SZERH v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZERH v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1023

MIGRATION – Refugee – impermissible merits review – application dismissed.

Migration Act 1958, s.427(1)(d)

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Director of Animal and Plant Quarantine v Australian Pork Ltd (2005) 146 FCR 368

Applicant: SZERH

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3296 of 2004

Judgment of: Nicholls FM

Hearing date: 13 July 2006

Date of Last Submission: 05 July 2006

Delivered at: Sydney

Delivered on: 21 July 2006

REPRESENTATION

Counsel for the Applicant: Nil

Solicitor for the Applicant: Mr. C. Jayawardena

Counsel for the Respondents: Mr. T. Reilly

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3296 of 2004

SZERH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application filed in this Court on 9 November 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 12 October 2004 and handed down on 2 November 2004 to affirm the decision of the respondent Minister made on 10 June 2004 to refuse a protection visa to the applicant. It is appropriate to make an order joining the Tribunal as the second respondent in these proceedings.

2. The applicant is a citizen of India, of Sikh background, who came to Australia on 4 May 2004. The applicant’s claims are set out in his application for a protection visa which was lodged with the assistance of a migration agent on 3 June 2004 (Court Book (“CB”) 1 to CB 28, and in a statutory declaration reproduced at CB 27 to CB 28), and in his application for review (CB 40 to CB 48). The applicant gave evidence before the Tribunal and the Tribunal's account of what occurred at the hearing is in its decision record reproduced at CB 63.7 to CB 66.8.

3. The applicant’s claims, as they were put before the Tribunal, were essentially that his family had been supporters of the Akali Dal Party, a traditional Sikh party engaged in the support of the rights of Sikhs in India. He claimed that he had rejected the move away from “the hardline attitude” that had previously characterised the work of the Akali Dal, and (at least) in April 2004 he became a follower of Mr. Daljit Singh Bhittu who had declared a new political party. The applicant claimed to have actively campaigned for the emergence of this party and that this had led to conflict with the Akali Dal, and with other major political parties traditionally opposed to the Sikhs. He claimed that security forces began arresting activists (sometime in 2004) and following the…