SZFEY v Minister for Immigration
[2005] FMCA 1269
•18 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFEY v MINISTER FOR IMMIGRATION | [2005] FMCA 1269 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of a decision of the RRT affirming a decision of a delegate of the Minister not to grant a protection visa – Applicant a citizen of India – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.475A |
| Minister for Immigration & Multicultural & Indigenous Affairs ex parte Durairajasingham (2000) HCA 1; (2000) 168 ALR 407 at [67] |
| Applicant: | SZFEY |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 3591 of 2004 |
| Judgment of: | Scarlett FM |
| Hearing date: | 18 August 2005 |
| Date of Last Submission: | 18 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 18 August 2005 |
REPRESENTATION
| The Applicant: | In person |
| Solicitors for the Respondent: | Ms Crawley Clayton Utz |
ORDERS
The application is dismissed.
The Applicant is to pay the Respondent’s costs fixed in the sum of $4,400.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3591 of 2004
| SZFEY |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 27 October and handed down on 18 November 2004.
The decision of the Tribunal affirmed a decision by a delegate of the Minister that had been made on 19 May 2004 refusing a Protection Visa to the applicant.
The short facts of the matter are that the applicant is a young man from India. He arrived in Australia on 12 November 2003 and he lodged an application for a Protection Visa on 3 May 2004. After his application was refused on 25 May 2004 the applicant applied to the Refugee Review Tribunal for a review of that decision. The Tribunal wrote to the applicant saying that it was not able to make a favourable decision on the basis of the written material before it. For that reason the Tribunal invited the applicant to attend a hearing and give evidence on 28 June 2004.
The applicant did attend and did give evidence. The Tribunal member asked him a number of questions about his evidence. The Tribunal made its decision on 27 October 2004.
The applicant claimed that he was active in politics and gave speeches in support of a Congress Party in India. He said that this led to opposition from other parties, namely the BJP and RSS. A particular member of that party, a man called Chenna Reddy, in fact threatened him with violence in an effort to stop him supporting the Congress Party.
The applicant's family, namely his father; owes money to Mr Reddy. Mr Reddy wanted the applicant to marry his daughter on the basis that the money owed by the applicant's family would be deducted from the dowry that would otherwise be paid. The applicant was, to say the least, reluctant to marry Mr Reddy's daughter. He described her as mentally retarded and a person who had many boyfriends. He did not see her as an ideal wife at all. Unfortunately, the applicant's refusal to marry Mr Reddy's daughter did not go down well with Mr Reddy. Over a considerable period of time the applicant was faced with considerable threats and pressure arising from his refusal to marry.
Eventually he moved away and went to live with relatives. Then the applicant arrived in Australia on a student visa. He says that if he has to return to India he will again be faced with the unattractive prospect of being forced to marry Mr Reddy's daughter and would not be able to obtain assistance from the police. He said that the police were corrupt and would not provide assistance in this case.
The applicant filed an amended application on 2 March 2005. He sets out eight grounds of his application. I will briefly summarise them.
i)The Tribunal failed to take into account a relevant consideration that he was an active member of the Congress Party.
ii)The Tribunal failed to take into consideration that, as a member of his family, he was under constant threat of harm from Mr Reddy's hoodlums and as such he was a member of a social group that feared persecution. This was exacerbated by his inability to obtain protection from the State Police.
iii)The Tribunal failed to take a relevant consideration into account; namely the constant harassment that he suffered for almost three years.
iv)That the Tribunal used critical adverse information against him which was neither provided to him before the hearing nor put to him during the hearing.
v)
That the Tribunal misapplied the test or alternatively
mis-informed him about the test.
vi)That the Tribunal's reasoning was so irrational or illogical as to show a failure to perform the review function at all.
vii)The Tribunal member failed to exercise its jurisdiction in that it failed to give proper and adequate reasons.
viii)The Tribunal failed to consider all of the applicant's claims and issues.
I have read through an outline of submissions on behalf of the respondent. In that document the Minister's solicitors provide detailed answers to all of the grounds raised by the applicant. I have heard an oral submission from the applicant in which I asked him to elaborate on each of the grounds that he had raised and I asked him to also give reasons as to why he believed that the Tribunal was in error.
