SZCZE v Minister for Immigration
[2006] FMCA 892
•21 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCZE v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 892 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming delegate's decision no to grant protection visa – applicant a citizen of India claiming fear of persecution on ground of Christian religion – credibility. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.474 |
| SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 applied SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 applied SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 referred to |
| Applicant: | SZCZE |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 695 of 2004 |
| Judgment of: | Scarlett FM |
| Hearing date: | 30 May 2006 |
| Date of Last Submission: | 30 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 21 June 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondents: | Mr Potts |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Refugee Review Tribunal is joined as Second Respondent to the application.
The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,200.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 695 of 2004
| SZCZE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal that was made on 23rd January and handed down on
17th February 2004. The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection visa.
Background
The applicant is a citizen of India who arrived in Australia on
8th August 2003. He applied for a protection (class XA) visa on the
18th August, claiming protection on the grounds of his religion, which is Christianity. A delegate of the Minister refused his application for a protection visa on 16th October 2003. As a result, the applicant sought a review of that decision from the Refugee Review Tribunal.
Application for review by Refugee Review Tribunal
The applicant lodged an application for review with the Tribunal on 12th November 2003. In his application he claimed that the delegate overlooked an issue in his claim and stated that he was trying to collect further documentary evidence. He did not submit any documents with his application.
The Tribunal invited the applicant to attend a hearing to take place on 20th January 2004. The applicant responded in writing, stating that he did wish to attend the hearing and asked the Tribunal to call another man as a witness. He also provided a handwritten statement to the Tribunal, along with a copy of an Indian newspaper article and a statement to the NSW Police about an assault on him by three unknown men in Commonwealth Street, Surry Hills, New South Wales. This incident was said to have taken place on 31st October 2003.
The applicant attended the Tribunal hearing on 20th January 2004, and gave evidence that he was a Christian who claimed protection on account of his religion. He told the Tribunal that he and his brother were attacked in 1999 by members of a group called the RSS (Rashtriya Swayamsevak Sangh) and severely beaten, to the extent that they required hospitalisation. He said that the RSS threatened his family, including his family. Eventually, he left India for Australia.
The applicant told the Tribunal that he believed the attack on him in Sydney came from RSS members acting on instructions from the RSS in India.
The Tribunal considered independent country information about the treatment of Christians in India, particularly in Tamil Nadu, the area where the applicant lived.
The tribunal’s findings and reasons
The Tribunal’s findings and reasons are set out on pages 81 to 84 of the Court Book. The Tribunal accepted that the applicant was a Christian and that he and his brother were attacked in January 1999.
The Tribunal was not satisfied that the other incidents claimed by the applicant had occurred, or happened for the reasons claimed by the applicant. As a result, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution within the meaning of the Convention.
The Tribunal gave its reasons for not accepting the rest of the applicant’s claims on pages 82 and 83 of the Court Book. The Tribunal was not satisfied that:
·The applicant had any further problems from the RSS members, or any other RSS members, after January 1999.
·RSS members in Chennai attacked the applicant’s house some months after the January 1999 attack.
·The RSS members continued to issue warnings to the applicant and his brother and threatened his brother.
·That one incident, in the circumstances described by the applicant, constitutes persecution within the meaning of the Convention.
·The RSS would have any interest in the applicant in the future if he were to return to India.
·The RSS have any interest in the applicant’s wife because she is Muslim, or in the applicant and his wife as a couple.
·There is any connection between the attack on the applicant in Trichy in India and the assault in Sydney.
The Tribunal affirmed the decision not to grant a protection visa.
The application for judicial review
The applicant filed an application under s.39B of the Judiciary Act on 12th March 2004. He filed an amended application on
19th October 2004, seeking writs of certiorari and mandamus. He set out one ground of review: “That the RRT decision was effected to take into account a relevant consideration when it assessed weather[1] the delegate of the Minister raised reasonable grounds for not granting a protection visa.”
[1] sic
The applicant set out the following grounds in his application:
(i)The tribunal did not properly consider in assessing the chance of my persecution and persecuted[2]on my return to India based on the member of a particular social group minority Christian Tamil Nadu in India. I will be persecute (d) if I return back to India by RSS.
(ii)The Tribunal’s satisfaction that the applicant is not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief.
(iii)The Tribunal did not observe Migration Act properly to making the decision.
(iv)I will provide more details to support my judicial review application in my outline of submission.
[2] sic
The applicant did not file a written outline of submissions.
At the hearing, the applicant told the court that his amended application had been written for him by his then migration agent, Mr Mollah.
He was not able to explain the meaning of the terms used. He told the court that his former agent had asked him for evidence about the incidents he had suffered in his home country, but he could not do so because people were scared of RSS members and their supporters.
He told the court that if the court required evidence, he would try to get it. He also said that if he returned to India his life would be in danger.
The applicant told the court that there were discrepancies between the statements made by his former migration agent and the statements that he had made. He said that everything that he had written was true to the best of his recollection.
Conclusions
The grounds of review are, unfortunately, a standard set of grounds that have been in circulation for some time. If the applicant is asserting that the Tribunal failed to consider his claim on the basis of a particular social group, minority Christian in Tamil Nadu, India, it amounts to no more than a claim of persecution on account of his religion. Counsel for the respondent Minister has submitted, correctly in my view, that this claim does not disclose any jurisdictional error.
As to the claim that there was no rational or logical foundation for the Tribunal’s satisfaction that the applicant is not a refugee, the applicant provides no particulars of this claim. I am unable to discern any want of logic or rationality in the Tribunal’s reasoning. This ground must fail.
The applicant provides no particulars of his claim that the Tribunal did not observe the Migration Act properly in making its decision.
The applicant provided written statements and other material to the Tribunal as part of his claim for review and the Tribunal considered that material. I note from the decision at page 77 of the Court Book that the applicant provided a handwritten statement of his claims to the Tribunal and confirmed at the outset of the hearing that it was correct and it contained his claims.
I am not satisfied that any breach of s.424A of the Migration Act appears. The information upon which the Tribunal relied as the reason or part of the reason for affirming the delegate’s decision was the information that the applicant specifically provided to the Tribunal for the purpose of the review (SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 at [30]). This information falls within the exclusion in s.424A(3)(b) (SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2).
I am not of the view that there is any breach of s.424A in the Tribunal’s rejection of the applicant’s claim of having suffered harm or having a real chance of suffering harm in the future because his wife is a Muslim. The Tribunal made that decision based on the lack of any information about any threat to her for that reason. The Tribunal noted at page 83 of the Court Book:
He did not cite any incidents of harm that she experienced and, in particular, when he says that the RSS members went to his house in Chennai and threatened his family, the only reason they gave was his involvement in the church.
For all these reasons, I am not satisfied that any jurisdictional error has been made out. As there is no reviewable error, the decision is a privative clause decision that attracts the protection of s.474 of the Migration Act. The application will be dismissed.
There will be an order for costs in favour of the first respondent.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 21 June 2006
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