SZDLQ v Minister for Immigration - [2004] FMCA 947

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDLQ v MINISTER FOR IMMIGRATION

[2004] FMCA 947

MIGRATION – RRT decision – Indian Muslim fearing persecution from Hindu extremists – no error identified.

Migration Act1958 (Cth), s.483A, Part 8
Judiciary Act 1903 (Cth), s.39B

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

Applicant:

SZDLQ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 1290 of 2004

Delivered on:

30 November 2004

Delivered at:

Sydney

Hearing date:

30 November 2004

Judgment of:

Smith FM

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the Respondent:

Ms K Morgan

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to pay the respondent's costs in the sum of $4000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1290 of 2004

SZDLQ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application invoking the Court’s jurisdiction under s.483A of the Migration Act1958 (Cth) and s.39B of the Judiciary Act 1903 (Cth). The application challenges a decision of the Refugee Review Tribunal dated 30 March 2004 and handed down on 22 April 2004. The Tribunal affirmed the refusal of an application for a protection visa which had been made by the applicant on 25 March 2003 shortly after his arrival in Australia from India.
The Court's jurisdiction under s.483A is confined to judicial review of the administrative decision made by the Tribunal. The Court does not have power itself to consider whether the applicant is a refugee or should be given a protection visa, and does not have the function of reconsidering factual issues which were decided by the Tribunal. As interpreted by the High Court of Australia, the jurisdiction limitations on the Court under Part 8 of the Migration Act require that an applicant must locate a serious legal error which can be classified as a jurisdictional error before the Court can set aside the Tribunal decision and send the case back for reconsideration.
In the present case, the applicant was assisted by a migration agent to make his application and to pursue his appeal in the Tribunal. It is also apparent that he has been receiving assistance in the course of the Court proceedings, although there is no adviser on the record.
His visa application attached a lengthy narrative concerning the situation in India in relation to Muslims and their relations with Hindu communities. It recounted a personal history in which the applicant had been brought up and educated to university level in the State of Tamil Nadu and was in January 2002 selected to start a training program for missionary work among Muslims at a college in Gujarat State. He claimed that, following an incident in late February 2002 in which a train containing Hindus returning from a pilgrimage was set alight, there were riots in the course of which he was attacked by a violent gang, left unconscious and required extensive medical treatment. He claimed that he had lost his identity card at the place that he fell, and feared that the card had reached the hands of Hindu militants who would pursue him both in Gujarat and also back home in Tamil Nadu. When in February 2002 he obtained employment as an accountant at Chennai, he found that he was not safe even there “as certain unknown individuals waylaid me on my way back from work to my house, assaulted me and wanted me, a Muslim militant to leave Tamil Nadu for Pakistan.” He claimed that state protection was not available to him and that he decided to leave India because not only his life but the life of his family was in danger from Hindu militants.
A letter from his migration agent in June 2003 attached additional documents in support of the application. These included what appeared to be an unsigned statement by the applicant pre-dating the statement that had been attached to his visa application. In that statement a history was recounted which omitted mention of being attacked and injured in late February 2002 and which said merely: “when the infamous Godhra carnage took place I fled from the place for safety and landed at New Delhi the capital of India. From there I sought help from my relations and reached Chennai, capital and state of Tamil Nadu …during my flee, I had left all my personal belongings, including my identity card.”
The material forwarded by the migrant agent also included some alleged press reports and a certificate of post, which was claimed to have established that the applicant had sought to complain about his safety to a superintendent of police.
In its reasons the Tribunal sets out the claims which I have summarised above. It summarised the matters that were put to the applicant in the course of a hearing which he attended. A transcript of what happened on that occasion is not before me, and I have no reason to conclude that the applicant was not fairly confronted with various concerns that the Tribunal had about his story and the documents which he had provided.
The Tribunal analysed the evidence and noted the absence of medical corroboration of the injuries he had claimed to have suffered at the hands of Hindu militants. It concluded:
In the absence of any evidence supporting his claims that he was bashed, the Tribunal is not persuaded by the applicant's allegations. Accordingly, the Tribunal rejects claims by the applicant that he was bashed by Hindu militants.
The Tribunal noted the inconsistency in the two accounts given by the applicant concerning his loss of identity card and did not accept that he had lost it in the course of an attack by Hindu fanatics.
The Tribunal then addressed the claim that complaints had been made to the police by examining the corroborative material that had been put forward, and concluded that “the ‘Certificate of Post’ is not authentic”.
Somewhat repetitively, the Tribunal concluded:
The Tribunal finds that the allegations by the applicant that he was bashed and he lost his identity card during the incident, and that he subsequently filed a complaint with the police, are fabrications concocted by the applicant for the purposes of his application. The Tribunal rejects the allegations accordingly.
The Tribunal then addressed the applicant's claim that due to his studies at the Islamic College he was wanted in Tamil Nadu by Hindu fanatics. It concluded that in fact he had spent only a short time at the College, and that there was no evidence that he had attained any specific profile as a Muslim missionary. It found that “the profile of the applicant provides no basis for his claim that he is a target of Hindu extremists.”
The Tribunal finally dealt with the newspaper article alleged to corroborate that Hindu extremists were looking for him, and noted that its authenticity was dubious in the absence of information such as the name, date of publication and the page numbers.
The Tribunal concluded that it was not satisfied that the applicant had a well-founded fear of persecution based on a convention reason.
The application filed in this Court contained no ground of review.
Pursuant to a direction given at the first hearing date, the applicant filed an amended application which has four paragraphs under the heading "Grounds of Appeal". As far as I can understand them, the essential complaint is that the Tribunal made an erroneous finding of fact or of assessment of the applicant's claims when it decided that it was not satisfied that he was a refugee. This complaint cannot provide any basis for this Court’s intervention.
The applicant has repeated to me today his claim that he is a refugee based on religious grounds and the current situation in India. However, he has not been able to identify any error in the Tribunal's reasoning which could amount to an error of law and certainly not any error amounting to a jurisdictional error.
At the commencement of today's hearing the applicant filed a document headed, "Outline of Submissions" which appears to be an extract from submissions presented in other cases. The author of the document shows no sign of having addressed the present Tribunal's reasoning, and indeed the document appears to extract submissions made for a female applicant in relation to Bangladesh.
It presents a garbled argument that: “the present case differs substantially from Muin but the nature of denial of procedural fairness is very much similar”, apparently seeking to direct the Court's attention to Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30.
It is enough to say that the submission has no substance in this respect. It does not identify, and I am unable to identify, any favourable material which was before the Delegate which the Tribunal failed to consider, nor is there any evidence that the applicant was mislead in this respect. Moreover, the basis for the Tribunal's decision was its specific assessment of the applicant's own narrative, and it did not rely upon an assessment of country information. Similarly, the applicant’s submission does not identify any adverse material which was not drawn to the applicant’s attention and which it is alleged that the Tribunal relied on when rejecting the applicant's claim.
I can find no basis for setting aside the Tribunal's decision and dismiss the application.

RECORDED : NOT TRANSCRIBED

I order the applicant to pay the respondent's costs in the sum of $4000.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 10 December 2004