SZCAL v Minister for Immigration

[2005] FMCA 731

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCAL & ORS v MINISTER FOR IMMIGRATION [2005] FMCA 731

MIGRATION – Application for review of decision of RRT – whether application discloses no reasonable cause of action.

Federal Magistrates Court Rules 2001

B41 of 2003 (2004) FCA 30

Applicants: SZCAL, SZCAM, SZCAN

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 2594 of 2003

Judgment of: Raphael FM

Hearing date: 16 May 2005

Date of Last Submission: 16 May 2005

Delivered at: Sydney

Delivered on: 16 May 2005

REPRESENTATION

For the Applicant: In person

Counsel for the Respondent: Mr T Reilly

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent's costs assessed in the sum of $2,500 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrate's Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2594 of 2003

SZCAL, SZCAM, SZCAN

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. There comes before me today a Notice of Motion filed by the respondent seeking that these proceedings be dismissed pursuant to Rule 13.10 of the Federal Magistrate's Courts Rules.  In particular, the respondent seeks orders under Rule 13.10(a), that:

   The proceedings disclose no reasonable cause of action.

   Or pursuant to 13.10(b):

   The proceedings can be found to be frivolous or vexatious.

2. The applicant is an Indian citizen who lived his life in Mumbai where he claims to have been a supporter of the radical Hindu groups, BJP and RSS and Shiv Sena.  He ran a courier service.  He claims that he was targeted by the local Muslim population in 1992 and thereafter he claims that he was physically attacked and was the subject of extortion threats.  He claims that demands were made upon him to transport explosives.  On the other hand the applicant did not claim to have been a political activist in the causes which he supported.

3. The Tribunal came to the view that whilst it was possible that the applicant had been harmed in his business at the time of the Babri Mosque incident in 1992, it was far-fetched and difficult to believe that he had been targeted since then.  The Tribunal concluded that the independent evidence pointed to the fact that Mumbai was ruled by conservative Hindu forces and in those circumstances it would not accept that even if the applicant had been targeted as he claimed he could not access protection from the authorities.

4. The Tribunal also found the claim by the applicant that he was being targeted by Muslim elements behind an attempt to involve his courier business in the transport of explosives and weaponry was fanciful and far-fetched.  Finally, the Tribunal concluded that even if the applicant did have a subjective fear of harm were he to stay in Mumbai he could relocate to some other city in India such as Calcutta or New Delhi and that such relocation would be reasonable in all the circumstances.

5. The applicant filed an amended application on the 24 May 2004.  He claims in that document that a jurisdictional error was committed by the Tribunal in not accepting his claims that he had been the subject of persecution in India.  The grounds indicated that the Tribunal had erroneously rejected the claims and evidence that he was persecuted on religious grounds and argues that the evidence which the Tribunal accepted about events in India proved that the attacks by Muslims on him and his family were caused by the fact that he was a Hindu.  The application also takes issue with the findings of the Tribunal that the applicant was not a politically important figure in the RSS. 

6. The matters raised in the amended application do seem to me to be matters in which the applicant disagrees with the findings of fact to which the Tribunal has come.  This Court is not available to hear disputes as to fact nor is it able to substitute its findings of fact for those of the Tribunal.  To this extent the application does not disclose any reasonable cause of action of the type with which this court can deal.

7. Before me today the applicant made two complaints.  Firstly, he said that the hearing before the Tribunal was conducted on a telephone line upon which there was a disturbance.  He had difficulty understanding what was going on.  Unfortunately, the applicant did not make any reference to this complaint in his original application or his amended application.  He has not produced for me any evidence by way of the tape or the transcript with which I could assess the validity of the claim he has made.  He has not stated any of these facts upon affidavit.

8. The second complaint, which may be in some way related to the first, was that he had told his migration agent everything and his migration agent did not do a proper job.  In B41 of 2003 (2004) FCA 30 Dowsett J, dealt with a claim about the actions of a migration adviser, and at [25] his Honour said:

   “In my view the prosecutor cannot complain that his actions, taken in reliance upon advice received from his immigration adviser, led to his being denied procedural fairness.”

9. Once again I have not been made privy to the substance of the complaints about the migration agent.  I am satisfied that the application as it presently stands does not disclose a reasonable cause of action and having read the Tribunal's decision I can not believe there is any real utility in allowing the applicant an opportunity to amend because it seems to me that the Tribunal has made its decision upon grounds which are peculiarly within its own jurisdiction.  The Tribunal’s conclusion that the applicant could relocate is a finding of fact which this Court cannot impugn and which would override any problem associated with the other findings. 

10. I dismiss the substantive application.  I order that the applicant pay the respondent's costs which I assess in the sum of $2,500 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrate's Court Rules.

11. Mr Reilly informs me that the applicant has filed a notice of motion seeking that his client's notice of motion be struck out and that the solicitor for the Minister pay the costs personally.  The applicant has not addressed me in relation to that document, which I do not have in my file and, in any event, my findings above would preclude its success.  That notice of motion is dismissed.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: