SZCJH v Minister for Immigration

[2005] FMCA 1257

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCJH & ORS v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1257

MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visas – applicants claiming political persecution in Cyprus – no reviewable error found – application dismissed.

Migration Act 1958 (Cth), s.425

SAAP v Minister for Immigration (2005) 215 ALR 162

First Applicant:

Second Applicant:

Third Applicant:

SZCJH

SZCJI

SZCJJ

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

REFUGEE REVIEW TRIBUNAL

File Number: SYG1 of 2004

Judgment of: Driver FM

Hearing date: 1 September 2005

Delivered at: Sydney

Delivered on: 1 September 2005

REPRESENTATION

Counsel for the Applicant: Mr A B Slattery, with leave

Counsel for the Respondent: Mr T Reilly

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The Refugee Review Tribunal be joined as the second respondent to the proceedings.

2. The application is dismissed.

3. The first and second applicants are to pay the first 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

SYG1 of 2004

SZCJH

First Applicant

SZCJI

Second Applicant

SZCJJ

Third Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 25 November 2003 and handed down on 19 December 2003.  The RRT affirmed a decision of a delegate of the Minister not to grant the applicants protection visas.  There are three applicants, a husband, a wife and their child.  They are from northern Cyprus.  I note that the relevant claims in support of protection visas were made by the first applicant, referred to in these reasons as the applicant.  Background facts are briefly stated by Mr Reilly in paragraphs 2 and 3 of his written submissions.  I adopt those paragraphs as background for the purposes of this judgment:

   The applicant applied for the visa on 16 May 2002: court book, pages 1-33.  The delegate’s decision refusing the visa was made on 17 December 2002: court book, pages 34-43.  The applicant applied to the RRT for review on 6 January 2003: court book, pages 45-48.  The RRT held a hearing on 21 November 2003: court book, page 52.

   The applicant claimed to fear persecution for reason of her political opinion in Cyprus.  She claimed to be a member of a peace committee in favour of a united Cyprus, and to fear war between Greek and Turkish Cypriots.  She claimed that enemies of the peace committee attacked her marriage reception on 29 August 2001 and threatened her and her husband with death unless they left Cyprus.  She claimed she was again beaten by a mob on 12 December 2001 and on 1 January 2002.  The RRT rejected the applicant’s claims to have been involved in any political activities, noting a number of difficulties with her claims to this effect: court book, page 79.4.  As a result the RRT did not accept any of the applicant’s claims to have been harmed for this reason: court book, page 79.8, and noted that this was consistent with independent country information that in general people are not persecuted for their political opinion in Northern Cyprus (discussed during the hearing: court book, page 78.2).  See generally court book, pages 79-81.

2. These proceedings commenced with an application for judicial review filed on 2 January 2004.  After the applicant had received advice under the Minister's panel advice scheme, an amended application was filed on 10 August 2004.  That is the application that I have before me.  The applicant also prepared an affidavit which was filed on 15 July 2004.  That affidavit has not been read and I indicated to Mr Slattery, who appeared, with leave, for the applicants, that I could not receive it as evidence as it was in the nature of either submissions or possibly particulars of the application.

3. Mr Slattery appeared by leave on giving an undertaking to file a notice of appearance.  He was only instructed immediately before the hearing of this matter today.  Bearing that in mind, Mr Slattery sought an adjournment so that he could take more detailed instructions and prepare better for a hearing.  I declined that request for an adjournment on the basis that the application has been on foot since January 2004.  The applicants have had the benefit of advice under the Minister's panel advice scheme and they have had ample opportunity to prepare for today's hearing and to instruct legal representatives.

4. In his oral submissions, Mr Slattery submitted on instructions that the RRT hearing was unfair and did not comply with the requirements of s.425 of the Migration Act 1958 (Cth) and that the presiding member may have been biased. The difficulty is that the available evidence which is limited to the court book does not support those propositions. Mr Reilly deals with the legal issues appearing to arise from the amended application in paragraphs 4 and 5 of his written submissions.

5. On my own reading of the decision and reasons of the RRT, no jurisdictional error is apparent to me.  The presiding member had obvious credibility concerns with the claims made by the applicant, noting that those claims were made late and the applicant did not demonstrate the knowledge that the presiding member considered could be expected by someone with the political profile asserted by the applicant.  The recitation by the presiding member on pages 75 to 79 of the court book of what happened at the hearing indicates that the presiding member's concerns were discussed with the applicant.  The presiding member also had regard to country information which indicated to her satisfaction that there was no real risk of the applicants coming to harm should they return to Cyprus.

6. Although she did not consider it strictly necessary, the presiding member went on to consider whether, if the applicants might come to harm in Turkish controlled Cyprus, they could relocate to the territory of the internally recognised Cyprus government.  She found that they could.  That, in my view, is probably a complete answer to any asserted jurisdictional error in relation to the rejection of the applicants' claims.

7. I find that there is no jurisdictional error in the decision of the RRT.  In the circumstances, the decision is a privative clause decision and the application must be dismissed.

8. On the question of costs, Mr Reilly seeks an order for costs fixed in the sum of $4,000.  I agree that costs should follow the event and that costs of that order have been properly and reasonably incurred on behalf of the Minister when assessed on a party and party basis.  I will order that the first and second applicants pay the costs of the Minister, fixed in the sum of $4,000.

9. In accordance with the decision of the High Court in SAAP v Minister for Immigration (2005) 215 ALR 162, the Refugee Review Tribunal should be joined as the second respondent to the application and I will so order.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  7 September 2005