SZCKS v Minister for Immigration
[2005] FMCA 1918
•21 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCKS v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1918 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming caste persecution in India – no reviewable error found – application dismissed. |
| Re Palme; Ex parte Minister for Immigration (2003) 216 CLR 212 SZBDF v Minister for Immigration [2005] FCA 1493 VJAF v Minister for Immigration [2005] FCAFC 178 |
| Applicant: | SZCKS |
First Respondent: : | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG49 of 2004 |
| Judgment of: | Driver FM |
| Hearing date: | 21 December 2005 |
| Delivered at: | Sydney |
| Delivered on: | 21 December 2005 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondent: | Mr J D Smith |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The name of the second respondent be amended to the Refugee Review Tribunal.
The third respondent is deleted as a 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 $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG49 of 2004
| SZCKS |
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 handed down on 22 December 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. Relevant background facts are set out in the Minister's written submissions. I adopt as background paragraphs 3-5 of those written submissions:
The applicant is a citizen of India who arrived in Australia on 30 September 2002 and lodged an application for a protection visa on 28 October 2002. He claimed that he had been discriminated against, harassed, detained, beaten and the subject of false charges on account of his membership of a low caste and his political opinion.
On 19 November 2002 a delegate of the first respondent refused to grant the applicant a protection visa and the applicant applied to the RRT on 10 December 2002 for review of that decision. The applicant was invited to and attended a hearing conducted by the RRT. The RRT handed down its decision on 22 December 2002.
RRT’s decision
The RRT rejected the applicant’s claims because it did not accept him as a truthful witness. It found his evidence was often weak, unconvincing and at times evasive. For these reasons, the RRT concluded that the applicant had no genuine fear of persecution and that there was no real chance of persecution on his return to India.
The applicant relies upon his amended application filed on 26 October 2004. That application is defective in its form. The second and third respondents were inappropriately named, which I have already dealt with. In addition, there is some confusion in the application between grounds and particulars.
In his oral submissions the applicant stressed his fear of returning to India. He is obviously disappointed with the RRT decision. He considers that the RRT should have accepted his claims to be a refugee. However, as I explained to him during the course of oral argument, that is merely a dispute with the merits of the RRT decision. I must restrict myself to legal issues going to the question of whether or not the RRT decision is infected with jurisdictional error.
The Minister's legal submissions deal adequately with the various grounds or purported grounds set out in the amended application. I agree with and adopt paragraphs 6-14 of those written submissions for the purposes of this judgment:
The first ground is, in essence, a claim that the RRT misunderstood the reasons for which the applicant claimed he would face persecution in India. This claim, however, ignores the fact that the RRT rejected the applicant’s claims on the basis of his credibility. Having found, at court book, page 66, that the applicant held no genuine fear of persecution and that there was no real chance of persecution, the RRT was not obliged to make any findings about the reason or reasons for which he claimed he would be persecuted.
The second ground is that there was a denial of procedural fairness. It is claimed that the RRT did not allow the applicant to explain why he believed harm would come to him as a result of his witnessing a political killing. There is no suggestion in the RRT’s reasons that such a claim was made at the hearing by the applicant and no transcript of the hearing is in evidence. The fact that the claim was not made in the applicant’s statement in support of his visa application [court book, page 25] further supports the conclusion that this claim was not made by the applicant at all. For that reason, it cannot be said that the applicant was denied an opportunity to present his case.
The second ground also contains an allegation that the RRT was only focussed on the “Convention” based reason for the claimed fear of persecution. As noted above, this is not the case. The RRT’s reasons turned upon a rejection of the applicant’s credit and his claimed fears rather than any notion of causation.
The third ground is an allegation that the RRT failed to consider the applicant’s claims to have been constantly harassed for almost three years and to have nearly been killed by political activists. That is not the case. The applicant’s claims were rejected entirely. The RRT carefully set out in its statement of reasons the claims made by the applicant both in writing and orally at the hearing: court book, pages 57 – 64. Once it had done that, the RRT then gave its reasons for rejecting all of these claims: court book, pages 66 – 68. This shows that the RRT did in fact consider all of the claims made by the applicant. The ground is best understood as a complaint that the RRT did not accept the applicant’s claims. That is an attack on the merits of the decision and not one that establishes jurisdictional error.
The fourth ground is another claim of a denial of procedural fairness. In particular, it is alleged that the RRT relied on country information without giving the applicant an opportunity of dealing with it. There are two answers to this ground: first, it is clear from the RRT’s statement of reasons that it did give the applicant an opportunity to deal with the information upon which it relied to make its decision: court book, pages 63.5 – 63.9. Secondly, there was no obligation on the RRT to give the applicant particulars of the country information. That information was not specifically about the applicant or another person and so fell within one of the exceptions to the obligation under s.424A(1): VJAF v Minister for Immigration [2005] FCAFC 178 at [11] – [16]. Further, since the application for review was made on 10 December 2002, the obligations imposed by the fair hearing rule are restricted to those set out in Division 4 of Part 7 of the Act, in this case, s 424A: SZBDF v Minister for Immigration [2005] FCA 1493 per Branson J at [18].
The fifth ground is that the RRT misapplied the test or misinformed the applicant about the test. It is not clear what this means; however, there is no suggestion in the evidence about the latter, and the former cannot be sustained in light of the RRT’s rejections of the applicant’s claims, in particular, his claimed subjective fear.
The sixth ground is one of irrationality. The RRT’s reasons are not irrational or illogical. They proceed from a consideration and rejection of the applicant’s evidence. Even if illogicality were a basis for judicial review, this ground could not be made out.
The seventh ground is that the RRT member failed to give adequate reasons for its decision. The obligation to give reasons is not one that goes to the jurisdiction of the RRT. It clearly arises after the RRT has made its decision: see for example, Re Palme; Ex parte Minister for Immigration (2003) 216 CLR 212.
The final ground is that the RRT failed to consider all the claims put forward by the applicant. This is similar to the third ground and ought to be rejected for the same reasons.
The applicant was not able to further develop any of the asserted errors in oral submissions.
No jurisdictional error in the RRT decision is apparent to me. The decision is therefore a privative clause decision.
I will dismiss the application.
Costs should follow the event in this case. The Minister seeks an order for costs fixed in the sum of $4,500. This is a matter of no more than average complexity. The amount sought is marginally less than what a respondent would now expect to receive under the rules of this Court after a final hearing. I agree that $4,500 has been properly incurred on behalf of the Minister on a party and party basis. The applicant is concerned about his ability to pay costs. As I explained to him, that is a matter between him and the Minister's Department.
I will order that the applicant pay the first respondent's costs and reimbursements of and incidental to the application, which I fix in the sum of $4,500.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 22 December 2005
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