SZNFA v Minister for Immigration
[2009] FMCA 410
•4 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNFA v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 410 |
| 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) |
| Applicant: | SZNFA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 216 of 2009 |
| Judgment of: | Driver FM |
| Hearing date: | 4 May 2009 |
| Delivered at: | Sydney |
| Delivered on: | 4 May 2009 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr R Baird 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, fixed in the sum of $2,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 216 of 2009
| SZNFA |
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 decision was made on 23 December 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 arrived in Australia on 29 May 2008. He applied for his protection visa on 15 July 2008. The Minister's delegate refused that application 12 September 2008. The applicant applied to the Tribunal to review that decision on 7 October 2008.
The Tribunal was unable to make a favourable decision on the papers alone and invited the applicant to attend a hearing. That hearing took place on 26 November 2008. The applicant attended with the assistance of Punjabi interpreter.
The applicant's claims centred upon his fear of harm at the hands of the extremist Khalistan Commando Force (“the KCF”). During the hearing the Tribunal noted inconsistencies between the applicant's written and oral claims. The applicant had claimed to have been kidnapped by the KCF but his oral and written claims were not consistent concerning when and for how long he was detained. There were other inconsistencies as well. The Tribunal put those inconsistencies to the applicant at the hearing and invited his comments[1]. The applicant declined to comment but indicated later that he was mentally upset.
[1] See the Tribunal reasons at [40] (court book, pages 112 to 113)
The Tribunal decision also records that the applicant asked for more time to submit additional documents[2]. That request was initially denied but the Tribunal relented. The applicant was invited to submit additional documents and was also invited to comment on what the Tribunal saw as adverse information arising out of his inconsistent claims. The Tribunal received no response to its letter sent on 22 December 2008. Having regard to the inconsistencies in the applicant's claims, the Tribunal was not satisfied that the applicant had provided a truthful account. The Tribunal found that the applicant had fabricated his claims to have been kidnapped by the KCF and to have been targeted by its leader. In view of the Tribunal's adverse credibility finding, the Tribunal affirmed the delegate's decision.
[2] court book, page 113, paragraph 42
These proceedings began with a show cause application filed on 29 January 2009. The applicant continues to rely on that application. The application does not, on its face, clearly point to any asserted jurisdictional error by the Tribunal. There is a general reference to what might be an assertion of procedural unfairness. The application also suggests some language difficulty. The applicant is also concerned about his inability to work.
I invited oral submissions from the applicant. He initially declined to say anything but during the course of oral submissions by counsel for the Minister, the applicant made some comments. He said that his initial written claims in support of his protection visa application were not properly prepared in the English language. He said that due to language difficulties he could not understand documents in the English language sent to him. He also said that he suffered from very poor memory. He also complained about his inability to work which would have enabled him to pay for professional assistance.
The only evidence I have before me is the court book filed 19 February 2009. I received the applicant's short affidavit filed on 29 January 2009 as a submission. There is no evidence of the applicant being under any medical disability affecting his memory. The Tribunal was certainly not on notice of the applicant being under such a disability.
The applicant no doubt has faced difficulties because of his unfamiliarity with the English language and his inability to earn an income. Unfortunately, many applicants confront similar difficulties. The Tribunal must do the best it can in the circumstances presented. The applicant was invited to a hearing before the Tribunal. That was an opportunity for him to fully explain his claims. He was assisted by a Punjabi interpreter. The Tribunal identified serious inconsistencies in the applicant's presentation of his claims. The Tribunal was dissatisfied with the applicant's explanation for those inconsistencies. The applicant was provided with a further opportunity to explain the inconsistencies in writing. He did not take advantage of that opportunity.
In my view, there is no arguable case of any procedural unfairness on the part of the Tribunal. If anything, the Tribunal exceeded its statutory obligations. The opportunity afforded the applicant was a fair one notwithstanding his lack of income and his language difficulties. The show cause application does not disclose any arguable case of jurisdictional error. Neither is an arguable case of such error apparent to me from my own examination of the material. I will therefore order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
Costs should follow the event in this case. The Minister seeks costs fixed in the amount of $2,000 which is less than the prescribed scale. The applicant claimed impecuniosity but that is a not a reason for the Court to refrain from making a costs order. 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 $2,000.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 6 May 2009
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