SZLQZ v Minister for Immigration

[2008] FMCA 194

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLQZ v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 194

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa decision – applicant claiming religious persecution in India – interlocutory dismissal of show cause application – no arguable case.

Migration Act 1958 (Cth), ss.91R, 424A

Applicant: SZLQZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3594 of 2007

Judgment of: Driver FM

Hearing date: 20 February 2008

Delivered at: Sydney

Delivered on: 20 February 2008

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms A Crittenden
Clayton Utz

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 $2,300.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3594 of 2007

SZLQZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was handed down on 25 October 2007.  The 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 11 May 2007.  He applied to the Minister's Department for a protection visa on 14 May 2007.  That application was refused by a delegate on 29 May 2007.  The applicant applied to the Tribunal for review of that decision on 25 June 2007. 

2. The applicant claimed to fear harm from Muslims as a result of experiences in his home State of Kerala.  The applicant was invited to attend a hearing before the Tribunal, and did so and gave evidence on 18 September 2007.  He was not believed.  The Tribunal found that the applicant had sought to embellish, if not entirely fabricate, material parts of his claims.  The Tribunal rejected all of the applicant's claims to invoke refugee protection in Australia on the basis that the claims were false.  Nevertheless, the Tribunal considered that the applicant could safely relocate within India if he had come to the adverse attention of someone in his home State of Kerala.  

3. The present proceeding began with a show cause application filed on 20 November 2007. The applicant now relies upon an amended application filed on 15 January 2008. That application asserts a breach of s.424A of the Migration Act 1958 (Cth) (“the Migration Act”); that the Tribunal overlooked certain integers of his claims; that the Tribunal failed to consider properly the test of serious harm pursuant to s.91R(2)(a) of the Migration Act; that the Tribunal applied the wrong test by requiring evidence of a fact before the Tribunal would accept a claim; that the Tribunal failed to inquire as to whether the standard of protection available in India met international standards; and that the Tribunal failed to apply the definition of a “refugee” in Article 1A(2) of the Refugees Convention. The grounds are expressed in template form of which the Court has seen several examples recently.

4. The applicant also relies upon an affidavit filed with his original application.  I accepted the first two paragraphs of that affidavit as evidence.  I accepted the remaining two paragraphs as a submission relating to an asserted constructive failure by the Tribunal to exercise its jurisdiction and a denial of procedural fairness.  I also have before me as evidence the court book filed on 4 January 2008. 

5. There is no substance to any of the grounds raised by the applicant. The Tribunal decision turns on its adverse findings based upon the applicant's own evidence. The Tribunal may also have had regard to some country information about Hindu religious festivals. Neither class of information required disclosure pursuant to s.424A. The applicant claims he should have been provided with independent information about adequate State protection, but that does not appear to have played a part in the Tribunal's reasoning, except possibly in relation to the secondary finding on relocation.

6. I reject the claim that the Tribunal failed to consider certain integers of the applicant's claims.  The Tribunal considered the applicant's claims and rejected them. 

7. Neither was there any failure to apply lawfully s.91R(2)(a) of the Migration Act, or the Refugee's Convention. The procedures followed by the Tribunal appear to have been fair. There was no constructive failure by the Tribunal to exercise its jurisdiction. The Tribunal was not bound to inquire as to whether the standard of protection available from the Indian authorities met international standards because the applicant was not accepted as a genuine refugee. In other respects, the applicant simply attacks the merits of the Tribunal decision.

8. In his oral submissions today the applicant sought more time to provide evidence to support his refugee claims, which he thinks is available in India.  I explained to the applicant that if he is able to secure such additional evidence he should submit it to the Minister's Department for consideration. 

9. The applicant also asserted confusion on the face of the Tribunal's reasons in relation to his relocation from Kerala to Delhi and to Bombay, as set out in his written claims.  On pages 110 and 111 of the court book the presiding member refers to the applicant claiming at the hearing that he moved from Delhi to Bangalow rather than Bombay.  The applicant asserts that this is a mistake and that he moved to Bombay. 

10. The only evidence I have before me of what occurred at the Tribunal hearing is the Tribunal decision.  I will not accept as evidence the applicant's assertion from the bar table that the presiding member was mistaken about where he moved to.  In any event, I do not think that a mistake of fact as to whether the applicant moved to Bangalow or Bombay would have any jurisdictional significance. The Tribunal accepted that the applicant relocated several times.  The Tribunal did not accept that the applicant's enemies were pursuing him around India.  The Tribunal did find that the applicant's relocation showed that he could safely relocate in India. 

11. No arguable case of jurisdictional error in relation to the Tribunal decision is apparent to me from the material before me. I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

12. The application having been dismissed, costs should follow the event.  The Minister seeks costs in the sum of $2,300.  Scale costs in this instance would be $2,500.  The applicant asserted a present inability to pay costs but speculated that he might be able to pay costs at some time in the future should he obtain employment in Perth.  That is a matter for him.  I am satisfied that costs of not less than $2,300 have been properly and reasonably incurred on behalf of the Minister when assessed on a party and party basis.  I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,300.

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

Associate: 

Date:  22 February 2008