SZOBM v Minister for Immigration

[2010] FMCA 134

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOBM v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 134

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Federal Magistrates Court Rules 2001 (Cth)

Applicant: SZOBM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3072 of 2009

Judgment of: Driver FM

Hearing date: 1 March 2010

Delivered at: Sydney

Delivered on: 1 March 2010

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms L Weston
DLA Phillips Fox

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 in the sum, fixed in the sum of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3072 of 2009

SZOBM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was made on 16 November 2009.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. 

2. The applicant is from Nepal and had claimed religious persecution.  He arrived in Australia most recently on 11 February 1996 and applied to the Minister’s Department for a protection visa on 2 June 2009.  The delegate refused that application on 25 August 2009 and notified the applicant of that decision on the same day.  The applicant applied to the Tribunal for review of the delegate’s decision on 9 September 2009.  The Tribunal was unable to make a favourable decision on the papers and invited the applicant to a hearing, which he attended on 11 November 2009.  The applicant attended to give evidence and present arguments.  He speaks English and has attended both the Tribunal and this Court without an interpreter.

3. The applicant, in his protection visa application, stated that he was born in Nepal in 1972 and that he belongs to the Gurung ethnic group and was a Christian.  He was educated in Singapore and in Australia.  His parents lived in Nepal and he had siblings in Hong Kong and Singapore.  The applicant told the Tribunal that he had lived 31 years outside Nepal; he had lived in Singapore for 18 years, and for 13 years in Australia.  He had been in Australia unlawfully for 10 years before the Tribunal decision.  After having left Nepal in 1997 at the age of five, the applicant returned to Nepal only once in 1995 for one year.  He said that he found it difficult to obtain employment in Nepal because he was not fluent in the Nepalese language.  He felt discriminated against.  The applicant expressed some past fear of harm because of the Maoist insurgency in Nepal but based his claim essentially on the threat he saw from Hindu extremists who were targeting Christians.  He also referred to practical difficulties in settling in Nepal because of his lack of any real connection to the country and his lack of fluency in the Nepalese language.

4. The Tribunal questioned the applicant about these claims at the Tribunal hearing.  The Tribunal accepted that the applicant is a Christian and that he considered it his duty to proselytise.  The Tribunal considered the applicant’s claim of a well-founded fear of harm from Hindu extremists should he proselytise.  The Tribunal accepted that he has proselytised in Australia.  Having regard to country information, the Tribunal found that the applicant’s fear of harm in Nepal, should he proselytise there, was not well-founded.  The Tribunal also considered the applicant’s concerns of ostracism by his extended family because of his religious beliefs and activities.  The Tribunal found that the applicant was not at risk of harm from his family, at least not any risk which amounted to persecution under the Refugees Convention.

5. The Tribunal also considered the applicant’s claim that he would be discriminated against by employers because he was not fluent in the Nepalese language.  The Tribunal accepted that the applicant may face employment difficulties in Nepal because of his lack of fluency in that language.  The Tribunal found, however, that that discrimination did not constitute serious harm amounting to persecution for Convention purposes.  The Tribunal was aware of the applicant’s concerns about his practical difficulties in resettling in Nepal.  The Tribunal accepted the applicant’s claim that Nepal is essentially a foreign country to him.  However, the Tribunal found that these practical considerations did not establish harm of such a nature as to constitute Convention related persecution.

6. These proceedings began with a show cause application filed on 17 December 2009.  The applicant continues to rely on that application.  In it the applicant asserts that the Tribunal failed to understand his claim and misapplied the law. 

7. I have before me as evidence the court book filed on 27 January 2010 and a purported transcript of the Tribunal hearing on 11 November 2009, apparently prepared by Mr Toufic Laba Sarkis, who has been assisting the applicant with this application.  The applicant stressed that he is not represented by a legal practitioner because of the expense of that representation, although he has participated in the panel legal advice scheme applying to these applications to the extent of attending an interview with the barrister appointed under the scheme.

8. The applicant made oral submissions in support of his application.  He referred to the matters that he has raised before the Tribunal and asserted that the Tribunal erred by misunderstanding his claims.  He referred in particular to a fear of harm from members of the Gurung tribe to which he belongs and also referred to information he has heard or received that the criminal law of Nepal proscribes proselytisation by Christians.

9. The applicant conceded, however, that the latter was not information he had put before the Tribunal.  It was not referred to in his written claims and neither is there any reference to it in the purported transcript of the Tribunal hearing.  It appears to be information which has come to the applicant’s attention since the Tribunal decision.  That is information which the applicant could raise with the Minister’s Department should he wish to.

10. The applicant conceded in argument that he saw no legal mistake made by the Tribunal and has no complaint about the conduct of the hearing by the Tribunal.  He is understandably concerned at the prospect of having to return to a country about which he knows little and to which he has no real connection.  That, however, while giving rise to sympathy for his plight, does not support an argument that the Tribunal made a jurisdictional error in dealing with his case. 

11. The applicant has not raised any arguable case of jurisdictional error by the Tribunal. Neither is any arguable case of such error apparent to me from my examination of the material. 

12. I will therefore order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

13. The application having been dismissed, costs should follow the event.  The Minister seeks costs which, on a party/party basis, the solicitor for the Minister estimated in the sum of $2,500.  That is somewhat less than scale costs to this point.  I am satisfied that costs of that order have been reasonably and properly incurred on behalf of the Minister on a party and party basis.  The applicant referred to his impecuniosity but, as has been repeatedly stated, that is 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 in the sum, fixed in the sum of $2,500.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  3 March 2010