SZAIL v Minister for Immigration - [2003] FMCA 583

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAIL v MINISTER FOR IMMIGRATION

[2003] FMCA 583

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution by Hindus in India – unparticularised application – no jurisdictional error shown – application dismissed.

Migration Act 1958 (Cth), s.417

Applicant:

SZAIL

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ506 of 2003

Delivered on:

11 December 2003

Delivered at:

Sydney

Hearing date:

11 December 2003

Judgment of:

Driver FM

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent:

Ms B Rayment
Sparke Helmore

ORDERS

The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ506 of 2003

SZAIL

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 18 February 2003 and handed down on 11 March 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant is from Tamil Naidu State in India. He made claims based upon several incidents which he said gave rise to a well founded fear of persecution. The applicant is a Muslim. He claimed that there were problems with Hindus in his village due to jealousy over the success of the family fish shop. He also claimed problems caused by relatives of a person who was injured in a traffic accident in Dubai when the applicant was working there. He also claimed to have been falsely implicated in a murder committed in 1992.
The RRT did not accept the applicant's claims. The decision made by the RRT is accurately summarised in paragraphs 2 through to 8 of written submissions prepared by Mr Lloyd. I adopt those paragraphs for the purposes of this judgment:
The RRT accepted that the applicant is a citizen of India.
It did not accept the applicant’s claim that, while working in Dubai, he had a motor vehicle accident with a person who lived 17km from his own village in India and that he faced harm, in India, from this boy’s family. While accepting that the accident occurred, the RRT did not believe the claim that the applicant lived so close to the boy, which was made only very late in the piece (court book, page 67 [54]).
The RRT did not accept that the fact that the applicant was wanted by the Dubai police in relation to the accident revealed any Convention-related persecution (court book, page 67 [56]).
The RRT did not accept that the applicant was still being pursued for some role in a murder from 1992 (court book, page 67 [55]).
The RRT considered that any conflict which the applicant had with his Hindu competitors in the fish mongering business in India was not for a Convention reason (court book, page 68 [57]).
The RRT did not accept the applicant’s claim about conflict sourced to his support for a new mosque in his home town (court book, page 68 [59]) and considered that, in any event, six years later the matter would not be an issue any more (court book, page 68 [61]).
The RRT also found that state protection was available to the Applicant in India (court book, page 68 [60]).
The present application was filed on 3 April 2003. The application contains three grounds of review. Mr Lloyd deals with those grounds in paragraphs 9 through to 12 of his written submissions. Ms Rayment appeared on behalf of the Minister this afternoon. She made oral submissions along the lines of the written submissions. I agree with and adopt paragraphs 9 through to 12 of Mr Lloyd's submissions for the purposes of this judgment:
The applicant first claims that the RRT did not exercise its powers in the prescribed manner. No particulars are provided. There is no substance to this complaint.
The applicant then complains that the RRT was biased. There are no particulars given. There is nothing in the evidence before the Court which would allow a serious inference of this kind to be drawn. This ground should be rejected.
Finally, the applicant contends that the RRT erred by failing to have regard to the relevant material submitted before the interview. The RRT made express reference to the applicant’s written claims and to the translation of the newspaper article provided. There was also a letter provided concerning the end of his employment in Dubai. The RRT accepted the applicant’s claims about what happened in Dubai but did not consider them to be Convention related.
The RRT made findings in relation to all of the applicant’s claims.
The applicant was not able to expand upon the grounds in his application when he appeared this afternoon. Instead he asked me to look at a number of documents that he told me he had been able to obtain recently in order to substantiate his claims. One of those documents is an original newspaper article concerning the 1992 murder. A translation of that article apparently was before the RRT when it made its decision. The RRT dealt with that issue in paragraph 55 of its reasons. The presiding member said:
With respect to his claims that there is renewed interest in him as a suspect in connection with a 1992 murder in his village, I also reject these claims as a fabrication. Even accepting that the newspaper article which has been produced and translated is a genuine one, I am not satisfied that the mere reference to a person named [the same name as the applicant] in the article is a reference to the Applicant. While the Applicant was in custody in 1992 a man was arrested for the murder and the Applicant was released. He heard nothing further [about] the matter for about 10 years when he read the article in question in a newspaper. Because of my general concerns about his reliability as a witness, I do not accept as truthful claims by the Applicant that there have been recent visits by police to the family home of the Applicant.
The statement by the presiding member of general concerns about the applicant's reliability as a witness is not further explained but I take this to be a reference to adverse credibility findings made in relation to most of the applicant's claims.
The applicant told me that he has recently been able to obtain court documents from Tamil Naidu State which he says prove that he is of renewed interest in relation to the 1992 murder. He showed me a bundle of documents which are photocopies of documents in the Tamil language.
The documents appear to bear a court stamp in English and appear to bear adhesive stamps identifying payment of court fees. The applicant told me that someone in Tamil Naidu on his behalf bribed a court clerk in order to obtain copies of the documents. Assuming all of that to be true I nevertheless do not consider that the documents assist him in these proceedings.
The documents appear to date from 1994 and 1995 and may well relate to the murder case. However, they were not put before the RRT and therefore could not have an impact on its decision. If the RRT had been made aware of the documents it is possible that the documents may have had some impact on the RRT decision. Whatever the documents may say they do not and could not establish jurisdictional error in the decision of the RRT. The rejection of this applicant's claims was reasonably open to the RRT on the basis of the material before it at the time.
Likewise, a letter in the Tamil language which the applicant showed me from someone in his home village which he said supported his claim is a new document and does not assist him in these proceedings. The documents may assist him should he choose to make an application to the Minister under s.417 of the Migration Act 1958 (Cth). That is a matter beyond the scope of these proceedings.
No jurisdictional error is established on the basis of the application made to the Court. Neither is any jurisdictional error apparent to me on the basis of the material before the Court. It follows that the decision of the RRT is a privative clause decision. I must dismiss the application.
On the question of costs, Ms Rayment has applied for an order for costs fixed in the sum of $3,200 on a party party basis. The proceedings were relatively straightforward. The amount of documentary preparation required of the Minister was relatively small. The application for review, on its face, raised little of substance. Although written submissions were prepared by Mr Lloyd, the Minister was effectively represented this afternoon by Ms Rayment. In the circumstances, only a modest costs award in this matter is in my view called for.
I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $2,500.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 18 December 2003