SZDPG v Minister for Immigration (No.2)
[2005] FMCA 62
•21 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDPG v MINISTER FOR IMMIGRATION (No.2) | [2005] FMCA 62 |
| MIGRATION – Review of Refugee Review Tribunal decision – visa – protection visa – applicant citizen of India – fear of persecution – where application originally dismissed for non-appearance – no reviewable error. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth)
| Applicant: | SZDPG |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 1486 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 Sim Clayton Utz |
ORDERS
The Application is dismissed.
The Applicant is to pay the Respondent’s costs in this Application fixed in the sum of $1,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1486 of 2004
| SZDPG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Application
This is an application to review a decision of the Refugee Review Tribunal. The applicant is a citizen of India. On 24 April 2003 he applied for a protection visa. He claimed to fear persecution. He said that in March 2000 or shortly afterwards he saw the police open fire at people conducting a demonstration. Five people were killed. He said that later there was to be an inquiry into the shootings. He was not willing to give evidence because he was worried about the consequences of giving evidence against the police with the backing of the army.
In November 2002 his village headman told him that the police were still looking for him. He had heard that another man who witnessed the killings had been shot dead by some unidentified armed persons. In December 2002 he obtained a tourist visa and arrived in Australia on
9 March 2003. He then lodged his application for a protection visa. On 23 June 2003 a delegate of the Minister refused his application. The applicant applied to the Refugee Review Tribunal for a review of that decision.
The application was listed for hearing on 12 February 2004. The applicant asked for an adjournment and produced a medical certificate. The Refugee Review Tribunal adjourned the hearing until
5 March 2004. The applicant attended the adjourned hearing and gave evidence. On 20 April 2004 the Refugee Review Tribunal handed down its decision. The Tribunal affirmed the decision of the delegate not to grant a protection visa. The applicant has applied to the Federal Magistrates Court for review of that decision.
The application was originally dismissed because the applicant did not attend. He had produced on an earlier occasion a report of a psychological assessment and I took that into account on
7 December 2004. The assessment diagnosed the applicant as suffering from anxiety and nervousness. The psychologist expressed the view that the applicant would require ongoing psychological contact for a short period. The applicant has filed an amended application. In that application he provides five grounds for review.
In ground number 1 he takes exception to the fact that the Tribunal found that his written and oral descriptions of the event were considerably different and the Tribunal could not be satisfied that he had witnessed the incident. In respect of this the applicant said that the Tribunal never put this to him during or after the hearing for his comments. He said the Tribunal did not warn him of the consequences of giving a different account at the hearing. He says that he had confirmed at least twice at the hearing that the claim in his visa was true.
He submits that the fact that a person does not repeat to the Tribunal a claim set out in their application for a protection visa does not mean that the claim is not true. It is quite clear that this ground is based entirely on the facts. In fact he is seeking a merits review of the Tribunal's decision. The reason why the Tribunal did not accept his claim was because the Tribunal did not accept his evidence. That is a matter of fact which is purely a matter for the Tribunal. In any event it is clear that the Tribunal did put to him that the Tribunal was concerned about his evidence. At page 91 of the court book in paragraph 3 the Tribunal says:
I asked Mr SZDPG why his account of the event he witnessed in 2000 differed so considerably from his written claims. He responded that it was very distressing seeing these things as it had been in 1994. I told him that I understood that but that did not explain the differences between his two accounts of the one event.
At page 92 of the court book in the second paragraph the Tribunal says:
I put to Mr SZDPG that his account of witnessing of the killings seemed implausible.
The hearing was adjourned for a few minutes to allow the applicant to consider what further evidence he wished the Tribunal to provide. In my view the Tribunal did make it clear to the applicant that giving different accounts of the one event was a serious problem as far as his case was concerned.
In ground number 2 the applicant claims that the Tribunal has no evidence to conclude that he was not a witness to the incident. The applicant must understand that it is up to him to satisfy the Tribunal that he is a refugee and it is not up to the Tribunal to disprove his claim.
In ground number 3 the applicant complains that on page 12 of the decision the Tribunal found that it was implausible that the intelligence agencies would not have warned or killed him or his colleague that night. He gives two grounds of complaint in respect of that matter. First, he said that the Tribunal asked itself irrelevant questions to reach those findings. Unfortunately he does not say what those irrelevant questions were.
Second, he said that the Tribunal's findings are based on assumptions and there was no evidence or material provided in support of those findings. As I said before it is up to the applicant to satisfy the Tribunal and it is not up to the Tribunal to find evidence to disprove his claim. I agree with the submission by Mr Sim on behalf of the respondent that grounds 1, 2 and 3 are no more than a review of the facts and a request for a merits review.
Ground number 4 of the application contains a complaint about the Tribunal relying upon independent advice and not giving the applicant an opportunity to make comments. The independent advice is country information which relates only to India's intelligence agencies and not specifically to the applicant or to any other person. The Tribunal does not have a duty to refer those matters to the applicant prior to making a finding.
In ground number 5 the applicant says the Tribunal fell into jurisdictional error in rejecting the applicant's claim. He provides no particulars as to why the Tribunal fell into jurisdictional error or how it did. It remains no more than a bald assertion. In oral submissions the applicant complained that the Tribunal asked him for proof but that he did not have proof. He said that it was a legal error for the Tribunal to ask him to provide proof. As I said before it is up to the applicant to satisfy the Tribunal.
I have read the respondent's written submissions and I agree with the conclusions and the respondent's oral submissions. In summary, grounds 1 to 3 of the application do no more than seek a merits review of the RRT decision. There is no breach of procedural fairness as alleged in ground 4. There is no proof of jurisdictional error as alleged in paragraph 5. I am satisfied that the Refugee Review Tribunal decided this matter on the facts and there is no reviewable error. The application will be dismissed.
Costs follow the event. The applicant has been unsuccessful in his application. I order that the applicant is to pay the respondent's costs of this application in the sum of $1500. The application is removed from the list of cases awaiting finalisation.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 1 February 2005
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