SZIWS v Minister for Immigration
[2006] FMCA 1212
•21 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIWS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1212 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – failure to disclose an arguable case. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958, ss.36, 65, 424A |
| Applicant: | SZIWS |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1518 of 2006 |
| Judgment of: | Driver FM |
| Hearing date: | 21 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 21 August 2006 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms E Warner Knight Australian Government Solicitor |
INTERLOCUTORY ORDERS
The Court directs that the Refugee Review Tribunal be joined as the second respondent to the further amended judicial review application.
The application is dismissed pursuant to 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 in the sum of $2,500 in accordance with rule 44.15(1) and paragraph 1(b) of part 2 of schedule 1 of the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1518 of 2006
| SZIWS |
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 show cause application was filed on 25 May 2006. The applicant asserted notification of the RRT decision on 12 May 2006. On that basis I find that the application was filed within time. The RRT affirmed a decision of the Minister not to grant the applicant a protection visa.
The applicant is from India. He claimed that he was embroiled in violent confrontations in business ventures he undertook in India. He was forced to abandon those ventures. He spent significant periods of time out of India in Iraq, Sudan, Saudi Arabia and possibly also Iran. He periodically returned to India and asserted that the problems continued. The applicant asserted a fear of harm in India as a result of ongoing animosity. He claimed an association with the Communist Party of India. He claimed that persons who were in conflict with him were members of the BJP and RSS. He also claimed to be a Christian.
The applicant’s protection visa claims were relatively shortly stated. No additional claims were made in the review application to the RRT. However, the court book, which I received in evidence for the purposes of today’s hearing, establishes that the applicant was invited to a hearing and attended a hearing.
The decision and reasons of the RRT disclose that the applicant was questioned at length about his claims. The presiding member accepted that the applicant had indeed encountered difficulties in various business ventures. The presiding member accepted that there are indeed people in India who bear the applicant ill will. However, the presiding member did not find any Convention nexus with the harm suffered by the applicant. In particular, the presiding member did not accept that the applicant had a political profile.
When this matter first came before me on 23 June 2006 it was not apparent to me whether the application disclosed an arguable case. I directed a hearing today pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). I also made orders for the filing of additional material for the purposes of today’s hearing. The applicant filed an amended application on 7 August 2006. The applicant presented a further amended application in court today. I gave leave for that to be filed in court. That is the application upon which the applicant now relies.
I note in passing, however, that there is little difference between the amended application and the further amended application. There is confusion in both documents between grounds and particulars. However, three grounds can be identified.
The first is an asserted breach of s.424A of the Migration Act 1958 (Cth) (“the Migration Act”). The application does not disclose and the applicant was unable to elaborate on what information was not disclosed that should have been. On my reading of the RRT decision the outcome turned upon the oral hearing conducted. The information contained in the applicant’s protection visa application simply formed the starting point from which the applicant was questioned at that oral hearing. In my view there is no arguable case of a breach of s.424A in this instance.
The further amended application also asserts that the RRT failed to take into consideration relevant material. However, it appears to me from my reading of the RRT decision that the applicant’s claims were considered. The RRT also appears to have considered all of the applicant’s evidence presented in support of his claims. I see no arguable jurisdictional error upon that ground.
The further amended application also asserts a failure to apply the relevant law to the facts in the case. The application refers to ss.36(2) and 65(1) of the Migration Act. However, the applicant’s dispute with the RRT decision does not rise above a simple dispute over the outcome. He disputes the merits of the Tribunal’s decision but that is beyond the scope of this proceeding.
I see in this case no arguable claim of jurisdictional error. Accordingly, 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 Minister seeks scale costs. The applicant sought the opportunity to pay by instalments. That is a matter that he can discuss with the Minister’s solicitors.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and paragraph 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.
For the avoidance of doubt, I will also direct that the Refugee Review Tribunal, which was the second respondent to the show cause application, also be the second respondent to the further amended application.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 31 August 2006
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