SZDFQ v Minister for Immigration
[2006] FMCA 579
•20 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDFQ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 579 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in India – no reviewable error found – application dismissed. |
| Applicant: | SZDFQ |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1020 of 2004 |
| Judgment of: | Driver FM |
| Hearing date: | 20 April 2006 |
| Delivered at: | Sydney |
| Delivered on: | 20 April 2006 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms A Nanson Australian Government Solicitor |
ORDERS
The Presiding Member and the Principal Member be deleted as respondents and the Refugee Review Tribunal be joined as the second respondent to the application.
The 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 $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1020 of 2004
| SZDFQ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”). The decision was handed down on 16 March 2004. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant had made claims of persecution in India relating to political activities. The relevant background facts are adequately summarised in paragraphs 2 and 3 of the Minister's written submissions filed on 19 April 2006. I adopt those paragraphs as background for the purposes of this judgment:
The applicant applied for the visa on 7 July 2003: court book, pages 1‑34. The delegate refused the visa on 21 November 2003: court book, pages 37-46, and the applicant applied to the RRT for review on 11 December 2003: court book, pages 48-51. The RRT held a hearing on 17 February 2004.
The applicant claimed to fear persecution for reason of his political opinion in India. He claimed to be a member of the Communist Party of India (Marxist) (“CPI(M)”) in Tamil Nadu and to fear harm for this reason from members of the Dravida Muneta Kazhagam Party (“DMK”) and the police. The applicant claimed that he had been beaten by DMK members in 1997, 1998 and 1999, and arrested (although released on bail without further action) by the police in 1983 and 1997. He claimed to have moved to Madras in March 2003 before coming to Australia on 9 June 2003. The RRT accepted the applicant’s claims of past harm, albeit not without some reservations, but gave the applicant the benefit of the doubt: court book, page 72.2. However the RRT found that the applicant was of no interest to the DMK or the police after October 1999, noting that it was implausible that he would not have been located in this period if (as he claimed) he was of continuing interest to the DMK and police. The RRT rejected the applicant’s claims that his family were threatened after October 1999, and found that they had no interest in the applicant at the time of its decision or the reasonable foreseeable future: court book, page 73.5. The RRT also found (although as it noted this was not strictly necessary given its findings) that it was reasonable for the applicant to relocate within India, as he had done in the past: court book, pages 74‑76.
The applicant relies upon his amended application filed on 22 September 2004. He confirmed that that application superseded an affidavit he had filed on 9 August 2004. It appears that the applicant was confused as to the difference between an amended application and an affidavit. The affidavit is dealt with in the Minister's written submissions, but I do not need to deal with it any further.
The grounds advanced in the amended application are difficult to follow. There is confusion as between grounds and particulars of grounds. In some respects the application makes no sense at all. I mention in particular what purports to be ground 5 under the heading "Particulars". In the absence of coherently expressed grounds illuminated by particulars linked to the grounds the amended application assists the applicant very little. Some of the grounds might have raised a real issue if they had been supported by evidence. However, the only evidence I have before me is the book of relevant documents filed on 6 July 2004.
I gave the applicant the opportunity to make oral submissions in support of his amended application. However, his submissions were limited to arguments in support of his protection visa claims. He was unable to expand upon the legal issues. As best as the Minister was able to understand them the legal issues are dealt with in paragraphs 5 through to 13 of the Minister's legal submissions.
I agree that no jurisdictional error is apparent on the face of the amended application. Neither is any jurisdictional error apparent to me from my own reading of the RRT decision and reasons. The RRT appears to have met its statutory obligations. It appears to have considered all of the applicant’s claims.
The applicant sought to mount an attack on the relocation finding made by the presiding member, but that attack fails for two reasons. First, the relocation finding was not determinative. The finding was unnecessary because the presiding member was in no doubt that the applicant's fear of persecution in his home State was not well-founded. Secondly, and in any event, the RRT, in my view, gave adequate consideration to the issue of relocation.
I find that the decision of the RRT is free from jurisdictional error. It follows that the decision is a privative clause decision and the application must be dismissed.
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $4,500. The applicant did not wish to be heard on costs. I accept that not less than $4,500 has been reasonably and properly incurred on behalf of the Minister when assessed on a party and party basis. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $4,500.
The other matter which should be resolved is the naming of the respondents. The amended application names the Minister, the presiding member and the principal member of the RRT. The proper and necessary respondents are the Minister and the RRT. I will order that the presiding member and the principal member be deleted as respondents and that the RRT be joined to the application as the second respondent.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 27 April 2006
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