SZCUP v Minister for Immigration
[2006] FMCA 582
•21 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCUP v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 582 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in India following criminal activities by others in Kuwait – RRT noting adverse credibility findings and finding no convention nexus to the asserted harm – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), s.474 |
| Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SZCUP |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG491 of 2004 |
| Judgment of: | Driver FM |
| Hearing date: | 21 April 2006 |
| Delivered at: | Sydney |
| Delivered on: | 21 April 2006 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms C Gray Sparke Helmore |
ORDERS
The Refugee Review Tribunal is joined as the second respondent to the proceedings.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG491 of 2004
| SZCUP |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”). The RRT should be a respondent to the application and I will order that the RRT be joined as the second respondent. The decision was handed down on 3 February 2004. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant, who is a citizen of India, had made claims of persecution which related partly to circumstances in India, but substantially to events occuring outside India. In particular, the applicant had claimed a fear of harm as a result of events he said occurred in Kuwait while he was working there. The background facts are adequately summarised in paragraphs 2 to 6 of the Minister's written submissions. I adopt those paragraphs as background for the purposes of this judgment:
The applicant was the secretary of the Tamil Association and provided financial support to the Tamil Tigers between 1986 and 1990. In March 1991, he moved to Kuwait for employment with an international air freight company. He was threatened, and his son was abducted, by a man named “Ravi” when the applicant refused to send parcels to India without them having to go through customs. He believed this man to be connected to a well-known criminal, Daud Ibrahim, and that the parcels probably contained drugs, pornography and gun parts. He reported the incident to his manager, who called the police but the suspects were not apprehended. Although his son was released, the threats and assault continued. The applicant was accused of being a customs informant after some of the perpetrators were caught in 1999.
In April 2001, the applicant returned to India to resolve a land dispute which he believed was related to the incidents in Kuwait. He was the target of a hit and run accident and was kidnapped and forced to sign a blank sheet of paper relinquishing his land without payment. The applicant feared that on return to India he would be killed because those involved in the land dispute believed that he would expose them. He also feared persecution by the state and central police authorities and the ruling political party.
RRT’s findings
The RRT found that the applicant was not a credible witness and did not accept his claims of past harm (court book, page 74.3). The RRT found the applicant’s claims to be implausible and far-fetched (court book, pages 74.3-74.6).
The RRT found that even if it were wrong and the applicant’s claims were true, it was not satisfied that his claims had the requisite Convention nexus (court book, page 74.7). The RRT found that the essential and significant motivation of those who allegedly wished to harm the applicant was criminal and not Convention related.
In any event, the RRT found that it was reasonable for him to relocate within India if he did not wish to return to Tamil Nadu (court book, page 74.9). The RRT drew adverse conclusions about his subjective fear of persecution because he had chosen to return to Tamil Nadu prior to coming to Australia (court book, page 75.2).
The applicant relies upon an amended application filed on 19 October 2004. That application is adequately dealt with in the Minister's written submissions. I adopt paragraphs 7 to 9 of those submissions:
The amended application filed on 19 October 2004 contains numerous “grounds” of review which take issue with findings of fact by the RRT.
The RRT’s reasons indicate that it gave careful consideration to all of the evidence which the applicant put to it. The RRT reached an adverse finding as to credit on the basis of the applicant having made false claims. It was open to the RRT to reach findings as to the applicant’s credibility, this being a function of the primary decision-maker, for which detailed reasons need not be given.[1] In fact, reasons were given as to why the applicant was not believed on these matters, the central one being that his claims to the RRT were far-fetched and implausible.
The RRT went on to consider the applicant’s claims in the event it was wrong and identified sound alternative bases for rejecting his claim to be a refugee.
[1] Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407, 423 per McHugh J.
The applicant today did not wish to make any oral submissions.
He has not filed any written submissions, neither has he filed any evidence in support of his amended application. The only evidence I have before me is the court book filed on 13 July 2004.
There is nothing on the face of the amended application which points to any jurisdictional error. Essentially, the applicant takes issue with factual findings made by the RRT. That dispute, in my view, does not give rise to any legal issue of significance.
The applicant also asserts in his amended application that he was feeling tension and nervous at the time of the hearing and that this is an explanation for the evidence he gave which was found by the RRT to be inconsistent or confusing. However, there was no evidence that the RRT was put on notice of any health issue at the time of the hearing or otherwise. Indeed, on page 73 of the court book, the presiding member records that the RRT indicated to the applicant that there would seem to be inconsistencies in his evidence in terms of the claimed chronology he gave and that also, even if his claims were true, there would not seem to be any Convention reason for the motivation of those who wished to harm him. The presiding member records that the applicant restated his concern that he feared the people he had referred to might harm him.
In my view, the decision of the RRT is free from any jurisdictional error. Essentially, the applicant failed for two reasons. The RRT did not find him to be a credible witness and did not believe his claims. However, the presiding member was not so confident of that adverse credibility finding that the matter could have been left there. On page 74 of the court book the presiding member went on to consider what the circumstance would be if the credibility finding was wrong. The presiding member concluded that, even if the applicant's claims were true, there was no Convention nexus with the harm the applicant claimed to fear.
I see no legal error in the approach taken by the presiding member.
It is unnecessary, in my view, to consider the purported relocation finding made by the presiding member. In my view, that finding was not determinative of the outcome of the review application.
I find that the decision of the RRT was a privative clause decision. Accordingly, I will dismiss the application.
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $3,300.
I accept that that is a proper assessment on a party and party basis. The applicant claims to be impecunious but, as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order.
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 $3300.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 2 May 2006
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