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MIGRATION - Visa - protection visa - Refugee Review Tribunal - application for review of a decision of the Refugee Review Tribunal affirming a decision of the delegate of the Minister not to grant a protection visa to the Applicant - Applicant a citizen of India - claim of a well-founded persecution by Muslims - review of the merits of an administrative decision not within the scope of a judicial review.

Zhang v Minister for Immigration [2003] FMCA 67 (24 February 2003)

SZDPK v Minister for Immigration [2004] FMCA 873 (16 November 2004)
Last Updated: 22 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDPK v MINISTER FOR IMMIGRATION
[2004] FMCA 873




MIGRATION - Visa - protection visa - Refugee Review Tribunal - application for review of a decision of the Refugee Review Tribunal affirming a decision of the delegate of the Minister not to grant a protection visa to the Applicant - Applicant a citizen of India - claim of a well-founded persecution by Muslims - review of the merits of an administrative decision not within the scope of a judicial review.




Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), s.475A

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 followed

Applicant:
SZDPK




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG 1500 of 2004




Delivered on:


16 November 2004




Delivered at:


Sydney




Hearing date:


16 November 2004




Judgment of:


Scarlett FM




REPRESENTATION

The Applicant:


Appeared in person




Counsel for the Respondent:


Mr Kennett




Solicitors for the Respondent:


Australian Government Solicitor



ORDERS

(1) The application is dismissed.

(2) The Applicant is to pay the Respondent's costs fixed in the amount of $3,500.00.

(3) The Application is removed from the list of cases awaiting finalisation.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG 1500 of 2004

SZDPK



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister for Immigration to refuse a protection visa to the applicant. The applicant now seeks that the Court should review this decision as he claims that the Tribunal was in error. The applicant seeks an order for a writ of certiorari to quash the decision of the Refugee Review Tribunal. He also seeks a writ of prohibition to prohibit the respondent from acting upon or giving effect to or proceeding further upon the decision of the Refugee Review Tribunal. Third he seeks a writ of mandamus directing the Tribunal to redetermine his application according to law, finally he seeks and order for costs.

Background

2. The applicant is a citizen of India. He arrived in Australia on

15 October 2003. On 14 November 2003 he applied for a protection visa. A delegate of the Minister refused this application on

28 November 2003. On 18 December in that year the applicant applied for a review of that decision by the Refugee Review Tribunal. The Refugee Review Tribunal heard the applicant's application for review and on 4 May 2004 handed down its decision affirming a decision of the delegate not to grant the applicant a protection visa.

3. On 20 May of this year the applicant filed his application for review under s.39B of the Judiciary Act. In his application he said that the Tribunal favoured the Department of Immigration and Multicultural and Indigenous Affairs. He said that the Tribunal did not listen to his problems. He said the Tribunal did not believe his story and he said that the Tribunal had not checked the Indian country profile.

4. On 6 October this year the applicant filed an application to amend and to add new grounds. He told the Court he did not have legal advice but prepared the document himself. It is very well typed and the applicant said that he ran a computer training institute in India. It is in that amended application that he seeks the orders for the prerogative writs. It is also in this document that the applicant sets out a further nine grounds for review of the decision of the Refugee Review Tribunal.

5. First he says that he complies with the four elements of the convention definition of refugee. He said he is outside his country, namely, India, he has a fear of persecution by Muslim students and the police are not safeguarding him. He said that his fear is for the reason of his religion, he is not a Muslim and that he has a well founded fear.

6. He goes on to say in paragraph 2 that the Tribunal committed an error in stating that he had embellished his account to enhance his claims for a protection visa. This is factually incorrect. He goes on to say:

As this is not accepted this goes to the root of the matter.

7. He says in paragraph 3 that the Tribunal committed a mistake in stating above and further mentioning that this goes to the credibility of the applicant. He says when the Tribunal doubts the credibility of the applicant the applicant will not get any justice therefore the Tribunal had approached the matter with one sided and already completed approach.

8. In paragraph 4 he says that the Tribunal failed to see that the applicant was abducted and cut with a sharp object and burnt with cigarette and fire. Paragraph 5 he says that in page 13 of the decision the Tribunal has not given the required weight to the applicant's case, the Tribunal should have noted that the applicant and his institute were attacked by the Muslims. In paragraph 6 he said that the Tribunal failed to note that the police did not protect the applicant from Muslim attackers and therefore the applicant has a strong case.

