SZLRL v Minister for Immigration
[2008] FMCA 196
•20 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLRL v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 196 |
| MIGRATION – Review of Refugee Review Tribunal decision – applicant claiming religious persecution in India – interlocutory dismissal of show cause application – no arguable case. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.424A |
| Applicant: | SZLRL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3635 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
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 in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3635 of 2007
| SZLRL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). A decision was handed down on 30 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. He arrived in Australia on 11 May 2007 and applied to the Minister's Department for a protection visa on 14 May 2007. That application was refused by the delegate on 5 June 2007. The applicant sought review by the Tribunal on 26 June 2007.
The applicant claimed to fear harm as a Christian fisherman at the hands of Muslim fishermen. The Tribunal was prepared to accept that the applicant had experienced conflict with other fishermen. However, the Tribunal did not accept that there was any religious basis to that conflict. The Tribunal found no Convention nexus with the claimed harm feared by the applicant. The Tribunal went on to find that the applicant would be able to move elsewhere within India should he continue to fear harm from fishermen in his home village.
These proceedings began with a show cause application filed on 26 November 2007. The applicant now relies upon an amended application filed on 21 January 2008. That application raises three grounds for review. The first attacks the Tribunal's statement on relocation on the basis that the Tribunal failed to ask the applicant whether relocation was reasonable for him. The second ground asserts interpretation problems at the hearing conducted by the Tribunal. The third asserts a failure by the tribunal to comply with s.424A of the Migration Act 1958 (Cth) (“the Migration Act”). There is no substance to any of these grounds.
I have before me as evidence the applicant's affidavit filed on 26 November 2007 and the court book filed on 7 January 2008. It is clear from the Tribunal decision that the relocation statement made by the Tribunal was not material to the outcome. The Tribunal decision turned on its finding of no Convention nexus with the harm the applicant feared. The relocation statement only dealt with the non‑Convention related harm which the applicant feared.
Further, there is nothing before me to establish whether or not the applicant was asked questions about the reasonableness of relocation at the Tribunal hearing. I have no transcript of the
Tribunal hearing. The applicant was given the opportunity to file a transcript of the hearing up until 21 January 2008. He has not taken up that opportunity.
The asserted claim of interpretation problems at the hearing also fails for a lack of evidence. The applicant has had a fair opportunity to produce evidence to support that contention but he has not done so.
As to the alleged breach of s.424A of the Migration Act, the Tribunal wrote to the applicant on 29 August 2007 purportedly pursuant to that section. It appears to me that the Tribunal went further than was legally required by inviting comment on identified independent country information. Far from the Tribunal failing to meet its obligations, the Tribunal was careful to exceed them.
There is no substance to the grounds of review raised by the applicant. Neither is any arguable case of jurisdictional error apparent to me from my own reading of the material.
I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
The application having been dismissed, costs should follow the event. The Minister seeks scale costs of $2,500. The applicant claimed an inability to pay but had nothing else to say. Impecuniosity is not a reason for the Court to refrain from making a costs order. 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 item 1(b) of Part 2 of Schedule 1 to the Federal Magistrates Court Rules.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 22 February 2008
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