SZBRF v Minister for Immigration
[2005] FMCA 1109
•4 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBRF v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1109 |
| MIGRATION – Review of decision of RRT – where the applicant’s claim was completely lacking in information – where the applicant did not articulate any ground for review – where the decision of the Tribunal appears clear, concise and appropriately argued. |
| Federal Magistrates Court Rules 2001 |
| Applicant: | SZBRF |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2194 of 2003 |
| Judgment of: | Raphael FM |
| Hearing date: | 4 August 2005 |
| Date of Last Submission: | 4 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 4 August 2005 |
REPRESENTATION
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
Application dismissed
Applicant to pay the respondent's costs assessed in the sum of $4200 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2194 of 2003
| SZBRG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of India. He arrived in Australia on 23 March 2003. On 17 April 2003, he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 24 April 2003, a delegate of the Minister refused to grant a protection visa, and on 27 May 2003, the applicant applied for review of that decision. On 31 July 2003, the Tribunal wrote to the applicant informing him that it had considered the material before it in relation to his application, but was unable to make a decision in his favour on that information alone. It invited the applicant to a hearing on 26 August 2003. By a document titled, “Response to Hearing Invitation”, found at CB [59], the applicant informed the Tribunal that he did not wish to go to a hearing. The Tribunal then proceeded, as it is entitled to at law, to make a decision in the absence of the applicant.
The applicant's grounds for holding a well founded fear of persecution for the Convention reason of religion or membership of the particular social group were set out in his written application for asylum and can be found at CB [7, 8, 9, and 10]. They are all variations of the theme expressed at CB [7], as follows:
“I am an Agha Khani Muslim living in Mumbai, India. Ever since the destruction of the Babri Masjid in Ayodhya. Muslims in general are persecuted by all governments. I have been personally, harassed, tortured and subjected to all forms of torture, which is why I left the country. [I will submit more evidence as soon as possible].”
The sentence in brackets is repeated two more times but I have been unable to find, in the court book, any indication of further information being provided.
When the applicant made his application for review, he said in respect of his reasons for making the application:
“The Department of Immigration has not considered the risk on his life then [unreadable 3 words] to India. We will be submitting more details later.”
Once again no extra details were supplied. The Tribunal's decision is found between CB [63] and [79]. Its findings and reasons on CB [78]. The Tribunal states:
“The applicant's claims are essentially that he is an Agha Khani Muslim who has been captured, harassed and tortured by members of the Shiv Sena Party. The applicant also claimed that members of the Party had tried to kill him on many occasions and that they, and their supporters, would make further attempts to kill him.
Further, the applicant made general claims relating to the authorities whom he believes to be anti-Muslim and consequently would not help him.
I find that the applicant's claims are vague, general and lacking in specific details. In particular, the applicant has not specified any details relating to the occasions when the local members of the Shiv Sena tried to kill him, captured him, harassed him and tortured him. The applicant has not specified any dates relating to these claims.
Further, the applicant did not provide any evidence supportive of his claims. Whilst it is plausible that the police had "refused to register" his complaint, I do not accept the applicant's version of the events given the absence of any supportive and verifiable documentation or other evidence.
Accordingly, on the basis of the available information and in view of the lack of specific details, I am not satisfied that there has been any harassment, torture, threats or attempts on the applicant's life by members and supporters of the Shiv Sena Party. Further I am not satisfied that the police had refused to act appropriately when he allegedly reported the supposed offence.
I find the applicant's claim that the authorities are all anti-Muslim to be unsupported and inconsistent with the independent country information noted in this decision ....”
The decision of the Tribunal is not surprising in view of the complete lack of information provided by the applicant. The Tribunal's decision, which was made on 26 August 2003 and handed down on 23 September 2003, was the subject of an application to this court under the Judiciary Act for review filed on 17 October 2003.
The grounds of the application, which will be familiar to persons regularly dealing with this type of claim are as follows:
(1) The decision made by the RRT involved an error of law whether or not the error appears on the record of the decision.
(2) A breach of the rules of natural justice occurred in connection with the making of the decision.
(3) The applicant was denied procedural fairness in connection with the making of the decision.
(4) Procedures that were required by law to be observed in connection with the making of the decision were not observed.
(5) The making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.
(6) There was no evidence or other material to justify the making of a decision.
(7) The Tribunal member refused to accept that the applicant has a well founded fear of persecution on Convention reasons.
No particulars of these allegations was provided. No submissions were received from the applicant. At the hearing today the applicant was unable to tell me anything save that things were not good for him in India. He agreed that the had not written the application but that it had been prepared for him by a friend. He could not speak to it.
In view of the total absence of any argument for granting review, and in view of the clear, concise and appropriately argued decision of the Tribunal, I do not call upon the Minister to reply. This application is dismissed. I order that the applicant pay the respondent's costs which I assess in the sum of $4200 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Raphael FM
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