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MIGRATION - Visa - protection visa - Refugee Review Tribunal - application for review of decision of Refugee Review Tribunal affirming a decision of the delegate of the Minister to refuse a protection visa to the applicant - Applicant a citizen of India - failure to comply with directions - no reviewable error.

SZBXE v Minister for Immigration [2004] FMCA 904 (29 November 2004)

SZBXE v Minister for Immigration [2004] FMCA 904 (29 November 2004)
Last Updated: 6 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBXE v MINISTER FOR IMMIGRATION
[2004] FMCA 904




MIGRATION - Visa - protection visa - Refugee Review Tribunal - application for review of decision of Refugee Review Tribunal affirming a decision of the delegate of the Minister to refuse a protection visa to the applicant - Applicant a citizen of India - failure to comply with directions - no reviewable error.




Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), s.474

Applicant:
SZBXE




Respondent:


MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS

AFFAIRS




File No:


SZ 2464 of 2003




Delivered on:


29 November 2004




Delivered at:


Sydney




Hearing date:


29 November 2004




Judgment of:


Scarlett FM




REPRESENTATION

Applicant:


In person




Solicitors for the Applicant:


Ms Bautista, Sparke Helmore




ORDERS

(1) The application is dismissed.

(2) The Applicant is to pay the Respondent's costs in the sum of $4,750.00.

(3) Transcript of reasons required.

(4) The application is removed from the List of Cases Awaiting Finalisation.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG 2464 of 2003

SZBXE



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
Introduction

1. The application before the court is an application for a review of a decision of the Refugee Review Tribunal made on 21 October 2003. The Refugee Review Tribunal affirmed a decision of a delegate of the Minister not to grant a protection visa to the Applicant. The decision, I note, was handed down on 3 November 2003. On 14 November 2003, the Applicant filed his application under the Judiciary Act 1903 and the Migration Act 1958. In that application he sought a writ of prohibition, a writ of mandamus, a writ of certiorari and an order that the Respondent should pay his costs.

Background

2. The matter was listed for hearing and the Respondent prepared the appropriate appeal book. The matter was later placed in a non-compliance list as the Applicant had not filed any further material. On 6 September 2004, Federal Magistrate Driver granted leave to the Respondent to apply within 28 days for summary dismissal of the amended application. The application was listed before me on

14 October. The Applicant had obtained some legal advice under the pilot scheme that operates in this court. The Applicant obtained advice from a barrister, Mr V Hooton.

3. On 25 August, the Applicant had filed his amended application but he did not file an affidavit in support until 6 September. On 14 October, I directed the Applicant to file and serve a further amended application and an affidavit in support by 4pm on 22 November. I also made an order that the Applicant pay the Respondent's costs. The Applicant has not filed a further amended application or any further affidavit in support.

Application for Adjournment

4. He sought a further adjournment today. I refused that adjournment, which was an adjournment for the purpose of him obtaining legal representation, on the basis that he had had over a year to obtain legal representation. The Applicant had said that legal representation cost money and that he was still saving funds to brief a barrister from Queensland named Stephen to appear for him. In light of that information I was not prepared to grant a further adjournment.

The Hearing

5. In his application, the Applicant says that the Tribunal, in breach of procedural fairness, took into account material directly relevant and adverse to his claim for refugee status without giving him any notice of that material or any opportunity to address it.

6. He also said the Tribunal, during the hearing of the review of the decision of the delegate, breached procedural fairness by failing to put to him such country information as the Tribunal had to rely on in coming to a decision adverse to his case. He further said that the Tribunal and its decision, in breach of the rules of procedural fairness, relied in an impermissible way upon certain submissions of the Secretary of the Department relevant to the review by the Tribunal of the decision. Finally, the Applicant said that the Secretary of the Department failed to provide the Tribunal documents in the Secretary's control which were relevant to the hearing.

