SZMCJ v Minister for Immigration
[2008] FMCA 793
•16 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMCJ v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 793 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth) |
| Applicant: | SZMCJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 753 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 16 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 16 June 2008 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms T Quinn DLA Phillips Fox |
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 753 of 2008
| SZMCJ |
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”). The Tribunal decision was handed down on 6 March 2008. 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 had made claims of religious persecution. He arrived in Australia on 13 September 2007 and applied to the Minister's Department for a protection visa on 12 October 2007. A delegate of the Minister refused to grant that application on 31 October 2007. The applicant sought review by the Tribunal of that decision on 26 November 2007. The Tribunal advised the applicant that it was unable to make a favourable decision on the papers and invited him to a hearing. He attended the hearing on 16 January 2008. The Tribunal decision records that he was questioned in detail about his claims. The Tribunal considered those claims and took into account extensive country information about the situation of Christians in India.
The Tribunal accepted that there is, in some circumstances, violence and tension in India because of religious differences. The Tribunal also accepted that sometimes protection is not available for those harmed or fearing harm because of that violence. After considering the applicant's claims the Tribunal concluded that the applicant was not a witness of truth and decided that he had fabricated his claims.
Nevertheless, the Tribunal considered whether the applicant, as a Christian, faced a real risk of harm should he return to India. The Tribunal accepted that the applicant is a Christian and would be perceived to be one. On the basis of country information the Tribunal concluded that if he returns to India the applicant would not face a real risk of harm as a Christian because he is not a religious leader and does not intend to attempt to convert persons of other faiths to Christianity.
These proceedings began with a show cause application filed on 31 March 2008. The applicant continues to rely on that application. He was given the opportunity by orders made by me on 1 May 2008 to file and serve an amended application, but he has not taken up that opportunity. The application is supported by an affidavit attaching a copy of the Tribunal decision. I also have before me the court book filed on 1 May 1008.
The application asserts jurisdictional error in general terms. The application asserts that the Tribunal failed to consider relevant issues and asserts that country information from the Department of Foreign Affairs and Trade is contradictory in respect of the Indian Christian situation. Ground three asserts that the Tribunal made an error in saying that the applicant had suffered or will suffer harm from Hindus and that there is no basis in saying that. The applicant probably intended the reverse proposition. The Tribunal accepted that the applicant had suffered an injury at some stage, but did not accept that the injury was as a result of persecution.
In my view there is no substance to the asserted grounds of review. The Tribunal met its procedural obligations under the Migration Act 1958 (Cth) and was entitled to take into account the country information it had before it. The conclusions reached by the Tribunal, both as a result of considering the applicant’s claims and evidence and the country information, were available to it on the material before it.
The applicant in his oral submissions simply took issue with the merits of the Tribunal decision. As I explained to the applicant, that is beyond the scope of this proceeding.
In my view the applicant has failed to raise an arguable case of jurisdictional error in the Tribunal decision and no such arguable case of error is apparent to me from my own perusal of the available material.
I will therefore dismiss the application under 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 queried whether he would have time to pay. I will not require payment of the costs by any specific time. I see no reason to depart from the Court scale in this matter. I will order that 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.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 17 June 2008
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