SZCZM v Minister for Immigration
[2006] FMCA 709
•8 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCZM v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 709 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the minister not to grant a protection visa – applicant is a citizen of India – claiming fear of persecution for political reason – mixed marriage – no reviewable error. |
| Judiciary Act 1903 (Cth) s.39B Migration Act 1958 (Cth) ss.48A, 424, 424A |
| Applicant: | SZCZM |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3818 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 8 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 8 May 2006 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Ms Mason |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $4,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3818 of 2005
| SZCZM |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal. The Tribunal made its decision on 10th November 2005. The Refugee Review Tribunal handed down its decision on 1st December 2005.
The decision of the Tribunal was to affirm a decision of a delegate of the Minister not to grant a protection visa to the Applicant.
Background
The Applicant is a citizen of India who arrived in Australia on 26th February 2003. He applied for a protection visa which was refused. He applied for a review of that decision and on 10th February 2004 the Refugee Review Tribunal set aside the delegate's decision and substituted it with a decision that the protection visa application was not valid and could not be considered. That decision was upheld by Edmonds J in the Federal Court on 23rd May 2005.
As the Respondents point out, because the original protection visa application was void the Applicant was not precluded by s.48A of the Migration Act from filing a further application for a protection visa. He did this on 23rd June 2005. That application was refused and the Applicant sought a review of the delegate's decision by the Refugee Review Tribunal. The Tribunal asked the Applicant to attend a hearing and on 9th November 2005 the Applicant attended a hearing of the Tribunal and gave evidence. The Tribunal affirmed the delegate's decision to refuse the protection visa.
The Applicant claimed well-founded fear of persecution. What he said was political opinion. He said that he had fallen in love with a Muslim girl and that her parents were opposed to him because he was a Hindu. The Applicant said that the girl's father was a member of the Communist Party of India and the father had warned the Applicant not to continue the relationship. Nevertheless, the Applicant and the young lady decided to continue their relationship but suffered from having been beaten up by associates of the lady's father.
The Applicant also claims that he had been told with some friends to open a bank account in another name and to deposit various amounts in a particular bank after which they would receive a sum of money each. The Applicant and a friend were arrested and were held in custody and the Applicant claimed the police told them that this was part of a very large fraud in which bank staff members were involved.
The tribunal’s findings and reasons
The Tribunal was satisfied that the Applicant was a citizen of India, having seen a photocopy of his Indian passport. This was also produced at the hearing. The Tribunal accepts that the Applicant is a Hindu.
The Tribunal questioned the Applicant about the basis upon which he was claiming to be a refugee and the Applicant said that the father of the lady of whom he had been enamoured and the friends of the colleague involved in the bank job were looking for him for political reasons. The Applicant claimed the political party in which the Applicant's lady's father was involved was against him.
The Tribunal had difficulty believing the Applicant could expect trouble when, on his account, he had not seen the lady concerned for about five years and the Tribunal was also sceptical of any harm coming to the Applicant as a result of a bank fraud and it seems clear that the Tribunal was not satisfied that the bank job had any political basis at all.
The Tribunal was not satisfied there was a real chance of the Applicant experiencing serious harm amounting to persecution for a convention reason if he were to return to India. The Tribunal found that the Applicant was not a refugee and affirmed the delegate's decision.
The application for judicial review
The Applicant filed an Amended Application on 1st May 2006. He seeks orders quashing the decision of the Tribunal and remitting the matter to the Tribunal for determination according to law. He sets out three grounds for his application. First, that the Tribunal relied in its decision on relevant background material which it described in its decision. The Tribunal did not discuss this material with the Applicant and give him an opportunity to comment giving rise to jurisdictional error.
In dealing with this ground, it is clear that the background material to which the Applicant refers is better referred to as independent country information. The Applicant has not provided any evidence that this material was in fact not raised with the Applicant. It is clear that background information that is not specifically about the Applicant or another person but is just about a class of persons of which the Applicant or other person is a member does not breach s.424A(1) of the Migration Act because it is specifically excepted under s.424A(3)(a) . Accordingly that ground for relief must fail.
The second ground is that the Tribunal had said that the Communist Party of India (Marxist) was just one opposition party in Kerala and has only 23 seats out of 140 assembly seats in Kerala. The ground goes on to say “presently they have an assembly election in Kerala, all South Seven District election is done; other states will be going to polling next week. The exit poll and intelligence reports saying CPM will come back, more power, as 103 assembly seats, it is more critical”.
In my view, this is no more than a challenge to a factual finding of the Tribunal. The Tribunal is the body that makes the decision on facts and merits review is just not open on judicial review. In any event, as Ms Mason for the Respondent Minister submits, nothing turns on the material relating to the Communist Party of India (Marxist) and its electoral fortunes in the State of Kerala and in any event it is not information which formed a part of the Tribunal's decision to affirm the decision of the delegate. That ground must fail.
The third ground is that the Tribunal failed to consider the possibility that the Applicant, following his return to India, would locate his mother and girlfriend, resume the relationship and be exposed to persecution. As a result the Tribunal ignored, or failed to consider, an aspect of the Applicant's claim giving rise to jurisdictional error. The immediate conclusion that can be reached as a result of that ground, is that it is somewhat speculative, to say the least. For the Respondent,
Ms Mason submitted, that if this is an allegation that there was an aspect of the claim that was not considered by the Tribunal, the decision shows that it was not a claim made explicitly to the Tribunal.
The question therefore that must be asked is did this claim arise squarely from the evidence, and I am referred to page 76 of the Court Book. The Tribunal's decision was that the Applicant said the last time he had contact with the lady concerned was about five years ago and the Tribunal put to the Applicant that it was having difficulty in accepting that the girlfriend's father would seek, or be able to track him down, wherever he went in Kerala or India or would seek to harm him even if he stumbled upon him since he had not been in contact with her for five years.
Whilst the Applicant replied that he had a bad name and that the woman's father and his associates would drive him out. His mother had sold her house to get him to leave. The Tribunal was not satisfied that the Applicant had a well-founded fear of serious harm for a Convention reason on that basis. Alternatively it is submitted, and I believe correctly, that even if there was a possibility that was raised by the evidence, the Tribunal had gone on to find at page 77 of the Court Book that there was no Convention nexus.
In my view, that is an answer to the claim that the Tribunal was not satisfied that either of the issues raised by the Applicant had a convention nexus, and was not satisfied on the facts, as put to it by the Applicant, that there was a real chance of serious harm arising if the Applicant were to return to India. In my view, the third ground must fail and on my reading of the decision of the Tribunal myself, mindful as I am that the Applicant was not legally represented, I am not able to discern any other jurisdictional error. In my view there is no reviewable error and that the decision as a privative clause decision under the provisions of s.474 of the Migration Act. The application must be dismissed.
There is an application for costs on behalf of the Minister. In my view there is nothing which takes this case away from the ordinary situation where the successful Respondent is entitled to an order for costs.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 17 May 2006
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