SZJIX v Minister for Immigration - [2007] FMCA 1981

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJIX v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1981

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958 (Cth)

A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 56
Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487
Applicant A v Minister for Immigration & Ethnic Affairs (1996) 190 CLR 225

Applicant:

SZJIX

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 2596 of 2006

Judgment of:

Barnes FM

Hearing date:

15 November 2007

Delivered at:

Sydney

Delivered on:

15 November 2007

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Mr Cleary

Solicitors for the Respondent:

Clayton Utz

ORDERS

That the name of the first respondent be amended to read “Minister for Immigration & Citizenship”.
That the application be dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2596 of 2006

SZJIX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal handed down on 17 August 2006 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of India, arrived in Australia in December 2005 and applied for a protection visa. The application was refused and the applicant sought review by the Tribunal. The applicant's claims were set out in a statement accompanying his protection visa application and are summarised by the Tribunal in its reasons for decision.
In essence, the applicant claimed to fear that his in-laws would kill him if he returned to India. He claimed that he had fallen in love with another woman before his marriage, although he had been “warned off” by her relatives and her brother had broken his leg. Subsequently he married his wife in an arranged marriage. Six years later he became reacquainted with his first love and started to see her. His wife's family found out and threatened him and created problems for him. He also claimed that he had difficulties with his father who had announced that he was not responsible for him and had severed relationships with him.
In his review application the applicant made no further claims. He attended a Tribunal hearing. In its reasons for decision the Tribunal set out the claims made by the applicant in connection with his protection visa application and the evidence given by him at the Tribunal hearing. The Tribunal reasons for decision are the only account before the Court of what occurred in the Tribunal hearing. According to the Tribunal the applicant acknowledged that he knew he did not fit the definition of a refugee in the Refugees Convention and when the Tribunal indicated to him that from his account the Tribunal member was unable to identify any of the Convention reasons as a contributing factor to the harm he feared, that the applicant had agreed there was no Convention reason.
In its finding and reasons the Tribunal found that the applicant had given his oral evidence in a very frank and open manner. It found that he was a credible witness and accepted his account of his reasons for leaving India. However, having previously summarised the law in relation to the definition of a refugee, the Tribunal noted that the persecution which an applicant fears must be for one or more of the reasons enumerated in the Convention definition and that the phrase "for the reason of" served to identify the motivation for the infliction of the persecution.
It found in the present case that the applicant's evidence clearly indicated that the reasons for his fear of harm from his wife's family and the family of his first love related solely to personal matters. The Tribunal continued that the applicant was unable to point to and that the Tribunal was unable to identify a Convention reason for the harm he feared. It found that as it was not satisfied there was a Convention reason for the harm the applicant feared, it followed that he did not meet the definition of a refugee in the Refugees Convention.
The applicant sought review by application filed in this Court on

14 September 2006
. In that application he relied on three grounds. However, the first ground that he came to Australia for the safety of his life and the hope of a good life and that he had lived a peaceful life here and that he had put his case to the Tribunal for a protection visa does not of itself establish a ground for review.
Ground 2 is that he received a decision from the Tribunal that he was not entitled to a protection visa and that he had 28 days to seek judicial review. Again, that background statement does not establish or raise any claim of jurisdictional error.
Nor does the final ground which explains that he seeks to appeal that his story is true and that he came here for the safety of his life. He offers to give further proof of that and seeks that the Court save his life and points out that he has no money to appoint a lawyer.
Insofar as the applicant seeks a rehearing or merits review of the Tribunal decision, merits review is not available in this Court, as I pointed out to the applicant. He tendered in evidence, (and the tender was not objected to by counsel for the first respondent), a newspaper which included a newspaper announcement which he said was the announcement from his father. However, again, he appeared to seek merits review. The material in the newspaper does not raise any claim or demonstrate that the Tribunal fell into jurisdictional error in its decision or procedures.
It is well established that findings of fact are the primary function of the Tribunal. It is not within the jurisdiction of this Court to reconsider the merits of the applicant's claims. See A v Minister for Immigration Multicultural Affairs [2002] FCAFC 56.
As submitted by counsel for the first respondent, the harm complained of by the applicant was not harm that he claimed was directed at him by the authorities of the country. This is not a case in which there is anything on the material before the Court to suggest that the persecution complained of, or that the applicant claims to fear, has an official quality in the sense that it is officially tolerated or uncontrollable by the authorities of India. (See Applicant A v Minister for Immigration & Ethnic Affairs (1996) 190 CLR 225 at 233 per Brennan CJ and Minister for Immigration & Multicultural Affairsv Respondents S152/2003 (2004) 205 ALR 487). Nor was any claim made that the government had failed or was unable to protect the applicant from persecution. There is nothing to establish that the Tribunal erred in any manner in considering issues such as the official nature of persecution insofar as private persecution may have the requisite official quality if a government is said to have failed or to be unable to provide effective state protection. The applicant failed because the Tribunal was not satisfied that there was any Convention nexus in relation to the harm he feared.
The applicant has openly and frankly set out his circumstances and his claim to fear for his life in these proceedings as in the proceedings before the Tribunal. He indicated that he understands that his fears are not presented on the basis of being for any of the reasons set out in the Refugees Convention. He has not pointed to, nor is it apparent that there is, any jurisdictional error in the manner in which the Tribunal determined his claim or in its reasons for decision. The applicant has not demonstrated any error that would lead to a conclusion that the Tribunal failed to exercise or exceeded its jurisdiction.
For the sake of the applicant I mention also that, insofar as he seeks to rely on humanitarian grounds, this Court does not have any discretion on humanitarian grounds to grant him the relief that he seeks. As jurisdictional error has not been established, the application must be dismissed. I will hear submissions in relation to costs.
As the applicant has been unsuccessful he should meet the costs of the first respondent. The amount of $4,000 which is sought is an appropriate amount in light of the nature of this and other similar matters.
After I made the order in relation to costs, the applicant sought that the amount be reduced. I have considered this. However, his impecuniosity is not a reason for reducing the amount of the costs. I note that the amount is less than the amount of $5,000 provided for in the Federal Magistrates Court Rules. I consider that $4,000 is appropriate in light of the nature of this and other similar matters.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Barnes FM.

Associate:

Date: 30 November 2007