SZEDA v Minister for Immigration - [2005] FMCA 718

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEDA v MINISTER FOR IMMIGRATION

[2005] FMCA 718

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the Applicant a protection visa – Applicant a citizen of India – relocation – whether applicant could relocate within India – no jurisdictional error – no reviewable error.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) ss. 475A, 477.

Maltsin & Anor v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 662 - cited
Randhawa v Minister for Immigration (1994) 52 FCR 437
SZBDL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 58 - followed
Applicant NAHF of 2002 and Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140 - cited

Applicant:

SZEDA

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURL & INDIGENOUS AFFAIRS

File No:

SYG 2461 of 2004

Delivered on:

18 May 2005

Delivered at:

Sydney

Hearing date:

18 May 2005

Judgment of:

Scarlett FM

REPRESENTATION

Applicant:

In Person

Solicitor for the Respondent:

Mr Bird

Solicitors for the Respondent:

Phillips Fox

ORDERS

That the Application is dismissed.
That the Applicant is to pay the Respondent‘s costs fixed in the sum of $3,900.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2461 of 2004

SZEDA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application for a review of a decision of the Refugee Review Tribunal.
The Tribunal made its decision on 22 June 2004. The Tribunal handed down its decision on 14 July 2004. The Tribunal affirmed the decision of a delegate of the Minister not to grant a protection visa to the Applicant.
The Applicant seeks a review of that decision. The background is that the Applicant is a citizen of India. He is from the Tamil Nadu area. He arrived in Australia on 20 January 2004.
On 2 February 2004 he applied for a protection visa. On 22 March 2004 a delegate of the Minister refused to grant that visa. On 14 April the Applicant applied to the Refugee Review Tribunal.
The Applicant, though his adviser, submitted a medical certificate to the Tribunal on 30 April. That medical certificate said that the Applicant was suffering from stress, and post traumatic stress disorder. The medical certificate said that the Applicant had been referred to counselling and to a psychiatrist.
The hearing was adjourned. The adjourned hearing took place on

