SZCME v Minister for Immigration - [2006] FMCA 144

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCME v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 144

MIGRATION – Indian applicant – claimed political persecution – disbelieved by Tribunal – Tribunal adequately identified and dealt with claims – no jurisdictional error.

Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.474(1), 483A, Pt.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695
Re Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002 [2003] HCA 30

Applicant:

SZCME

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 90 of 2004

Judgment of:

Smith FM

Hearing date:

25 January 2006

Delivered at:

Sydney

Delivered on:

25 January 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms S Mason

Solicitors for the Respondents:

Clayton Utz

ORDERS

The Tribunal is included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 90 of 2004

SZCME

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 14 January 2004 under s.483A of the Migration Act 1958 (Cth), which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal dated

24 November 2003 and handed down on 18 December 2003. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
Section 483A was repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuance of the present proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth), s.8).
The jurisdiction of the Court under s.483A is the same as the Federal Court jurisdiction under s.39B of the Judiciary Act 1903 (Cth). Both are subject to limitations under Part 8 of the Migration Act, which have the affect that I do not have power to set aside the Tribunal decision and send the matter back to the Tribunal unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant's claims should be believed nor whether he qualifies for a protection visa.
The applicant arrived in Australia on a three month temporary business visa in November 2002. He lodged an application for a protection visa on 10 January 2003. His application did not reveal any assistance. He attached a statement in which his claims for having protection in Australia against return to his country of nationality India were set out.
In short, the applicant said that he came from the Indian state of Tamil Nadu where his father owned a coconut plantation and mixed business in his village. He said he was a Muslim by religion and had become a member of a Muslim political group active in his village in 1996. He claimed to have been an active member of that organisation, and to have advocated policies which caused him to be threatened by radical Hindu leaders. He said he went to Germany in 1999 “to relax for a while” as a result of these threats. When he returned, he organised a political meeting, but after threats did not “carry on with the scheduled meeting”. He said:
The police came to my house and arrested me with some other TMMK members on 1 December 1999 and I was released on 8 December without make any case.
He said that in December 2002 he started to organise another rally, and was again arrested by police and released without charge. He said he then decided to join another political party DMK. He said: “It was the first party, which offered me the protection that I was looking for. Furthermore, it was the ruling party.”
He ‘rallied’ for that party, but it lost the state election in 2001 and AIADMK came to power. He claimed that members of that party inquired about him at his parents' house, and he was advised to leave the village, which he did. After a year he returned to the village and resumed political activities. He said that “last month” he heard news of a new policy of the government, and conducted the public meeting to oppose it. “Straight away police came an arrest me then they took me to the police station”, but they released him “without any case.” He was then advised by his parents that he should leave India:
Not only the Hindu extremists are after you. Now police and AIADMK against you. The Tamil Nadu government will have no problem in tracing you from anywhere in India and killing you.
A delegate assessed these claims, but was not satisfied that there was a real chance that the applicant would face Convention based persecution for serious harm should he return to India. She refused the application on 12 March 2003, and the applicant appealed to the Refugee Review Tribunal on 7 April 2003. No supporting documents were given to the delegate nor to the Tribunal.
The applicant attended a hearing by the Tribunal on 6 November 2003, and the Tribunal gave a description of the hearing in its reasons. No better evidence is before me. Towards the beginning of the hearing:
The Tribunal asked the applicant whether he had ever been charged with any criminal offences in Indian and brought before a court. The applicant answered “No”. The Tribunal then asked the applicant whether he had ever been arrested in India. The applicant responded: “When they were searching to arrest me, I left the country”. The Tribunal then asked: “So you have never been arrested?” The applicant answered: “No”.
After further questioning, the topic of arrests was raised again:
The Tribunal asked the applicant (three times) what specific political problems he had encountered. The applicant told the Tribunal that he had been hassled by Hindus because he was the leader of the TMMK. He then said he was arrested on 1 December 2001 and released on 8 December. The Tribunal asked the applicant who had arrested him. The Applicant said: “The police …They warned us and then arrested us, and then released us”.
The Tribunal reminded the applicant that he had earlier told the Tribunal that he had never been arrested. The applicant said “It wasn’t in those years”. The Tribunal reminded the applicant that when he had been asked had he ever been arrested, he had replied: “No”. The applicant then said “I forgot about it”. The Tribunal asked the Applicant: “You forgot about it?” The Applicant answered “Yes”. The Tribunal advised that if he were able to “forget about it” then it was difficult to believe that it had ever occurred.
