SZBWH v Minister for Immigration
[2005] FMCA 754
•24 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBWH v MINISTER FOR IMMIGRATION | [2005] FMCA 754 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of India – claim of well-founded fear of persecution because of being a member of the Muslim minority in India – no grounds shown on application – no merits review – no reviewable error shown. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.475A |
| MIEA v Wu Shan Liang (1996) 185 CLR 259 at [272] |
| Applicant: | SZBWH |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 2425 of 2003 |
| Judgment of: | Scarlett FM |
| Hearing date: | 24 May 2005 |
| Date of Last Submission: | 24 May 2005 |
| Delivered at: | Sydney |
| Delivered on: | 24 May 2005 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondent: | Ms Watson |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The Applicant is to pay the Respondent’s costs fixed in the sum of $3,500.00 and I allow (1) one month to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2425 of 2003
| SZBWH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for a review of the Refugee Review Tribunal. The decision was made on 30 September 2003 and handed down on
23 October 2003.
The decision of the Tribunal was to affirm the decision of the delegate of the Minister not to grant a Protection Visa to the applicant.
The applicant is a citizen of India who arrived in Australia on
10 April 2003.
On 8 May 2003 he lodged an application for a Protection Class XA Visa claiming a well-founded fear of persecution on the basis that he is a member of the Muslim minority in India.
The following day, the 9 May, a delegate of the Minister refused the application. On 31 May 2003 the applicant sought a review by the Refugee Review Tribunal. The applicant attended a hearing of the Tribunal on 19 September 2003 and gave evidence. He told the Tribunal that he was fluent and literate in Tamil and can speak both English and Hindi but not fluently. The applicant said that his children are living with relatives in Tamil Nadu and his wife is living with his parents.
The applicant referred to two serious incidents that occurred in 2002. The first incident involved a gang of armed people who entered the applicant's father's shop in Ahmedabad. They destroyed property, they stole money, they assaulted the applicant and members of his family. Worse still, they murdered his brother and burnt the shop.
The applicant told the Court that his brother's body was taken by the police who refused to return it to them. The applicant also said that there was another serious incident in that same year. Members of the RSS, which is a Hindu extremist group, attacked the house.
Again, they assaulted the applicant and damaged the house.
The applicant says that his father and friends advised him to leave the country. He was planning to go to London but his father told him he would get more protection in Australia.
The Tribunal handed down its decision but this decision was not favourable to the applicant. The Tribunal described the applicant's evidence as inconsistent and contradictory. The Tribunal was not satisfied that the applicant's version of events was completely true. The Tribunal also found that even if the applicant did have a well-founded fear of persecution that he would be able to relocate and find safety in some other part of India because he speaks Hindi and English and there are other Muslim majority in these states.
The applicant may have suffered serious harm within the meaning of
s.91A of the Migration Act but the Tribunal found that a business competitor was mainly responsible for the two incidents in the year 2002. That being the case, the two incidents were private and not related to any reason under the Refugees Convention.
The applicant filed an application for review of that decision at this Court on 11 November 2003. He has filed no other document.
The applicant prepared the application himself with some assistance from friends. The application does not disclose any valid ground of review nor set out what relief the applicant seeks. I asked the applicant about those things and not surprisingly he told the Court that he seeks an order quashing the decision of the Refugee Review Tribunal and referring the matter back to the Tribunal for reconsideration according to law.
The applicant has not provided any grounds for the Court to make those orders. There is no claim for denial of natural justice or lack of procedural fairness. This is hardly surprising as it is accepted that the applicant attended at the hearing before the Tribunal and gave oral evidence. The Tribunal member asked him a number of questions about his case. The applicant seems to have been able to reply to all of those questions.
The difficulty for the applicant is that the Tribunal was just not satisfied that he had made out his case. The Tribunal was not satisfied as to the credibility of his evidence. The Tribunal was satisfied that he is a Muslim and that he had suffered harm in two serious incidents. The Tribunal was not satisfied however that the harm that he had suffered was for a Convention reason.
It is not enough to show that a person has suffered harm. Having been harmed or threatened does not of itself make one a refugee. The harm must be for a Convention reason.
The applicant seems to be seeking a review of the merits. It is well established that the Court does not have the power to review the merits of the Refugee Review Tribunal's decision on the facts. This has been made quite clear by the High Court of Australia in the decision
MIEA v Wu Shan Liang(1996) 185 CLR 259 at [272].
In this case the Tribunal's findings were reasonably open to it on the evidence. It is not up to the Court to decide whether it would have made the same decision faced with that same evidence. The applicant has not established there has been any jurisdictional error. As the applicant is not legally represented I have made a point of reading through the decision thoroughly in order to satisfy myself that there is no reviewable error shown by that decision. There is no reviewable error shown in this proceeding. As there is no reviewable error, the application will be dismissed.
There is an application for costs. It is normal in this Court for costs to follow the event which means that the successful party can claim his or her legal costs against the unsuccessful party. In my view this is a suitable matter to make a costs order in favour of the respondent Minister as the applicant has been wholly unsuccessful in his application. The solicitors for the Minister seek a lump sum of costs to be fixed in the amount of $3500. This is an amount well within the scale of costs provided by Schedule 1 of the Federal Magistrates Court Rules. The lump sum is, if I may say so, a most modest amount in the circumstances.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 1 June 2005
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