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MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - applicant claiming caste persecution in India - no error of any kind asserted - applicant declining opportunity to make submissions - no jurisdictional error apparent - application dismissed.

PRACTICE AND PROCEDURE - Comments on the desirability of applications which fail to assert any legal error being dealt with promptly.

SZAXV v Minister for Immigration [2004] FMCA 757 (3 November 2004)

SZAXV v Minister for Immigration [2004] FMCA 757 (3 November 2004)
Last Updated: 19 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAXV v MINISTER FOR IMMIGRATION
[2004] FMCA 757




MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - applicant claiming caste persecution in India - no error of any kind asserted - applicant declining opportunity to make submissions - no jurisdictional error apparent - application dismissed.

PRACTICE AND PROCEDURE - Comments on the desirability of applications which fail to assert any legal error being dealt with promptly.




Applicant:
SZAXV




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG1308 of 2003




Delivered on:


3 November 2004




Delivered at:


Sydney




Hearing date:


3 November 2004




Judgment of:


Driver FM




REPRESENTATION

The applicant appeared in person

Counsel for the Respondent:


Mr S Lloyd




Solicitors for the Respondent:


Clayton Utz




ORDERS

(1) The application for judicial review filed on 11 July 2003 is dismissed.

(2) The applicant is to pay the respondent's costs and disbursements of and incidental to the application, fixed in the sum of $3,000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG1308 of 2003

SZAXV



Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal ("the RRT") made on 30 May 2003 and handed down on 26 June 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from India and made claims based upon his caste and political activities. The relevant background facts are set out in paragraphs 2-4 of written submissions prepared by Mr Lloyd on behalf of the Minister. I adopt those paragraphs for the purposes of this judgment:

The applicant claimed to have suffered discrimination in education by reason of his caste. Given that he had completed his schooling and obtained a Diploma in Civil Engineering, RRT did not accept that any such discrimination constituted persecution (court book, page 96.7).

The applicant claimed to have been arrested and mistreated on a number of occasions for reasons of his political opinion. The RRT rejected these claims on the basis of adverse credibility findings made against the applicant. This finding was based upon inconsistencies in his claims such as his application saying that he had not been convicted but his testimony being that he had.

The RRT also made a finding that the applicant could safely re-locate within India if he had been telling the truth.

2. The application for judicial review fails to engage the jurisdiction of the Court. No jurisdictional error is alleged. Indeed, no error at all in the decision of the RRT is alleged. In the circumstances, it is surprising that the Minister has permitted the matter to go to a final hearing. The Court makes time available for applications that are, on their face, defective, to be dealt with on an interlocutory basis. In my view, this application ought to have been dealt with on an interlocutory basis. However, the Minister has elected to allow the matter to go to a final hearing.

3. The applicant did not wish to make any oral submissions. He did not take up the opportunity given to him by Registrar Hedge at a directions hearing on 3 September 2003 to file and serve an amended application and evidence. Mr Lloyd's written submissions, in the circumstances, are understandably brief.

4. Given that the applicant is self represented, I have myself reviewed the court book, which I receive as evidence in the proceedings. The decision of the presiding member, commencing on page 86 of the court book, demonstrates a thorough and proper consider of the applicant's claims by the presiding member. The applicant's claims were rejected on credibility grounds. The presiding member pointed out that the applicant's evidence was riddled with inconsistencies and contradictions (court book, page 96). The presiding member further observed that if, contrary to her findings, the applicant's claims were genuine, they would point to a well founded fear of prosecution not persecution (court book, page 99). The findings made by the presiding member were reasonably open to her on the material before her. There is no jurisdiction error apparent in the decision of the RRT.

5. In the circumstances, the decision is a privative clause decision. The application for judicial review must be dismissed. I will so order.

6. On the question of costs, Mr Lloyd seeks an order for costs. The applicant did not wish to make any submissions on costs. On a party/party basis, in my view, an order for costs fixed in the sum of $3,000 is called for, having regard to the amount of preparation required on behalf of the Minister. In addition, representation by counsel was reasonably required today notwithstanding that no jurisdictional error had been asserted by the applicant. Regrettably, claims of jurisdictional error sometimes emerge in migration proceedings at the last minute.

7. I will order that the application for judicial review filed on 11 July 2003 be dismissed and that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,000.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 10 November 2004
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