SZCZM v Minister for Immigration
[2005] FMCA 66
•21 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCZM v MINISTER FOR IMMIGRATION | [2005] FMCA 66 |
| MIGRATION – summary dismissal of applicant’s application to review a decision of the Refugee Review Tribunal – where Applicant did not give any details of his claim on the application for a visa. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.47
Minister for Immigration and Multicultural Affairs v Li [2000] FCA 1456
| Applicant: | SZCZM |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 712 of 2004 |
| Delivered on: | 21 January 2005 |
| Delivered at: | Sydney |
| Hearing date: | 21 January 2005 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondent: | Mr Chami Clayton Utz |
ORDERS
The Application is dismissed.
The Applicant is to pay the Respondent’s costs in this Application fixed in the sum of $3,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 712 of 2004
| SZCZM |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTUAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Application
The application before the court is an application by the respondent Minister for summary dismissal of the applicant's application to review a decision of the Refugee Review Tribunal. The Minister says that the substantive application does not disclose a reasonable cause of action.
The facts are that the applicant is a citizen of India. On 26 March 2003 he applied for a protection visa. A protection visa is a visa given to someone who is found to be a refugee. At page 18 of the court book, going through to page 21 appear to be the sections of the protection visa relating to the applicant's claim to be a refugee. At page 18 of the court book the applicant is told, and I quote:
You should tell us below, everything about why you think you are a refugee. In answering the questions below, you should tell us if you think any events you refer to are because of your race, your religion, your nationality, your membership of a particular social group, your political opinion, other reasons.
The applicant said that he was seeking protection in Australia so that he did not have to go back to India. In his answer to question 40, Why did you leave that country, he said:
Well founded fear to killed if I go back to India. I am not safe in my country.
On page 19, in answer to the question, What do you fear may happen to you if you go back to that country, he said:
I am not safe in India. Details will be filed later.
In answer to question 42, Who do you think may harm or mistreat you if you go back, he answered:
Will be filed later, seeking legal assistance.
In answer to question 43, Why do you think this will happen to you if you go back, he answered:
Will be filed later, seeking legal assistance.
In answer to question 44, Do you think the authorities of that country can and will protect you if you go back, if not, why not, he replied:
No, will be filed later, seeking legal assistance.
He submitted that application for a protection visa on 26 March 2003. On 5 June 2003, his application was refused. He had not provided the details that he said he would. What he did do was apply to the Refugee Review Tribunal. He filed that application on 26 June 2003. In section D of his application, in answer to the question, Please tell us why you consider yourself to be a refugee, he said:
Will be filed later.
Eventually, on 21 October 2003, after he had received a letter inviting him to a hearing, he eventually provided a typed three page letter. In that, he said that he was a Hindu and fell in love with a Muslim girl. He said that he was charged with stealing a pay order from the Bank of India and he was charged but obtained bail. He went back to his village and found that his girlfriend was still in love with him. Her father found out about the relationship and was very angry. He said that the girl's father sent some of his colleagues to assault him and it says he was beaten badly.
His father died in a motor vehicle accident and his mother advised him to leave India for his safety. He says he could not re-settle in any part of India as he does not speak any other language than Malayalam. At the hearing of the Refugee Review Tribunal, the Tribunal member considered this explanation. The conclusion was that the Tribunal found that his application for a protection visa was not valid and the Tribunal had no power to consider it. The Tribunal noted that the applicant had been informed as long ago as February 2004 that his application may not be valid. The Tribunal referred to the decision of Minister for Immigration and Multicultural Affairs v Li [2000]
FCA 1456.
The Tribunal noted that the applicant had not filled in the details required and there was not a substantial compliance with the form. At page 66 of the court book the Tribunal found that the application was not valid and could not be considered.
In any event, at page 67 of the court book the Tribunal found, and I quote:
In any event, even if the Tribunal had proceeded on the basis that the application was valid, the Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention.
The Tribunal had not accepted that the applicant would have been persecuted in Kerala by reason of his faith as a Hindu, and did not accept that his claim was one which would allow him to be considered as a refugee.
To my mind the decision of the Refugee Review Tribunal is correct in law. The applicant submitted an application for a protection visa and never gave details to the delegate of the Minister as to why he claimed to be a refugee. He said he would file that information later, but he had not done so by the time the delegate refused his application.
He filed his application for review with the Refugee Review Tribunal and in the original application did not provide any details. It was only some four months later that he provided a statement of facts. The Tribunal considered those facts and was not satisfied that the facts in any event would have made out a claim to be a refugee for a Convention reason.
The fact is, though, that the applicant had not filed a valid application for a protection visa and that the Tribunal could not consider the application as it was not a valid one. That is made quite clear in section 47 of the Migration Act. Subsection (3) says:
To avoid doubt, the Minister is not to consider an application that is not a valid application.
And subsection (4):
To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa.
As such, the Tribunal could not consider the application for review and in my view the only course open to this court is to dismiss the application.
The applicant is to pay the respondent Minister's costs of these proceedings in the sum of $3,500.00.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 1 February 2005
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