SZDSB v Minister for Immigration

[2005] FMCA 203

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDSB v MINISTER FOR IMMIGRATION [2005] FMCA 203

MIGRATION – Sikh claiming mistreatment by Indian police and Hindus – disbelieved by Tribunal – no error found.

Migration Act1958 (Cth), s.483A, Part 8

Judiciary Act 1903 (Cth), s.39B

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Applicant: SZDSB

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 1626 of 2004

Judgment of: Smith FM

Hearing date: 16 February 2005

Date of Last Submission: 16 February 2005

Delivered at: Sydney

Delivered on: 16 February 2005

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the Respondent: Mr Jordan

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs in the amount of $4250.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1626 of 2004

SZDSB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1.This is an application under s.483A of the Migration Act1958 (Cth), challenging a decision of the Refugee Review Tribunal dated 15 April 2004 and handed down on 11 May 2004. The Tribunal affirmed a decision of a delegate which refused a Protection Visa to the applicant.

2.Section 483A gives the Court “The same jurisdiction as the Federal Court in relation to a matter arising under this Act”. That jurisdiction is a judicial review jurisdiction, in the present case conferred by s.39B of the Judiciary Act 1903 (Cth), but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, those limitations have the effect that I do not have power to set aside the Tribunal’s decision and send the matter back to the Tribunal, unless I am satisfied that its decision is affected by jurisdictional error.

3.As I have explained to the applicant, I do not have power myself to decide whether he should be given a refugee visa, nor the factual truth of his account.  These are matters to be decided by the Tribunal only.   I cannot send the case back to the Tribunal just because I think the applicant should have an opportunity to put forward more information or to clarify answers that he gave at the first hearing to the Tribunal.

4.

The applicant arrived in Australia in October 2003 on a three months study visa and applied for a Protection Visa on

17 November 2003.  His application attached a five page statement recounting his experiences as a Sikh living in a village on the Haryana side of the border of the Indian States of Punjab and Haryana.  He obtained an education, and then had employment in India and in Botswana as a driver of transport vehicles.

5.His claims were summarised by the Tribunal, in my view sufficiently, as follows:

The applicant made the following claims in his application.  He was born in Jansui and was employed as a truck driver after finishing his high school education.  He was assaulted in 1989 by Hindus when driving to Calcutta from Delhi.  He was involved with Sikh activists following the assault.  He started transporting Sikh activists in a hidden compartment in his truck.  In 1995 he was discovered with three suspects and he was arrested.  He was beaten and tortured.  He claims that after 7 days he and three other persons were taken for a trip on the back of a jeep.  They were told they were to be released.  When they ran away he heard them firing from behind him.  One person who was running with him fell down and he could see that his head had been blasted off.  He escaped.  He went to hide in Shahbad for two years.  He later moved back to his village.  His father stood for elections as the Sarpanch for the Hayana Vikas Party.  There was a big fight after the campaign.  A lot of their people were arrested including his father.  The applicant escaped the arrest and left.  In 1999 he went to Botswana with the help of an agent.  He returned to India in 2000 but the police still had warrants for him.  He was in hiding for 2 months and he returned to Botswana.  He later returned again to India in October 2002.  There were warrants for him and so he left again but came to Australia.

6.Although the transcript of the hearing before the Tribunal which the applicant attended is not in evidence before me, the Tribunal gives an account of its questioning of the applicant at the hearing concerning his claims, and I have no reason to conclude that it was inaccurate. 

7.The Tribunal addressed the claims in its reasons under the heading: “Findings and Reasons”.  It initially considered the applicant’s claims that he faced warrants for his arrest in India and formed the opinion that this was untrue.  It found that “the applicant is not wanted by the police in India”.  In support of this finding, the Tribunal identified and relied on country information as to checking procedures at Indian airports, which made the claim highly improbable.  It also took into account the applicant’s “poor quality of evidence”, and suggested that it was “most unclear and unconvincing”.  I think these conclusions were open to the Tribunal as a matter of law.

8.The Tribunal then considered the applicant’s accounts of being detained in 1995 and 1991.  I think that the Tribunal’s reference to “the 1991 incident” at page 11 of its reasons should be read as a reference to the claimed assault by Hindus in 1989.

9.In relation to the 1995 incident, in which the applicant claimed he had been arrested by police and mistreated by them, the Tribunal identified what it thought were inconsistencies between the account given in the statement attached to the applicant’s protection visa and his answers to questioning by the Tribunal.  The Tribunal rejected the claim that the applicant had been captured and then shot at by the police in 1995.   Some of its reasoning is not entirely persuasive at a factual level, but in my view the Tribunal’s handling of the evidence in relation to that matter was open to it as a matter of law.  I consider that its conclusion is not vitiated by any error amounting to jurisdictional error.

10.In relation to the earlier assault by Hindus, the Tribunal considered that there were inexplicable elements about the applicant’s account, and concluded that it “is not satisfied that this assault occurred”.

11.The Tribunal’s conclusion was as follows:

The Tribunal is not satisfied that the applicant has any political profile or was ever attacked or mistreated because of his ethnicity and/or religion.  There is no real chance that he would be harmed by the authorities or any other person in India were he to return.  The applicant is a national of India and has been living outside of the country for several years.  He has been able to return to India on two previous occasions without any hindrance by the authorities.  The applicant does not have a well founded fear of persecution for a convention related reason.

12.I have not been able to identify any ground for judicial review amounting to a jurisdictional error arising from the Tribunal’s reasons or its proceedings as revealed in the evidence before me. 

13.The applicant has not been assisted by legal representatives in the present proceeding, although his original application is in a form deriving from a legalistic pleading.  It lists nine grounds of judicial review which are merely the general heads of judicial review, without any particulars showing that they may have any substance or reference to the present Tribunal decision.  I have not been able to give them any meaningful application in the present case.

14.The applicant was directed to file an amended application and has done so.  He was also directed to file written submissions in advance of the hearing and has not done so. 

15.In his amended application there is a garbled allegation that the Tribunal failed to take into account relevant considerations, but I am unable to identify any substance to that allegation. 

16.Particulars given in the amended application claim that the Tribunal did not properly assess the chance of the applicant being persecuted on return to India based on being a member of a particular social group and being involved in politics as a member of the Haryana Vikas party.   As framed, in my view, it is no more than a complaint about how the Tribunal assessed the claims that were made.  

17.I do not consider that the Tribunal overlooked any claim which was made.   It addressed his claimed fears based on involvement in politics, when finding that the applicant’s father did not stand for election for the Haryana Vikas Party, and that the applicant did not get involved in a violent clash with the Hindus, and was not wanted by police as a result.   Its general conclusions set out above covered any residual claim based on his ethnicity or religion.

18.The amended application also contains general allegations that the Tribunal’s reasoning lacks a rational or logical foundation, and that the Tribunal did not observe the Migration Act. However, no substance has been shown for these allegations.

19.Before me today, the applicant sought an adjournment to obtain more documents and to obtain the assistance of a solicitor.  However, I refused his applications, pointing out that new documents would not be relevant to the present proceedings, and that he had had over eight months after commencing his application to obtain legal assistance. 

20.He made submissions to me that he had been under pressure at the Tribunal hearing and felt he had not fully explained himself, in particular about three aspects of his narrative which had not been assessed by the Tribunal in his favour.  He also said that he felt the Tribunal had been unfair because he had given the Tribunal all his information but had not been believed. 

21.I do not think the applicant was able to point to any aspect of his case which showed any jurisdictional error on the part of the Tribunal.

22.For all the above reasons I must dismiss his application.

RECORDED  :  NOT TRANSCRIBED

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:  4 March 2005