In the submission on behalf of the respondent, it was put that the Tribunal dealt with the applicant's claims comprehensively and was not satisfied that he had a well-founded fear of persecution. The Tribunal accepted the fact that the applicant's family owed money to Mr Reddy and that the applicant's refusal to marry Mr Reddy's daughter created some hostility.
It was also put, and I believe correctly, that the Tribunal did not accept that the applicant faced any real chance of persecution for reasons of his political opinions.
The Tribunal made a number of factual findings about the extent of the applicant's involvement in Congress Party politics and the Tribunal found that even if the applicant did have a real chance of persecution from Mr Reddy that this persecution would be of a private and domestic nature and was not convention related.
The Tribunal was satisfied that a reasonable level of State protection was available in India. The Tribunal did not accept that the applicant had a genuine fear of persecution and cited the applicant's delay in applying for a Protection Visa.
I have taken these matters into account. I am satisfied that a number of the applicant's claims are in fact an attempt to seek a merits review of the Tribunal decision. The factual findings made by the Tribunal; namely that the applicant's family owed money to Mr Reddy, and
Mr Reddy saw this as a means of marrying off his apparently unmarriageable daughter, may well have given rise to hostility when the applicant refused but does not amount to persecution for a Convention reason.
On the Tribunal's factual findings, the party's political affiliations are of little relevance compared to the facts of the applicant's family owing money to someone whose politics they apparently do not share and the applicant's refusal to marry the daughter of this man. If the applicant feared persecution for reasons of political opinion, it is difficult to see how Mr Reddy would want his daughter to marry someone from the opposing political party.
I asked the applicant about his claim of the Tribunal using critical adverse information about his case and not putting it to him and he was not able to provide an example. I gather it refers to independent country information and of course the Tribunal has no obligation.
The applicant was not able to remember why he claimed that the Tribunal had misapplied the test or misinformed him about the test.
The applicant was not able to give an example as to why the Tribunal member failed to give proper and adequate reasons and in my view the decision is a detailed one which does contain reasons.
The argument that the Tribunal's reasoning was irrational or illogical stems entirely from the applicant's refusal to accept the Tribunal's factual findings.
In effect; this is a case where most of the grounds are an attempt to obtain a merits review. I have said earlier that it is now trite law that a Court exercising the power of judicial review will not interfere with a finding by the Refugee Review Tribunal on the credibility of an applicant. In dealing with a claim that the Tribunal breached s.430(1) of the Migration Act by failing to set out reasons for its finding that an applicant's claim was utterly implausible, the High Court had this to say:
However this was essentially a finding as to whether the prosecutor should be believed in his claim, a finding on credibility, which is the function of the primary decision maker par excel lance. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the subset of reasons why it accepted or rejected individual pieces of evidence.
I refer to Re Minister for Immigration and Multicultural Affairs ex parte Durairajasingham (2000) HCA 1; (2000) 168 ALR 407, McHugh J's decision at paragraph 67.
The application is largely based on fact and the Tribunal did not accept that the applicant was threatened with harm by Mr Reddy for reasons of his support of the Congress Party. The Tribunal found there was no evidence that the BJP or the RSS threatened or harmed the applicant for reasons of his political opinion. The Tribunal did not accept that the applicant faced any risk of harm from either of those organisations. Those are findings that are entirely within the province of the decision maker.
I find there is no reviewable error. I have read through the judgment to ascertain whether I could discern any error of jurisdiction that had not been raised by the applicant as he is unrepresented. I could not find any jurisdictional error. In my view; there is no reviewable error. This is a privative clause decision and as there is no reviewable error, the application must be dismissed.
There is an application for costs on behalf of the respondent Minister. The applicant has been wholly unsuccessful in his claim. It is normally the case that a successful party can expect to receive an order that the unsuccessful party should be responsible for their costs on a party and party basis. I see no reason to depart from this practice in this case. The amount sought is a lump sum of $4,400.00. It is the practice of the Federal Magistrates Court to make a cost in a fixed amount wherever possible. In my view; the sum of $4,400.00 falls within the range provided for costs in the Federal Law Jurisdiction as set out in the Federal Magistrates Court Rules. It is an appropriate figure.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 29 August 2005
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