SZDHP v Minister for Immigration
[2005] FMCA 658
•13 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDHP v MINISTER FOR IMMIGRATION | [2005] FMCA 658 |
| MIGRATION – Notice of motion to set aside the decision of Registrar – where the Registrar had dismissed the application for review of decision of RRT – where the applicant had failed to attend the directions hearing – whether the Tribunal made a finding that the applicant could relocate – where the Tribunal found elements of the applicants claim implausible – where the Tribunal made assessment of the applicant’s credibility based upon independent country information. |
| Federal Magistrates Court Rules 2001 |
| Kamal v The Minister [2002] FCA 818 Re MIMIA; Ex parte Durairajasingham [2000] 168 ALR 407 W148/00 A v The Minister [2001] FCA 679 WADY v The Minister [2002] FCA 1091 SPKB v The Minister [2003] FCAFC 296 |
| Applicant: | SZDHP |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1086 of 2004 |
| Judgment of: | Raphael FM |
| Hearing date: | 13 May 2005 |
| Date of Last Submission: | 13 May 2005 |
| Delivered at: | Sydney |
| Delivered on: | 13 May 2005 |
REPRESENTATION
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application is dismissed.
The applicant pay the respondent's costs assessed in the sum of $500 together with any reserved costs ordered by the Registrar.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1086 of 2004
| SZDHP |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
On 14 April 2004 the applicant commenced proceedings seeking judicial review of a decision of the Refugee Review Tribunal made on 24 February 2004 and handed down on 16 March 2004. On 13 July 2004 a directions hearing was held in this court. Directions were made requiring the applicant to file and serve an amended application and noting that if he did not do that the respondent could list the matter in a non-compliance list. Otherwise the matter was adjourned for further directions on 18 January 2005 for the purposes of setting down the matter for hearing. The applicant did not amend his application and the respondent sought to place the matter in the non-compliance list in February 2005. However, the hearing for directions on 18 January 2005 was not cancelled and the respondent attended. The applicant did not. The Registrar dismissed the application pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules as there was no appearance by the applicant.
On 7 February 2005 the applicant filed a notice of motion seeking to set aside the decision of the Registrar although he could equally have asked for review of that decision. He filed an affidavit in which he stated that he had failed to appear before the court because of the mental stress which he was suffering as a result of a close cousin being drowned in the Tsunami event at Chennai Beach on 26 December 2004. It is notorious that some hundreds of Indian people were drowned at Chennai Beach on that day. I have no other independent evidence that the applicant's cousin was among them but for the purposes of these proceedings I am prepared to accept the truth of his affidavit. The applicant says that he was in such a confused state on 18 January that he completely forgot to appear in court.
The applicant is not represented. When I asked him why he believed the Tribunal had erred in law in the manner in which it had come to its conclusions in his case he told me that it was because the Tribunal had suggested that he could relocate but he said that he could not do so. I asked him if that was all and he told me that it was. His review application says that he disagrees with the decision of the Tribunal which he claims was made without giving any importance to his evidence and in denial of his rights to natural justice. He has not particularised those complaints.
I have now read the decision of the Tribunal carefully on two occasions and I am unable to find within it any finding by the Tribunal that the applicant could relocate. There may have been some discussion to that effect but it was not a ground upon which the Tribunal determined that the applicant was not a person to whom Australia had protection obligations. The reasons that the Tribunal came to that conclusion were that it did not believe the applicant when he told it that he was employed of a teacher of Sanskrit in Kerala. The applicant had alleged that he was beaten up by Muslim co-religionists because of his profession which involved ministering to Hindus. Because the Tribunal did not believe that the applicant did teach Sanskrit it did not believe that he had been beaten up for that reason. The Tribunal also found other elements of the applicant's claims implausible.
The Tribunal assessed the applicant's claims against the appropriate criteria and discussed with him independent country information including information about the existence of the rule of law in the Republic of India. The Tribunal concluded from independent evidence available to is that India was a long-standing parliamentary democracy with an independent judiciary, a broad range of democratic institutions and comprehensive framework for the protection of human rights. It added at [CB109]:
In India and the State of Kerala there are laws against inciting religious or communal violence and non-discriminatory laws against assault and related crimes, a State Commission for Human Rights, an Ombudsman and Legal Services Authority. Accordingly, if members of Islamic associations would seek to harm the applicant those actions would be contrary to the law of India and the State of Kerala and therefore illegal. I find that the applicant would be able to seek the protection of state authorities against harm.
The courts have consistently stated in such decisions as Kamal v The Minister [2002] FCA 818, Re MIMIA; Ex parte Durairajasingham [2000] 168 ALR 407, W148/00 A v The Minister [2001] FCA 679, WADY v The Minister [2002] FCA 1091, SPKB v The Minister [2003] FCAFC 296 the decisions upon credibility are for the Tribunal alone. The decision of this Tribunal upon the applicant's credibility is based upon its assessment of his evidence and the comparable independent country information. It would not be open for this court to set the decision aside on the grounds that it disagreed with, even if it strongly disagreed with, the Tribunal's findings. In those circumstances there really is no utility in hearing this matter. If there is no utility in hearing a claim because it is bound to fail there is really no point in reviewing the decision of the Registrar and restoring the matter for hearing. I dismiss the applicant's application and I order that he pay the respondent's costs which I assess in the sum of $500 together with any reserved costs ordered by the Registrar.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
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