The Tribunal questioned the applicant about his business failures and his ability to leave India. It set out country information concerning the political parties active in Tamil Nadu.
Under the heading “findings and reasons”, the Tribunal referred to the applicant's claims. It stated its conclusion:
Although the applicant claimed to have been a leading member of TMMK as well as DMK, he did not produce any documentary evidence to substantiate this claim and his oral evidence on this issue was confused and inconsistent, as was his evidence relating to his alleged gaoling because of his political activities.
Although in his primary visa application he claimed to have been arrested on 1 December 1999 (as well as in 2001), following a cancelled political rally scheduled for the previous month, and beaten and rarely fed whilst in custody for 8 days, he did not repeat this claim to the Tribunal. In fact, at one point during the Tribunal hearing, he claimed he had never been arrested and had left India before he was able to be arrested. However, at a later time in the hearing, he claimed he had once been arrested, and this had occurred on 1 December 2001. When then asked by the Tribunal to explain why he had earlier told the Tribunal that he had never been arrested, the Applicant told the Tribunal that he had forgotten about that arrest at the time of the Tribunal’s question. As indicated to the Applicant, in the light of his alleged “forgetfulness”, I do not believe he was ever jailed because of his political activities, or for any other reason.
The Tribunal said that it did not believe the applicant had any political problems in India. It referred to his return travel to Germany, and the delay in travelling to Australia. It said:
I am satisfied that such actions (or evidence of inaction) are not consistent with a genuine fear of persecution in India.
The Tribunal continued:
The applicant told the Tribunal that one of the reasons he had come to Australia was because his coconut business in India had failed. He admitted to the commercial failure of this enterprise on more than one occasion, and I am satisfied not only of its occurrence, but that this was the sole reason that he left India. I am also satisfied that if the Applicant had held a well-founded fear of persecution in India for a Convention-related reason, he could have re-located and could now re-locate, to any of the places (such as Chennai, Bombay or Delhi) where he had previously resided (albeit temporarily) and conducted his business.
In essence, I am satisfied that the Applicant has never suffered persecution in India because of either his political opinions or his religion, and he does not have a well-founded fear of suffering persecution for a Convention-related reason in the reasonable foreseeable future.
I have considered the Tribunal's reasoning. In my opinion the Tribunal adequately identified the claims made by the applicant, and has addressed them in a manner which was open to it as a matter of law. I can find no jurisdictional error affecting its decision.
The applicant's original application to this Court adopted a familiar precedent consisting of a series of general allegations of error, including bad faith, denial of natural justice, failure to address material facts and bias. However, no particulars are given allowing them to be given meaningful application to the present decision of the Tribunal.
He filed an amended application on 28 June 2004. This also adopted a precedent which, with respect to its author, is largely incomprehensible. It appears to allege that the Tribunal failed to take into account a relevant consideration, being:
The chance of the applicant being arrested and/or persecuted on his return to India based on the fact that he was a member of a particular social group, and Muslim minority in India and political opinion in India.
However, in my opinion the Tribunal correctly identified the claims made by the applicant relating to his involvement in the two political parties to which he referred, and did address those claims. I am unable to identify any other claim made “tolerably clearly” which was not addressed by the Tribunal (see Allsop J in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15]).
The second contention in the amended application is that the Tribunal's adverse opinion was:
Not based upon reasoning which provided a rational or logical foundation for this belief.
This invokes the language of Re Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002 [2003] HCA 30 at [36-7] and Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [38]. However, I do not accept that contention. In my view the Tribunal's reasoning was rational and showed logic. It was also open to it on the material before it.
The applicant attended today and presented a written submission which addressed findings of the Tribunal about the applicant’s claimed arrest and jailing, and his ability to relocate. However, in my opinion, its arguments only canvassed the merits of the Tribunal’s findings.
In his oral submissions he made two points. The first also sought to explain further his inconsistent evidence to the Tribunal concerning arrests. The second was that the failure of his coconut business was not his sole reason for leaving India, and that political problems also caused him to come here. However, in my opinion both of those points addressed only the merits of the assessments of the Tribunal and do not establish jurisdictional error.
The applicant also said he wanted more time to make a more elaborate submission. However, I refused an adjournment. His case has been in this Court for two years. That time is regrettable from the point of view of the Court, but has allowed the applicant more than ample time to prepare any arguments he wished to make at today’s final hearing, which was appointed in January 2005.
In my opinion the Tribunal's decision is not affected by jurisdictional error. It is a privative clause decision for which relief is barred under s.474 of the Migration Act, and I must dismiss the application.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 13 February 2006