SZHUY v Minister for Immigration
[2006] FMCA 631
•1 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHUY v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 631 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – show cause application dismissed as failing to disclose an arguable case. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.424A Migration Regulations 1994 (Cth) |
| Applicant: | SZHUY |
First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG3658 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 1 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 1 May 2006 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms N Johnson Sparke Helmore |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3658 of 2005
| SZHUY |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application for an order to show cause why relief should not be granted in relation to a decision of the Refugee Review Tribunal (“the RRT”). The decision was handed down on 24 November 2005 and the original application to the Court was filed on 13 December 2005. On that basis I find that the application was filed within time. The Refugee Review Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from India and arrived in Australia on 2 July 2005.
On 28 July 2005 she lodged an application for a protection visa with the Minister's department. On 11 August 2005, a delegate of the Minister refused that application. On 30 August 2005 the applicant sought review of that decision by the RRT.
The applicant made claims of persecution in India based upon allegations of conflict between Muslims and Hindus. She asserted a leadership role in the women’s movement in India and asserted conflict directed against her by Muslims. She also asserted a political dimension to the conflict. Her allegations centred upon two incidents in India which are well known and well documented. The first was a flag raising ceremony on 15 August 1994 at a town called Hubli. It is well documented that that incident caused community unrest. The other incident was the destruction of the Babri Mosque in 1992.
The RRT conducted a hearing on 1 November 2005. The applicant attended with the assistance of a Kannada interpreter, although the presiding member notes at page 58 of the court book that the applicant spoke English quite well. The court book at pages 58-61 records some detailed discussion between the presiding member and the applicant about her claims. It is clear from that discussion that the member had difficulty accepting the applicant's core claims and that difficulty centred upon the facts that the applicant’s claims were inconsistent with country information about events which are well documented. Under the heading “Findings and Reasons” the presiding member rejected the applicant's claims. It is apparent that the applicant failed before the RRT because she was not believed.
When this matter came before me on 24 January 2006, it was not apparent to me whether the application which the applicant then relied on disclosed an arguable case. I made directions for material to be filed by the parties and listed the matter for a hearing, pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”), before me today.
The Minister filed a court book on 20 January 2006. That is the only evidence that I have before me. The applicant filed an amended application on 20 March 2006. That is the application upon which she relies. Neither the applicant nor the Minister wished to make any submissions. The applicant simply relies upon the contents of her amended application.
That application asserts that the RRT erred in its interpretation of effective State protection for the purposes of the Refugees Convention. That assertion must fail because the RRT decision is silent on that issue. The RRT did not find it necessary to consider whether effective State protection would be available to the applicant. That was because the RRT found that her claims of a well-founded fear of persecution were false.
The applicant also asserts that procedures required by the MigrationAct 1958 (Cth) (“the Migration Act”) and the Migration Regulations to be observed were not observed. The application does not disclose what procedures those were. The applicant was invited to a hearing before the RRT and did attend. It does not appear that any notice was issued to the applicant pursuant to s.424A of the Migration Act, but on my reading of the decision of the RRT, none was required. The decision essentially turned upon country information.
The applicant also asserts that the RRT identified wrong issues, asked wrong questions, ignored relevant material and failed to investigate her claims. There is no support whatsoever for those assertions in the court book.
Finally, the application asserts that the RRT failed to view the humanitarian side of her application in that even though the RRT understood the “plight” of Hindus in India, where “most of the Muslims have a vengeance mentality”, the RRT did not give relief on humanitarian grounds. That assertion presupposes that Hindus in India, as a class, suffer some “plight” at the hands of Muslims. That assertion was certainly not accepted by the RRT. There does not appear to me to be any humanitarian issue which required consideration by the RRT.
There is nothing in the amended application which discloses an arguable case. Neither is any legal issue which might be arguable apparent to me. I find that the amended application fails to disclose an arguable case. I dismiss the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules.
The application having been dismissed, costs should follow the event. The Federal Magistrates Court Rules scale of costs prescribes an amount of $2,500 be payable in the present circumstances. The Minister properly seeks a lesser amount of $2,000. The applicant did not wish to be heard on costs.
I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $2,000.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 4 May 2006
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