SZRVO v Minister for Immigration
[2013] FMCA 49
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRVO v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 49 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Nepal – applicant’s fears found not to be well-founded – no arguable case of jurisdictional error. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.424A, 425 |
| Applicant: | SZRVO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2136 of 2012 |
| Judgment of: | Driver FM |
| Hearing date: | 29 January 2013 |
| Delivered at: | Sydney |
| Delivered on: | 29 January 2013 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr C Barlow 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 $3,239 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 2136 of 2012
| SZRVO |
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 is dated on its face 28 August 2012. It was certified on behalf of the Tribunal’s District Registrar the following day. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant is from Nepal and had made claims of political persecution. He referred in particular to extortion demands made of him by the Maoist Young Communist League (YCL). The Tribunal was unable to make a favourable decision on the papers and by letter dated 26 March 2012[1], invited the applicant to a hearing on 29 May 2012. The applicant accepted that invitation and attended the hearing. He answered questions and provided information to the Tribunal.
[1] Court Book (CB) 68
In its decision, the Tribunal referred to the applicant’s claims and at some length to country information. The Tribunal accepted that the applicant was a member of the Nepalese Congress Party (NCP). It further accepted that he was the victim of extortion at the hands of Maoist groups. It also accepted that he was questioned by the Nepalese police concerning Maoists taking goods and services from his shop. The Tribunal reasoned, however, that the applicant’s fear of persecution was not well-founded. This was on the basis that the harm the applicant had suffered previously in Nepal was minor and not serious.
Further, the country information stated that extortion activities and other criminal activities by the YCL had in recent years declined. Thirdly, although a member of the NCP, the applicant lacked a political profile. Fourthly, in the event that the applicant did face harm in Nepal from the Communists, or anyone else, effective state protection would be available.
This present proceedings began with a show cause application filed on 28 September 2012. The applicant continues to rely upon that application. It contains three grounds of review:
1. I am a victim of the Tribunal Member’s decision not to grant me a protection because the Tribunal Member ignored my safety despite the fact that I face persecution upon my return to Nepal.
2. I argue that I have been denied procedural fairness based on the Tribunal’s findings that there is no real risk I would suffer to my life if I returned to Nepal.
3. I believe the Tribunal Member made an error of law and I need justice from the court.
The application is supported by a short affidavit filed the same day, which I received as evidence. I also received as evidence the court book filed on 9 November 2012.
The applicant asserts that he is a refugee and that the Tribunal made the wrong decision. He is entitled to that view, but the merits of the Tribunal’s decision are beyond the scope of this proceeding. Ground 1 of the application simply cavils with those merits.
There is no substance to the second ground, which asserts procedural unfairness. In his oral submissions, the applicant dwelt on the outcome before the Tribunal rather than its process. The applicant was properly invited to a hearing, pursuant to s.425 of the Migration Act 1958 (Cth) (Migration Act). At that hearing, the Tribunal explained the essential and significant issues upon which the review would turn. The applicant was given the opportunity to comment upon country information adverse to his claims, although there was no statutory obligation of disclosure, pursuant to s.424A of the Migration Act. I am satisfied that the process followed by the Tribunal was fair.
As to the third ground, the asserted error of law is not particularised. The applicant was unable to point to any issue of law casting doubt on the validity of the Tribunal decision. On my own reading of the court book, there is no arguable case of legal error by the Tribunal.
I conclude that the applicant has been unable to demonstrate an arguable case of jurisdictional error by the Tribunal.
I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (Federal Magistrates Court Rules).
In consequence of the dismissal of the application, the Minister seeks an order for costs. The Minister seeks costs in accordance with the Court’s scale, in the sum of $3,239. The applicant did not wish to be heard on costs.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,239 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 thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 6 February 2013
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