SZDTE v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDTE v MINISTER FOR IMMIGRATION [2005] FMCA 297

MIGRATION – Review of decision of Refugee Review Tribunal – refusal of protection visa – Sikh independence movement in India – constructive failure to exercise jurisdiction – correlation between Sikh religion and politics – misconstrued and misapplied law – failure to use correct test – no reviewable legal error – application dismissed.

Migration Act 1958 (Cth)

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Ratumaiwai v Minister for Immigration & Multicultural Affairs [2002] FCA 311

Applicant: SZDTE

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG1696 of 2004

Judgment of: Mowbray FM

Hearing date: 22 February 2005

Delivered at: Sydney

Delivered on: 22 February 2005

REPRESENTATION

Counsel for the Applicant: Mr J. Patel

Solicitors for the Applicant: Harpers Solicitors

Counsel for the Respondent: Mr J. Smith

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application fixed in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1696 of 2004

SZDTE

Applicant

And

MINISTER FOR IMMGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an ex tempore judgment which has been revised and edited from the transcript.  It relates to a decision of the Refugee Review Tribunal (the Tribunal) made on 8 May 2000 and handed down on

   
   

   18 May 2000.

2. The applicant is a citizen of India who arrived in Australia on

   
   

   22 October 1997 on a visitor visa.  On 2 December 1997 he applied for a protection visa.  That application was refused by a delegate of the Minister on 18 May 1998.  The applicant lodged an appeal to the Tribunal on 1 June 1998 and a hearing was held on 14 March 2000.  The Tribunal affirmed the decision of the Minister’s delegate not to grant a protection visa to the applicant on 8 May 2000.  The decision was handed down on 18 May 2000.  An application was made to this Court on 3 June 2004.

Claims before the Department and the Tribunal

1. The applicant claims to be at risk in India due to his association with the Sikh movement and in particular due to his close association with the leader of the movement, Bhai Surinder Singh Shinda (Bhai).  He claims that in September 1989 when Bhai was wanted by the police, he was blindfolded by the police and taken to an undisclosed detention centre.  He was questioned for information about Bhai by a senior ranking Hindu officer and offered money and protection to be an informant.  When he refused he was physically abused and experienced “third degree torture”. 

2. He claims that after 11 months his family paid a municipal councillor for his release.  From August 1990 he had to report regularly to the police. Some police officers questioned him about weapons.  With intervention by the municipal councillor he was only required to…