SZCKV v Minister for Immigration
[2005] FMCA 1808
•6 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCKV v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1808 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in India – applicant declining to attend RRT hearing – RRT not satisfied that applicant’s claims substantiated – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), s.424A |
| Applicant: | SZCKV |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG58 of 2004 |
| Judgment of: | Driver FM |
| Hearing date: | 6 December 2005 |
| Delivered at: | Sydney |
| Delivered on: | 6 December 2005 |
REPRESENTATION
The applicant appeared in person
| Solicitors for the Respondent: | Ms K Crawley Clayton Utz |
ORDERS
The Refugee Review Tribunal is joined as the second respondent to the proceedings.
The judicial review 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 $2,750.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG58 of 2004
| SZCKV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application to review a decision of the Refugee Review Tribunal (“the RRT”). The decision was handed down on 23 December 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from India. He had made claims of persecution in that country on the basis of political opinion and ethnicity. The relevant background facts are set out in paragraphs 1, second occurring, to 4.1 of the Minister's written submissions. I adopt those paragraphs as background for the purposes of this judgment:
On 24 November 2002, the applicant, a citizen of India, arrived in Australia.[1] On 10 December 2002, the applicant applied for a protection visa,[2] which was refused by a delegate of the Minister on 14February 2003. [3] On 5 March 2003, the applicant applied to the RRT for review of the delegate's decision.[4]
By letter dated 22 August 2003, the applicant was invited to attend a hearing before the RRT on 13 October 2003.[5] The letter was sent to the applicant and to his authorised recipient and stated that the RRT had considered the material before it but informed the applicant that it was "unable to make a decision in your favour on this information alone".
On 1 October 2003, the applicant, through his authorised recipient, faxed a "Response to Hearing Invitation" form to the RRT refusing the Tribunal's invitation to attend the scheduled hearing. On 23 December 2003, the RRT affirmed the delegate's decision. The applicant now seeks judicial review of that decision.
The RRT’s findings [6]
The RRT noted that the applicant had refused the invitation to a hearing before it despite being put on notice that it considered itself unable to make a decision in his favour on the basis of the material before it. The RRT summarised the applicant's claims and set out a number of matters about which there was a lack of relevant detail.
The RRT was unable to be satisfied on the material before it of the applicant's claimed basis for suffering persecution or that the applicant had a real chance of suffering persecution for a Convention reason if he returned to India now or in the reasonably foreseeable future. The RRT was thereby unable to be satisfied on the information before it that the applicant had a well-founded fear of persecution for a Convention reason if he were to return to India.
[1] court book, page 27.
[2] court book, pages 1- 28.
[3] court book, pages 34 - 42.
[4] court book, pages 44 - 47.
[5] court book, pages 50 - 51.
[6] court book, pages 61-69.
In his judicial review application filed on 9 January 2004 the applicant asserts jurisdictional error. The applicant raises as grounds the assertion that the RRT relied upon media information that the RRT decision is unjust and against the principles of natural justice and that the RRT failed to properly interpret and apply the definition of a refugee for the purposes of the Refugee Convention. There is no substance to any of these grounds. The RRT did not rely on media information. It relied upon the material advanced by the applicant and was not satisfied on the basis of that material that a protection visa should be granted. I am satisfied that the RRT understood the task that it had to perform and that the RRT properly applied the correct definition of refugee.
There is no evidence of procedural unfairness. The applicant was invited to a hearing before the RRT by letter dated 22 August 2003[7]. The invitation was sent to the applicant personally and to his authorised recipient. It appears that the invitation did not reach the applicant personally but was received by the authorised recipient. It further appears that the authorised recipient responded on behalf of the applicant declining the hearing invitation[8]. In the letter, dated 22 August 2003, the RRT advised the applicant that it was unable to make a favourable decision on the information before it. Nothing further was provided by the applicant or his authorised recipient in support of the application. It is hardly surprising therefore that the RRT rejected the application.
[7] court book, pages 50 to 51
[8] court book, page 53
I have considered whether any breach of s.424A of the Migration Act 1958 (Cth) (“the Migration Act”) might be asserted in this case. It is apparent that the RRT relied upon the applicant's original protection visa claims in making its decision. However, it is also tolerably clear that the applicant adopted those claims in writing for the purposes of his application to the RRT. Page 46 of the court book contains a statement from the applicant inviting the RRT to refer to the departmental file which would have included his protection visa claims. In these circumstances, the material put forward by the applicant in support of his original protection visa was adopted by him for the purposes of his review application to the RRT. Therefore, the RRT was not obliged to give notice under s.424A of any adverse material derived from that protection visa application.
I see no other arguable jurisdictional error in the decision of the RRT. The decision is therefore a privative clause decision and the judicial review application must be dismissed. I will so order.
Costs should follow the event in this case. The Minister seeks an order for costs fixed in the sum of $2,750. That is a modest figure and I have no difficulty in accepting that costs of at least that amount have been properly and reasonably incurred when assessed on a party and party basis. The applicant did not wish to be heard on costs.
I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $2,750.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 13 December 2005
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