SZEZT v Minister for Immigration
[2005] FMCA 742
•23 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEZT v MINISTER FOR IMMIGRATION | [2005] FMCA 742 |
| MIGRATION – RRT decision – Indian Muslim business man – claimed persecution by Hindu business rivals and police – Tribunal found claims fabricated – no jurisdictional error found. |
| Migration Act 1958 (Cth), s.483A, Part 8 Judiciary Act 1903 (Cth), s.39B |
| Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 |
| Applicant: | SZEZT |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 2814 of 2004 |
| Judgment of: | Smith FM |
| Hearing date: | 23 May 2005 |
| Delivered at: | Sydney |
| Delivered on: | 23 May 2005 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the Respondent: | Mr J Mitchell |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed
Applicant to pay the costs of the respondent in the sum of $3700
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2814 of 2004
| SZEZT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application under s.483A of the Migration Act 1958 (Cth), which challenges a decision of the Refugee Review Tribunal dated
30 July 2004 and handed down on 10 August 2004. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. In a matter such as the present, the relevant jurisdiction is under 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, the limitations have the effect that I cannot set aside the Tribunal decision and send the matter back to the Tribunal unless I am satisfied that the Tribunal decision was affected by jurisdictional error.
I do not have the power myself to decide whether the applicant should be believed or whether he qualifies for a protection visa. As I have indicated, I cannot send the case back just because I have sympathy for the applicant.
In the present case, the applicant arrived in Australia in December 2003 on a business visa. He lodged an application for a protection visa on 31 December 2003. Attached to the visa application was a handwritten statement narrating the applicant’s history upon which he claimed to be a refugee. I consider that the Tribunal sufficiently identified and summarised his claims in the following part of its reasons:
In his PVA the applicant states he is an ethnic Muslim. The applicant claims he started a small business that became very successful. In 1995 he opened his own export and import business exporting spices, textiles etc in Madras. He did a lot of travelling. In 2000 he married. His office was in Madras. His business competitors were Hindus. There was a natural enmity between them and the applicant. They did not want a young Muslim taking away their markets. On 18 January 2003 the business magnates organized a huge meeting. They questioned him on how he could do business in a Muslim Hindu area. He was reported to the police as being a smuggler and a spy. The local people called him names. He complained to the police. The public was so angry with him and his family they burned his house. The police came and arrested and beat him for spying and smuggling. He was detained for 10 days..
Whilst the applicant was imprisoned, his uncle died from an attack and several other family members managed to escape with injuries. Not only was the applicant’s life at risk but so were other family members. The warden at the prison released him on condition he did not tell anyone that he had helped him.
The police were searching for him and there was an order to arrest him on sight. He secured a safe job for himself at SSS exports in August 2003. After a while the police traced him and almost imprisoned him. His employer asked him to resign but after the applicant had explained his situation he sent him to Australia. Should he return to India he will again be tortured and eventually killed.
The applicant did not present the Department with corroborative material in support of his claims and the delegate assessed them in the light of independent information concerning the situation of Muslim people in India. The delegate refused the visa on 4 March 2004.
The applicant appealed to the Tribunal on 31 March 2004. His application criticised the delegate’s decision, but at that stage did not put forward supporting material. However, when he attended a hearing on 18 May 2004, he presented a number of photographs showing houses destroyed by fire. The transcript is not in evidence before me, but the Tribunal provides a summary of what transpired.
Unlike many cases which come to the Court, the Tribunal in this case had the benefit of obtaining from India the applicant’s business visa application. The Tribunal says:
The applicant’s 457 business visa application dated 11 November 2003 discloses the applicant lived in Chennai. He had worked for SS Exports for four years and five months. His trip to Australia was to be undertaken to inspect olives for his employer.
The Tribunal questioned the applicant as to the inconsistency of that statement with the statement in his visa application that he secured that job only in August 2003, and that his employer sought to end his employment. The applicant also was questioned about his account of house fires and the Tribunal expressly notes the tender of the photographs concerning the two house fires he had suffered.
The Tribunal also says it put to the applicant country information concerning the Indian legal system and departure procedures from India. The Tribunal sets out extracts from that information in its reasons. Under the heading, “Findings and Reasons”, after referring to the applicant’s claims, it presented its major conclusion which was:
I accept the applicant is a Muslim. I do not accept the applicant is a witness of truth. I am satisfied the applicant fabricated his claims in order to enhance his claim to refugee status.
The Tribunal then gives three reasons for that conclusion. The first concerned the inconsistency between the visa application and the business visa application. The Tribunal preferred to accept the latter and found:
The applicant was employed by SS Exports for over four years and had commenced to work for this company in about 1999.
It said:
As the applicant was an employee and not self-employed from at least 1999, I do not accept that in January 2003 Hindu businessmen held a huge meeting because they had natural enmity towards him for his business prowess and questioned him, then reported him to the police as a smuggler or spy. It follows I do not accept he was of any interest to the police and that he was detained for 10 days, then released by the warden. It also follows that I do not accept his family was harmed because of his activities.
The second reason given by the Tribunal for considering that the applicant had fabricated claims was that in the light of information concerning airport checks in India, the Tribunal was satisfied the applicant left India without any problems. It said:
I do not accept the applicant is a wanted man as claimed.
