SZHVP v Minister for Immigration

[2006] FMCA 633

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHVP v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 633

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application as not disclosing an arguable case.

Migration Act 1958 (Cth), s.91X

Federal Magistrates Court Rules2001 (Cth)

Applicant: SZHVP

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG3694 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 K Rose
Phillips Fox

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,600.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3694 of 2005

SZHVP

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. 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 RRT handed down its decision on 22 November 2005.  These proceedings commenced with an application filed on 15 December 2005.  I find that that application was filed within time. 

2. The applicant is from India and had made claims of persecution from terrorists.  Essentially, the applicant asserted a failure of state protection.  The applicant arrived in Australia on 18 February 2005.  On 31 March 2005, he lodged an application for a protection visa with the Minister's Department.  On 3 June 2005, a delegate of the Minister refused that application.  On 27 June 2005, the applicant sought review of that decision by the RRT. 

3. In his protection visa claims, the applicant asserted that he was formerly a serviceman in the Indian Army.  He asserted that he was being pursued by terrorists from the Laskar-e-Toiba organisation.  This apparently was an act of revenge for injuries sustained by members of Laskar-e-Toiba after they failed to kidnap the applicant.  In the course of the hearing before me today, the applicant asserted that this was a mistake and in fact he was being pursued by Al‑Qaeda terrorists. 

4. The RRT considered the applicant's claims but found them far-fetched.  The RRT conducted a hearing on 25 October 2005.  It is plain from the discussion by the presiding member (court book, pages 69 to 71) that the presiding member found the applicant's claims not credible. 

5. This matter came before me for first court date directions on 27 January 2006. It was not apparent at that time whether the application disclosed an arguable case. I made orders for material to be filed and listed the matter for hearing today pursuant to rule 44.12 of the Federal Magistrates Court Rules2001 (Cth) (“the Federal Magistrates Court Rules”).

6. I gave the applicant the opportunity to file and serve affidavit material in support of his application, as well as any amended application, by 19 April 2006.  The applicant relies upon his amended application filed on 13 April 2006.  He has not, however, filed any evidence in support of it.  The only evidence I have before me is the court book filed by the Minister on 6 March 2006. 

7. The amended application contains 12 numbered paragraphs of which 11 purport to assert grounds of review.  With the exception of grounds contained in numbered paragraphs 6, 8, 9 and 13, the grounds are either an attack on the merits of the RRT decision or bald unparticularised assertions.  Grounds 6, 8, 9 and 13 might have raised legal issues requiring further consideration if there had been any evidence to support those grounds.  However, there is no supportive evidence.  In the absence of evidence, those grounds must fail.  To the extent that the applicant contests the merits of the RRT decision, his application must also fail.  On my reading of the RRT decision, there is no jurisdictional error. 

8. I find that the amended application fails to disclose an arguable case. I will therefore order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules.

9. I note in passing that the applicant had asserted some experience at close proximity in Kashmir with the Laskar-e-Toiba terrorist group. He asserted orally today that this was, in fact, with the Al-Qaeda terrorist organisation. If there is any truth at all in his assertions, they ought to be considered by organisations with appropriate responsibility for Australian national security. With that in mind, the Minister's Department should consider referring the RRT decision and the applicant's claims to the Attorney-General's Department for such action as the Attorney-General's Department considers appropriate. I will make no order and, indeed, s.91X of the Migration Act 1958 (Cth) precludes me from disclosing directly details about the applicant. Such restrictions, however, do not apply to the Minister or her Department.

10. I will order that the application be dismissed.

11. The application having been dismissed, costs should follow the event.  The Minister seeks an order for costs fixed in the sum of $1,600 on a party/party basis, that is $900 less than the amount prescribed pursuant to the Federal Magistrates Court scale of costs.  The applicant stated that the would pay the costs when he was able to do so. 

12. 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 $1,600.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  5 May 2006