7. I asked the Applicant about the failure to provide documents and he said that those documents would alter the outcome of the proceedings but was not able to specify what they were. There were some 10 specific documents that he referred to, namely documents in Part B of the delegate's decision although, as Ms Bautista has pointed out, in this particular case there were only three of these documents. The Applicant, as I have said, was not able to identify the others.

8. The Applicant says that the Department breached section 418(3) of the Migration Act by not providing copies of the documents but again no evidence of those documents has been given. Further, the Applicant says that there was a jurisdictional error, that the Tribunal did not read all of the Part B materials, it says here, which might help him to make a positive decision, but I note that the Tribunal member was a woman. This was said to be a failure to comply with requirements of section 418(3) of the Act.

9. There was no evidence to show how it is that the Tribunal did not read all the materials which were in Part B. There is an allegation of a breach of the rules of natural justice by failing to follow proper procedure. There is no evidence as to what that procedure is. There are allegations of a failure to warn of adverse information, about document fraud or the use to which it was put. The Applicant says the Tribunal did not make any reference to any specific report during the hearing. There is also a Muin and Lie v Refugee Review Tribunal argument which again seems to be a reference to these allegedly missing documents. As I said, particulars of those documents have not been supplied.

10. There is further allegation of lack of procedural fairness, jurisdictional error and error of law which again appears to be a reiteration of the earlier claims as it claimed the Tribunal ignored relevant evidence and there was a finding in the face of contradictory independent evidence. This may well constitute jurisdictional error except the applicant could not say what that evidence was. Finally, the Applicant opposes the imposition of any order for costs if the application is dismissed.

11. I have heard the Applicant today, having refused to grant him an adjournment. I was not satisfied he was able to add anything further to his case. I have read the decision of the Refugee Review Tribunal.

I am not satisfied that it has been shown that the Tribunal should have received and did not receive some ten documents from the Secretary of the Department. I am not satisfied that if those documents, whatever they are, had been received that they would have had any bearing on the case. I note that the basic reason, the prime reason, for the Tribunal's rejection of the Applicant's case, appears on page 68 of the court book. The fact is that the Tribunal did not accept the Applicant's evidence. The Tribunal said at about point 4 on the page, in the second paragraph:

I do not accept the applicant as a witness of truth. He was an unconvincing witness.

12. The Tribunal goes on to give examples of being an unconvincing witness. The Tribunal did however consider the "what if I am wrong" situation and looked at the substance of the Applicant's case. It was in his job as a printer at a newspaper, the Applicant had seen damaging information relating to a corrupt politician and that the corrupt politician had proceeded to threaten the Applicant. Of course, threats by corrupt politicians are matters of where a citizen of India can expect protection of the police and which was a finding that the Tribunal made, that the police and the courts in India were in a position to protect citizens from what was, in effect, criminal behaviour.

13. The Tribunal also found that the Applicant was able to relocate within India if he so wished. The Tribunal said on page 74 of the court book that it was not satisfied that he was a high profile person. Independent information indicates there is free movement within India and a person from his home State can move and live in any other State in India. The Tribunal was therefore satisfied that the Applicant could relocate within India.

14. The fact is that no breach of procedural fairness has been shown nor has there been shown any jurisdictional error or error law. The Applicant has not been able to provide particulars to show why it was that he was treated unfairly by the Tribunal and the matter has been before the court for over a year and the Applicant has still not obtained legal advice other than the legal advice that was available to him through the pilot scheme.

15. No reviewable error has been found and I dismiss the application.

16. The respondent's solicitor seeks, perhaps optimistically, the sum of $5500. This is a matter that I am satisfied should be the subject of an order for costs. The Applicant has been wholly unsuccessful in his application. I take into account the fact that earlier orders for costs have been made and I note these proceedings today. The Applicant is to pay the Respondent's costs in the sum of $4750. I will require a transcript of my reasons for this decision. The application is removed from the list of cases awaiting finalisation.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: V Lee

Date: 30 November 2004
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