The third reason given by the Tribunal was once again in the light of country information. The Tribunal considered:
There is no evidence before me to indicate that the applicant, if charged with an offence, such as arson or spying, would not have the protection of the Indian state because he is a Muslim.
The Tribunal concluded:
As I do not accept the applicant was in gaol and I do not accept the applicant as a witness of truth, I do not accept that persons wanted to create false allegations about him that he is a spy or they want to fabricate a case against him because he travelled out of India.
The Tribunal then addressed the applicant’s statements about house fires. In relation to the first fire, the Tribunal notes that the applicant himself had said that he was not sure of whether the first house was set on fire or caught ablaze.
In relation to the second house, the Tribunal said that:
I am not satisfied his house was burnt down in October 2003 by businessmen because of his ethnicity or his business prowess.
The Tribunal said:
I am satisfied that the applicant left India to come to Australia for business purposes whilst in the employ of SS Export. I am satisfied the applicant did not have a well-founded fear of persecution when he left India.
The Tribunal addressed the applicants’ situation if he returned to India as a Muslim in the light of the Tribunal’s previous findings. It referred to country information concerning the general situation of Muslims in India, and concluded:
The 28 Indian state governments have primary responsibility for maintaining law and order. There is a functioning police force and an independent judicial system in India where members of the judiciary are accountable for their decisions on appeal. The evidence available indicates that the Indian government has put in place, and does not hinder the operation of structures and processes which are available to any Indian who perceives their human rights to have been infringed or abused. I am satisfied that there are avenues of complaint available for the applicant in the event that he is attacked or harmed
I am therefore satisfied the applicant is able to return to India.
I am not satisfied that the applicant has a well-founded fear of Convention-based persecution on his return to India.
I have considered the Tribunal’s reasoning in the light of the evidence which was in front of it, and have not identified any aspect showing jurisdictional error on the part of the Tribunal.
In this Court, the applicant had no apparent assistance from legal advice. His original application used a precedent familiar to the Court listing heads of judicial review without providing any particulars indicating relevance to the present discussion and substance. Without particulars, I have not been able meaningfully to apply them to the Tribunal decision.
An amended application filed on 26 November 2004 sought to give particulars of complaints in support of the relief sought. Some of these have been elaborated in oral submissions to me today by the applicant, but he has not provided written submissions in accordance with directions given prior to the hearing.
His first complaint is:
The Tribunal did not properly consider in assessing the chance of my persecution and persecuted on my return to India based on the member of a particular social group Muslim minority in India.
I was persecuted because of my religious believe. Because of my religion I was persecuted by RSS. If I persecuted by RSS and Police it is not possible for me relocate any other place in India. I tried to relocate in India, but I failed because police searching. I will be persecute if I return back to India because of my religious believe.
I do not consider there is substance to the claim that the Tribunal did not consider the applicant’s claim to fear persecution as a member of the Muslim minority in India. In relation to the complaint that the Tribunal did not “properly” consider those claims, I consider that this amounts to no more than a criticism of the Tribunal’s factual assessments.
I consider that the complaints in this paragraph, as with other aspects of his case which the applicant has repeated to me today, do no more than reassert his claims to obtain a protection visa. As I have indicated to the applicant, I do not have the function of deciding that and I consider that his assertions do not identify jurisdictional error by the Tribunal when it assessed his claims.
The second particular in the amended application has the general assertion:
The Tribunal satisfaction that I am not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief.
I do not accept this contention. In my view, the Tribunal’s reasoning proceeded upon rational and logical grounds based on an assessment of the applicant’s credibility. I consider that the reasons given by the Tribunal for disbelieving his significant claims were open to it and do not reveal jurisdictional error.
The third particular alleges:
The Tribunal did not observe Migration Act properly to making the decision.
This has not been elaborated by the applicant in written or oral submissions.
The fourth particular is:
The Tribunal failed consider my documentary evidences. I refer CB pages 73-83
This makes reference to the photographs which the applicant had given the Tribunal and upon which he had been questioned. I am not persuaded that the Tribunal failed to consider the relevant aspects of this evidence. The Tribunal expressly considered the applicant’s evidence about the two house fires, and made a finding against the applicant’s explanation for the second fire.
Before me, the applicant has challenged that finding but I do not think his statements have revealed jurisdictional error by the Tribunal in relation to its finding. The applicant conceded to me that the photographs themselves did not establish the cause of the fire or the motivation of anyone involved in it. In those circumstances, the Tribunal has weighed up the photographic evidence in the light of the other evidence upon which it has made findings. I think its conclusions about the fires were open to it.
The applicant’s fifth particular was:
I am providing new documentary evidence to support my claims.
In relation to this he referred me to a certificate attached to his amended application purporting to be given by the village administrative office which certifies that a house:
had accidentally caught fire at 12 noon on 31/10/2003 and all the belongings been burnt down resulting in heavy loss.
I am not sure how the applicant thinks this advances his case but, in any event, it does not establish jurisdictional error by the Tribunal.
For the above reasons I have not been persuaded that the Tribunal decision was affected by jurisdictional error and I must dismiss the application.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 8 June 2005
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