SZDCQ v Minister for Immigration
[2005] FMCA 82
•21 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDCQ v MINISTER FOR IMMIGRATION | [2005] FMCA 82 |
| MIGRATION – Visa – protection visa – application for review of a decision by the Refugee Review Tribunal affirming a decision by a delegate of the Minister to refuse a Protection visa to the Applicant – no reviewable error. |
| Applicant: | SZDCQ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 863 of 2004 |
| Delivered on: | 21 January 2005 |
| Delivered at: | Sydney |
| Hearing date: | 21 January 2005 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr Chami |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Application is dismissed.
The Applicant is to pay the Respondent’s costs in the sum of $2,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 863 of 2004
| SZDCQ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
In this matter the Applicant seeks a review of a decision made by the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant to him a protection visa. Today the Minister's legal advisers have brought an application seeking in effect that the application be dismissed. They point out that the Applicant has not filed an amended application as previously directed. The Applicant was ordered by the Registrar on 11 May 2004 to file and serve an amended application giving full particulars of each ground of review relied upon by 20 July 2004. He has chosen not to do so. He has obtained advice and his adviser has prepared a letter for him. In that letter dated 3 November 2004 he has written to the solicitor for the Respondent saying:
Further to my application under section 39B and the court order dated 11 May 2004 I wish to advise as follows:
All of the complaints outlined in my initial submissions still stand. The situation described in RRT decision record pages 12 to 16 still accurately reflects conditions in my home country of Fiji and there is evidence that it has got worse in recent times. Accompanying this letter I have provided more evidence of similar situations in the form of newspapers cutting of Fiji.
I should make it clear that as this is an application for a review of a decision of the Refugee Review Tribunal. There is no ground for further evidence to be submitted. The Applicant has chosen not to file an amended application and in effect he intends to stand or fall by his original application of 24 March 2004. Regrettably, he will fall.
The application is defective. The application indicates that the Applicant seeks a writ of certiorari, a declaration that the decision of the RRT made on 24 February 2004 is void and of no effect and a writ of prohibition directed to the Respondent Minister. The application contains no particulars of the matters upon which the Applicant relies. There is an affidavit filed by the Applicant filed on the same day. In that affidavit which contains some eight paragraphs the Applicant devotes one paragraph to reasons why he considers that the Tribunal did not act in an appropriate way. He says:
I therefore say that the Tribunal did not properly take my circumstances into account and failed to act in accordance with natural justice.
The other seven paragraphs of the affidavit set out assertions by the Applicant that in Fiji parliament, public administration and law and order favour Fijian natives instead of Fijian Indians. He refers in paragraph seven to the fact that the Tribunal accepts all of his assertions but gives no weight to them.
Even if I were to take the Applicant's affidavit as being part of his application paragraphs one to seven amount to no more than an application for merits review. The grounds contained in paragraph eight of the affidavit are not themselves backed up with any particulars. The Applicant provides no evidence that the Tribunal did not properly take his circumstances into account.
But even if he did that is no more than a challenge to the factual decision of the Tribunal. The Applicant asserts that the Tribunal failed to act in accordance with natural justice but does not say why. The Applicant sought a review by the Refugee Review Tribunal. Due to a problem that was not of his making, the original hearing could not proceed. The application was adjourned but the Applicant's migration adviser sought a further adjournment so that he could attend with the Applicant. On 22 December 2003 the Tribunal wrote to the Applicant saying that on 17 December 2003 he asked the Tribunal to postpone the hearing.
The letter said that the member reviewing the Applicant's case had agreed to the request. The application was adjourned until 19 January. When the application was heard, the Applicant attended accompanied by his migration adviser. The Applicant gave oral evidence to the Tribunal. He described how he and his family had been harassed by Fijian people living nearby who had demanded money from them. He described the difficulty situation for Indo-Fijians generally in that country. The Tribunal considered his evidence and said at page 141 of the court book:
The Tribunal is sympathetic to the economic hardship of the applicant's family and the fact that they suffer harassment from Fijians living near where the family home is located. The Tribunal accepts that the family may well have difficulties renting accommodation elsewhere and that any difficulties they may have in finding employment would be a result of the general downturn in the Fijian economy rather than for any convention reason.
The Tribunal went on to say:
The Tribunal is not satisfied that Indo-Fijians are denied their basic rights or that persecution or mistreatment of them is permitted or condoned by the security authorities or by the Fijian government. The Tribunal is satisfied that Indo-Fijians do not face a real chance of persecution by the Fijian authorities.
The fact is that the Refugee Review Tribunal was not satisfied on the facts that the Applicant has made out his case. The Federal Magistrates Court does not have the power to re-hear an application and re-consider the facts. The court's duty is to decide whether the RRT has acted according to law. Whilst the Applicant's affidavit claims that the Tribunal failed to act in accordance with natural justice and even if I were to consider that assertion as part of the Applicant's application, it does not give any particulars as to why the Tribunal failed to give the Applicant natural justice.
From the court book, it appears the Applicant was treated properly. He was granted an adjournment when his migration adviser sought one. He was given the opportunity to give oral evidence and he was able to be represented by his adviser. There is no evidence that the Tribunal considered matters that the Applicant was not aware of, nor is there any evidence of any bias or apprehended bias or bad faith.
The Applicant's complaint, in effect, is that the Tribunal did not accept his evidence. The Applicant's application does not contain any particulars of any breach of the law or of fairness by the Refugee Review Tribunal. The Applicant's affidavit, even taking it as part of the application, refers to a denial of natural justice but provides no particulars as to how or why. The Applicant was given the opportunity to file an amended application and he has chosen not to do so. There is no reviewable error. The application is dismissed.
The Applicant, I note, was advised by Respondent's letter of
13 October 2004 of their request that he file and serve an amended application by 27 October. They warned him that they would seek an order dismissing his application with costs if he did not do so. This is an appropriate case for an order for costs and I propose to order that the Applicant is to pay the Respondent's costs of this application.
I make these orders:
(1)The application is dismissed.
(2)The applicant is to pay the respondent's costs in the sum of $2500.
(3)I direct that a transcript of my reasons for this decision be made available.
(4)I direct that the application is to be removed from the list of cases awaiting finalisation.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V Lee
Date: 16 February 2005
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