9. Paragraph 7 he said that the Tribunal committed a mistake in saying that the applicant should relocate to another part of the country. The Tribunal failed to see that the applicant will be killed anywhere in India because the Muslims have a big network all over the country. The applicant will not be safe anywhere he submitted.

10. In paragraph 8 the applicant says that the Tribunal, while hearing the sad story of the applicant, used that story to attack the applicant that his claim will not come within the definition of convention. Finally in paragraph 9 he said that the Tribunal failed to see that the fear of the applicant is a general one and not individual. The Tribunal having observed initially that it doubts the credibility of the applicant will not be satisfied if the applicant says anything true.

11. The case by the applicant can be summarised by reducing it to these propositions. First that the Tribunal did not accept his credibility and that it must follow that the Tribunal did not approach the situation with an open mind. If that proposition of actual bias were to be established then there would be a jurisdictional error. Second, the applicant says that the Tribunal gave little or no weight to various items of evidence. This appears to be purely an attack on the merits of the decision and an application for judicial review is not a rehearing of the application. Third, the applicant is criticising the Tribunal's finding about his ability to relocate to another part of India. In effect those are the three areas of subject matter.

12. Looking first of all at the scope of judicial review I quote from the decision of Beaumont J, in Randhawa v The Minister for Immigration (1994) 52 FCR 437. At page 448 Beaumont J said:

It is trite law that a review of the merits of an administrative decision is not within the scope of judicial review, that in essence an error of law must be shown to exist before the Court has the power or authority to intervene and that intervention, even if opened, is discretionary.

13. The Minister for Aboriginal Affairs v Peko Walsend Ltd (1986) 162 CLR 24, a frequently cited passage, Mason J said at paragraph 41:

In the absence of any statutory indication of the weight to be given to various considerations it is generally for the decision maker and not the Court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power.

14. In this case the applicant has sought to attack the fact that the Tribunal has not given weight to his argument that he feels is appropriate, that is purely a matter for the Tribunal and in my view grounds 1, 2, 4, 5, 6 and 9 are therefore matters that I cannot go into, they are purely matters for the Tribunal and the application in that respect must fail.

15. I further mention the applicant took issue with the Tribunal's finding of his credibility. Whilst in ground 9 the applicant said the Tribunal having observed initially that it doubts the credibility of the applicant will not be satisfied if the applicant says anything is true, in his submissions today the applicant said it was after the Tribunal had heard his story that the Tribunal indicated that it doubted the credibility of his account. Of course it must be the case that an applicant can hardly be heard to complain if after hearing the evidence a decision maker chooses not to accept it and decides his evidence is not credible. That may be a source of grievance to the applicant, but it is the decision maker who must weight the credibility or not of the applicant.

16. I am not satisfied that there is any finding which would indicate bias or prejudice on behalf of the Tribunal, it appears that the Tribunal considered the applicant's evidence but decided that relevant parts of it were not credible. Accordingly grounds 2, 3, 8 and 9 must also fail.

17. The final item of subject matter relates to relocation. This was a matter referred to by the applicant in ground number 7 of his amended application. Again I look at the decision of the Full Court of the Federal Court in Randhawa v The Minister for Immigration. It is of course trite law, and as is set out in Randhawa that a Tribunal must look at the question of relocation within the applicant's home country. The applicant has said that he would be safe nowhere in India because Muslims have a network. The Tribunal just did not accept that and in my view the question of relocation was something that was again for the Tribunal to consider, as the Tribunal has considered it in my view that ground must fail.

18. The basic thrust of the applicant's case is that the Tribunal did not accept his evidence. The Tribunal gave evidence of having been the subject of attacks and victimisation by a few Muslim people. The Tribunal did not dispute that it occurred, what did happen however is that the applicant's claim that Muslims generally were against him was one that could not be substantiated. The applicant was not able to convince the Tribunal that the violence, threats and unpleasantness that he had suffered was persecution for a convention reason. It appeared to the Tribunal on the face of his evidence that the actions were the actions of criminals and whilst the applicant complained that the police had not protected him, nevertheless it is not a ground for a protection visa if one seeks to avoid criminal activity in ones own country. There is no reviewable error and the application must fail. The application is dismissed.

19. This is a matter where costs follow the event. The applicant has been wholly unsuccessful in his application. In my view it is appropriate to make an order for costs, the amount sought by the respondent is to my mind well within the range considered appropriate, taking into account schedule 1 of the Federal Magistrates Court Rules.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:

Date:
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