SZCXJ v Minister for Immigration

[2005] FMCA 71

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCXJ v MINISTER FOR IMMIGRATION [2005] FMCA 71

MIGRATION – Visa – protection visa – applicant is a citizen of Nepal – review of a decision by the Refugee Review Tribunal.

Judiciary Act 1903 (Cth)
Migration Act 1958 (Cth)

Applicant: SZCXJ

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG 627 of 2004

Delivered on: 27 January 2005

Delivered at: Sydney

Hearing date: 27 January 2005

Judgment of: Scarlett FM

REPRESENTATION

The Applicant: Appeared in person

Solicitors for the Respondent: Mr Allett
Australian Government Solicitor

ORDERS

1. The Application is dismissed.

2. The Applicant is to pay the Respondent’s costs in this Application fixed in the sum of $1,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 627 of 2004

SZCXJ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Application

1. The applicant has applied for review of a decision by the Refugee Review Tribunal which was handed down on 22 October 1997, in that decision the Tribunal found that the applicant was not a refugee and affirmed the decision of a delegate of the Minister not to grant a protection visa.  The applicant is a citizen of Nepal, he arrived in Australia on 31 July 1995.  He made an application for a protection visa on 27 October 1995.  On 8 October 1996 a delegate of the Minister refused the application.

2. On 5 November 1996 the applicant applied for a review of the decision by the Refugee Review Tribunal.  On 15 October 1997 the Tribunal held a hearing, the applicant attended the hearing and was given the assistance of an interpreter in the Nepalese language.  The applicant has claimed a fear of persecution in Nepal on the ground of political opinion, he said that he was a member of a local branch of the Penchayat Party, he claimed that his father was a senior local representative of the party.

3. The Tribunal considered his evidence and asked the applicant a number of questions, the Tribunal commented at page 75 of the court book that the applicant did not appear to be aware that a Penchayat supporter, one, Thapa was now the Prime Minister of Nepal, the Tribunal drew an unfavourable inference about the applicant's familiarity with Nepalese politics and his interest in those politics.  The Tribunal found that a number of parts of the applicant's evidence were implausible and at times inconsistent.

4. In its findings the Tribunal found that the applicant's evidence about the history of the Penchayat Movement contained significant inaccuracies, the Tribunal did not accept that the applicant had much of a long term and intimate knowledge of the Penchayat Movement.  The Tribunal made a finding of fact that a membership card that the applicant produced and some letters from the district secretary were fakes.  Page 77 of the court book the Tribunal described the applicant as "an unreliable witness."  The reality is that the Tribunal did not accept the applicant's claim.

5. The applicant seeks to challenge the decision of the Tribunal on the facts but there is no error of law disclosed and the Federal Magistrates Court does not have the jurisdiction to consider the facts again.  The applicant is in effect, seeking a merits review of the case.  In my view there is no error shown in the way that the Tribunal considered the evidence and the Tribunal's finding was a finding open to it on the evidence before the Tribunal.  There is no reviewable error.

6. The application is dismissed; the applicant is to pay the respondent's costs of the application in the sum of $1,500.00. 

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S. Polley

Date:  2 February 2005