SZDTG v Refugee Review Tribunal

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDTG v REFUGEE REVIEW TRIBUNAL & ANOR [2005] FMCA 1333

MIGRATION – Refugee – no Convention based claims – no reviewable error.

Federal Magistrates Court Rules, r.21.02(2)(a)

Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259
Chen v Minister for Immigration and Ethnic Affairs and Anor (1995) 58 FCR 96

Applicant: SZDTG

First Respondent:

Second Respondent:

REFUGEE REVIEW TRIBUNAL

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 1698 of 2004

Judgment of: Nicholls FM

Hearing date: 12 September 2005

Date of Last Submission: 8 September 2005

Delivered at: Sydney

Delivered on: 21 September 2005

REPRESENTATION

Counsel for the Applicant: Mr. J. Patel

Solicitors for the Applicant: Harpers Solicitors

Counsel for the Respondent: Ms. S. McNaughton

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant to pay the second respondent’s costs set in the amount of $3700, pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1698 of 2004

SZDTG

Applicant

And

REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent

REASONS FOR JUDGMENT

1. This is an application filed in this Court on 3 June 2004 seeking review of the decision of the first respondent, the Refugee Review Tribunal (“the Tribunal”), made on 8 May 2000 and handed down on 18 May 2000 which affirmed the decision of a delegate of the second respondent, the Minister for Immigration and Multicultural and Indigenous Affairs made on 29 April 1998, and notified to the applicant by letter dated 29 April 1998 to refuse a protection visa to the applicant.

2. The applicant is of Sikh background and a citizen of India. In his application for a protection visa lodged with the second respondent's Department he claimed to fear persecution because of socio-political and religious beliefs and because of his association with the Pro Khalistan movement in India. His claims can be found in his application for a protection visa, copied at Court Book 1 to CB 24 and the protection visa decision record at CB 42 to CB 48.

3. The application to this Court was filed on 3 June 2004. By way of affidavit, affirmed by the applicant on 26 May 2004, the applicant asserts that he was denied natural justice and procedural fairness required to be observed by the Tribunal with respect to its review of the delegate’s decision. By way of amended application filed on
   27 October 2004, drafted with the assistance of solicitors, the applicant asserts:

   “1. The Refugee Review Tribunal (The Tribunal) made a jurisdictional error in that it failed to determine the application in accordance with correct law and in accordance with its mandate in as much as the RRT misconstrued and misapplied the definition and notion of “persecution” and “well founded fear” for the purposes of article 1A(2) of the 1951 Convention Relating to the Status of Refuges.

   Particulars:

   The Tribunal erred in…