18 June 2004. The Applicant attended that hearing and there was a Tamil interpreter present.
The Applicant told the Tribunal that he had been to counselling with the Red Cross on two or three occasions. He said that he was not entirely sure what the counsellors had told him, because they said it in English. The Applicant said that he had seen a psychiatrist.
The Tribunal member asked the Applicant a number of questions about his application. The Applicant told the Tribunal that he did not include in his original statement a claim that he had been arrested and detained by the police. He said that he feared that he would be regarded as an extremist if he admitted that he had been arrested.
The Applicant admitted that he had received a letter from the Tribunal on 29 April, dated 29 April 2004. That letter sought further information.
The Applicant did not reply to the letter because he had no money for a lawyer and he did not know what to do. The Tribunal asked the Applicant, wasn't it true that he had not suffered any serious harm or mistreatment in India? The Applicant agreed that he had not suffered serious harm. The Applicant said that he feared that he could suffer serious harm in the future.
The Tribunal asked the Applicant why he could not move to another part of India if he had difficulties in Tamil Nadu. The Applicant said that it would be difficult for him to move to another part of India. He said he would have language problems and it would be difficult to get a job. The Applicant speaks Tamil but does not speak Hindi. He told the Court that he would need to know Hindi a lot better if he were to live in other parts of India.
The Applicant told the Tribunal that he wanted more time to provide further documents. He was not able to tell the Tribunal what those documents were, except that he wanted documents to assist his claim. He told the Tribunal that he might be able to get documents to show that he had been mistreated and bashed by his political opponents. The Tribunal member pointed out that he had not made that claim, either in his written statement to the department, or at the RRT hearing.
The Applicant again pressed his claim to be given further time to provide documents from India. The Tribunal member refused that application for three main reasons:
(1) He had already had one hearing postponed due to illness.
(2)He could not identify to the Tribunal what sort of documents he wished to lodge.
(3)He did not explain how these documents would support him.
The Applicant filed an amended application on 25 October 2004. He set out seven grounds. I have considered those grounds and they appear to fall into three categories. One, he did not mention in his application for a visa that he had been obtained and assaulted by the police because he had been advised not to put this in his application for fear of being seen as an extremist.
The second main ground is that the Tribunal did not give him an adjournment to obtain further documents to assist his case.
The third ground is that the Applicant has not been able to obtain advice from a lawyer or a migration agent, because he does not have the money to do so. The Tribunal, he considers, did not take this sufficiently into account.
The fact that the Applicant did not include information about being detained and assaulted by the police in his original application is hardly the fault of the Tribunal. If the Applicant wished to persuade the Department of Immigration and Multicultural and Indigenous Affairs that he had a well founded fear of persecution, it is surprising that he did not put those facts in his original application.
The Tribunal just did not accept his explanation for leaving that material out.
Turning to the ground that the Applicant did not have any advice from a lawyer or migration agent, that is a very common situation in this jurisdiction. The Tribunal would have been very used to people in the same position as the Applicant.
I turn to the Applicant's request for an adjournment so that he could obtain further documents.
It does not appear clear what documents the Applicant hoped to get. the Tribunal rejected the application for an adjournment for three reasons:
(1)The Applicant was not able to identify the documents, or the sort of documents, that he wanted to present to the Tribunal.
(2)The Applicant had already had a considerable amount of time to obtain those documents to support his claim.
(3)The Applicant had already had his hearing postponed for some time due to his earlier illness.
In my view, there were certainly reasons that the Tribunal could rely on in making the decision that he did. Granting an adjournment is a discretionary matter, and it appears to me, with respect, that the Tribunal had sufficient grounds in which to exercise its discretion in the way that it did.
The Tribunal also asked the Applicant why, if he was having trouble in Tamil Nadu, he could not relocate to another part of India. The Applicant said that it would be difficult for him to work and obtain accommodation if he moved to somewhere else in India. He speaks Tamil but he does not speak Hindi.
The fact is, of course, that the Applicant is seeking a visa to remain in Australia where very few people speak Tamil and most people speak English.
The Tribunal appears to me to have applied the correct test as far as relocation was concerned, as set out in the decision of Randhawa and Minister for Immigration & Multicultural & Indigenous Affairs (1994) 52 FCR 437.
For the Respondent Mr Bird submits that whilst a refusal to grant an adjournment can amount to a denial of procedural fairness, the decision either to grant or refuse an adjournment is a matter that is normally within the discretion of the person charged with conduct of the proceedings.
He referred to the decision of Maltsin and Anor v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FMCA 662, and as to the question of the discretion, he referred the Court to Applicant NAHF of 2002 and Minister for Immigration and Multicultural and Indigenous Affairs, [2003] FCA 140.
This is a decision by Hely J, and I refer to paragraph [36] of that decision. The Respondent submits that the RRT has acted fairly and reasonably. I agree with that decision. I am referred to the decision of SZBDL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 58.
This was a case where an applicant had sought an adjournment to produce more documentation, and this request was refused. In SZBDL, Federal Magistrate Driver held at [13] that the refusal was justified and was not procedurally unfair, finding that the applicant had had ample time to put his claims to the RRT. In my view, that decision is persuasive, and I intend to follow it.
The fact is that the conclusions reached by the Refugee Review Tribunal were conclusions on the facts. There was sufficient evidence to justify the Tribunal making the finding that it did. It is not the function of a Court conducting a judicial review to re-examine the facts or to substitute its own view of the facts and those of the decision maker.
I am not satisfied that the Applicant has shown any procedural unfairness. I am mindful of the fact that the Applicant is not legally represented, and I have conducted my own examination of the Tribunal's decision. I am not satisfied that any jurisdictional error is in the Tribunal's decision.
There is no evidence of any error that is reviewable by this Court.
The application is dismissed.
In my view this is a suitable matter for an order for costs. It follows in this jurisdiction that where an applicant is unsuccessful, he or she is required to pay the respondent's costs, and vice versa. The costs are usually payable after 28 days.
The amount of $3,900.00 is sought by the Respondent. In my opinion, having considered the material before me, the amount of $3,900.00 is well within the scale provided by the Federal Magistrate Court's rules.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: V Lee

Date: 26 May 2005