applicant, but were returned to the Minister's solicitors. Because the applicant had not had the opportunity to consider those submissions prior to the hearing, I gave the applicant the option of responding to oral submissions from Mr Carr or of having the written submissions read to him by the interpreter. The applicant elected to take the former course and Mr Carr recited his written submissions orally. Having heard those submissions, the applicant did not wish to make any submissions of his own.
On my own reading of the RRT decision, it appears to me that the decision was a particularly careful and thorough examination of the applicant's claims. In my view, that decision is free from any jurisdictional error. I agree with and adopt for the purposes of this judgment paragraphs 24-31 of Mr Carr's written submissions:
The applicant was invited to a hearing before the RRT and accepted the invitation.
The RRT complied with its statutory obligations of procedural fairness under the Act.
It is submitted no issue of procedural fairness arises[13].
[13] See WAID.
Jurisdictional error
The Applicant does not particularise the jurisdictional ground he relies upon except to say, that:
(a)There was no evidence or material to justify the making of the RRT decision; and
(b)The decision is contrary to law.
The Court’s jurisdiction under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) is “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. In this application, the court’s jurisdiction is a general judicial review jurisdiction conferred by s.39B of the Judiciary Act 1903 (Cth), but subject to limitations under Part 8 of the Act. As construed in Plaintiff S157/2002 v Commonwealth of Australia[14], these limitations require jurisdictional error before the Court can set aside a decision of the RRT and order a rehearing.
[14] (2002) 211 CLR 476.
The respondent submits the RRT’s decision does not disclose jurisdictional error and is therefore a privative clause decision within the meaning of s.474 of the Act and that the application should be dismissed accordingly.
Alternatively, the respondent submits the statement of principles identified in the findings and reasonings of the RRT[15] identify correctly the matters the RRT is required to take into account. The RRT was entitled to make the findings made, in particular:
(a)The applicant did not have a well founded fear of persecution[16].
(b)The applicant could avail himself of protection within his country of nationality in another region[17].
Further, the respondent submits the RRT did not commit any jurisdictional error by identifying a wrong issue, ignoring relevant material or relying on irrelevant material[18].
[15] See page 85-89 of the relevant documents.
[16] See Minister for Immigration v Guo & Anor (1997) 191 CLR 559.
[17] See Randhawa v Minister for Immigration (1994) 52 FCR 437 per Black CJ at 440-1.
[18] Minister for Immigration v Young (2001) 206 CLR 323.
I will dismiss the application.
As to costs, Mr Carr seeks an order fixed in the amount of $4,000 on a party/party basis. The applicant did not wish to be heard on costs. I agree that $4,000 would have been reasonably and properly incurred on behalf of the Minister in this matter when assessed on a party and party basis.
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 $4,000.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 13 May 2005
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