SZCJU v Minister for Immigration
[2005] FMCA 1350
•16 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCJU v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1350 |
| MIGRATION – Review of Refugee Review Tribunal proceeding – refusal of a protection visa – applicant claiming political persecution in Ecuador – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), s.424A |
| Abebe v Commonwealth (1999) 197 CLR 510 Chan v Minister for Immigration (1989) 169 CLR 379 Kopalapillai v Minister for Immigration (1998) 86 FCR 547 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 NADH of 2001 v Minister for Immigration (2004) 214 ALR 264 Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 VJAF v Minister for Immigration [2005] FCAFC 178 W148/00A v Minister for Immigration (2001) 185 ALR 703 |
| Applicant: | SZCJU |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 15 of 2004 |
| Judgment of: | Driver FM |
| Hearing date: | 16 September 2005 |
| Delivered at: | Sydney |
| Delivered on: | 16 September 2005 |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The Refugee Review Tribunal be joined as the second respondent to the proceedings.
The application is dismissed.
The applicant is 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 |
SYG 15 of 2004
| SZCJU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second 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 made on 25 November 2003 and was handed down on 18 December 2003. The RRT affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. The relevant background is contained in paragraph 3 of the Minister's written submissions prepared by Mr Reilly. I adopt that paragraph as background for the purposes of this judgment:
The applicant claimed to fear persecution in Ecuador for reason of his political opinion. He claimed that his father was an important politician, and that because of this association the applicant was beaten in 1997 and warned not to return to Ecuador. See generally court book, pages 26-27, 75-77. The RRT found that the applicant’s written and oral claims were vague, contrary to independent country information (discussed at the hearing: court book, pages 75-76), noted that he had returned to Ecuador four times since he first arrived in Australia in 1997 and had not claimed the visa until 2002, and concluded that his application “is not factually based”, and that the applicant did not even genuinely fear harm in Ecuador: court book, page 77.1.
The applicant relies upon his amended application filed on 18 March 2005. That amended application appears to have been filed pursuant to order 2 made by consent before Registrar Tesoriero on 12 March 2004. Those orders also required the applicant to file and serve any evidence upon which he wished to rely before 3 May 2004. Nothing has been filed. The only evidence I have before me is the book of relevant documents filed on 14 April 2004. The applicant has had the benefit of legal advice under the Minister's panel advice scheme. I note that Mr Robert Wilson provided advice to the applicant on 18 October 2004.
Mr Reilly deals with the grounds raised in the amended application in paragraphs 4 and 5 of his written submissions. I agree with those submissions and adopt them for the purposes of this judgment:
It is apparent that the applicant was unsuccessful because of the view the RRT took of the facts, in particular its evident conclusion that the applicant was not credible and his claims untrue. Such findings are matters of fact for the RRT par excellence: Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 (HCA/McHugh J) at [67]. So long as the RRT’s credibility findings were open to it, no error is demonstrated in such conclusions: Kopalapillai v Minister for Immigration (1998) 86 FCR 547 (FC) at 558-559; W148/00A v Minister for Immigration (2001) 185 ALR 703 (FCA/FC) at [64-69] per Tamberlin and R D Nicholson JJ. The RRT’s findings were open for the reasons it gives, including the country information to which it refers. It is unlikely that a State party is expected to grant refugee status to a person whose account, although plausible and coherent, was inconsistent with the State’s understanding of conditions in his or her country of nationality: Chan v Minister for Immigration (1989) 169 CLR 379 at 428 per McHugh J (although here the RRT did not find the applicant’s claims to be “plausible and coherent”). The Court cannot review the merits of the RRT’s decision: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272, and there is no error of law, let alone a jurisdictional error, in the RRT making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137].
The amended application contains five grounds. Grounds 1, 3 and 4 assert that the RRT failed to take into account relevant considerations, and took into account irrelevant considerations. However the matters alleged do not go beyond disagreement with the RRT’s factual conclusions and assessment of the merits. No relevant or irrelevant consideration in the true sense (ie matters required to be taken into account or not taken into account by the Migration Act 1958 (Cth) (the Act): NADH of 2001 v Minister for Immigration (2004) 214 ALR 264 (FCA/FC) at [123]) are identified. Ground 2 claims that the RRT failed to have regard to the applicant’s fear of harm based on his family membership, but the RRT expressly found that the applicant had no genuine fear: court book, page 77.2, and was not of adverse interest to “anyone”: court book, page 76.9. Finally ground 5 claims that the applicant should have been provided with country information, but such information falls within s 424A(3)(a) of the Act: VJAF v Minister for Immigration [2005] FCAFC 178.
The applicant was not able to persuade me in his oral submissions that there is any jurisdictional error in the decision of the RRT. It is apparent that he is dissatisfied with the outcome of the RRT proceeding. However, that is not a matter that the Court can deal with in these proceedings. He asserted procedural unfairness at the RRT hearing. There is no evidence to support that accusation. The court book discloses that the RRT was taken by surprise by the attendance of the applicant as he had not responded to the hearing invitation. Nevertheless, he was given a hearing and had the opportunity to discuss his claims with the presiding member.
There is no jurisdictional error in the decision of the RRT. The decision is therefore a privative clause decision and the judicial review application must be dismissed.
Costs should follow the event in this case. The Minister seeks an order for costs fixed in the sum of $4,000. The applicant did not wish to be heard on costs. I agree that costs of at least $4,000 have been properly and reasonably incurred on behalf of the Minister 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 will also order that the Refugee Review Tribunal be joined as the second respondent to the application.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 20 September 2005
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