SZIEC v Minister for Immigration & Anor - [2007] FMCA 1567

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIEC v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1567

MIGRATION – RRT decision – Indian claiming persecution for religion and liberal political activities – disbelieved by Tribunal – no arguable case – application dismissed at show‑cause hearing.

Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a)
Migration Act 1958 (Cth), ss.424, 426(3), 427

Applicant:

SZIEC

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1864 of 2007

Judgment of:

Smith FM

Hearing date:

4 September 2007

Delivered at:

Sydney

Delivered on:

4 September 2007

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms M Mafessanti

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed under Rule 44.12(1)(a) on the ground that it does not raise an arguable case for the relief claimed.
The applicant must pay the first respondent’s costs in the sum of $2,400.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1864 of 2007

SZIEC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant has applied for a protection visa on the ground that he fears persecution if he returns to his country of nationality, India. In claims presented by his agent, and by him at two hearings of the Refugee Review Tribunal, he claimed to fear persecution as a member of the Muslim minority community in his region. He also claimed that he had established “a group of like minded school friends” in his home town, who promoted tolerance and liberal politics, including the rights of homosexuals. He claimed that the Indian authorities had not given effective protection for his activities.
In a submission to the Tribunal, he made a further claim, which is at Court Book pages 81‑82. This was that after coming to Australia in 2003 he became aware that enquiries had been made by the Australian Consulate General in Bombay in 2005 concerning his whereabouts. He said that this activity by the Consular “proves my case that people have been trying to get me there”. At the hearing conducted by the Tribunal as presently constituted, the applicant said that there was a particular person, “A”, who was a “thug for hire” and who, with his gang, was pursuing the applicant.
The applicant’s application for a protection visa was refused by a delegate of the Minister on 4 July 2005, and that decision was affirmed by a decision of the Tribunal handed down on 22 May 2007. An earlier decision of the Tribunal, differently constituted, had been set aside by consent order on 10 January 2007.
In its present decision, the Tribunal found several reasons for disbelieving the applicant’s claims to have engaged in activities which had incurred persecution by A and his gang. In particular, the Tribunal noted that the applicant had ample opportunity to present corroborative material for his claims, and had not done so in circumstances where this could be reasonably expected. It concluded that “this whole story is a concoction”.
In relation to the claimed enquiries made by an Australian official in 2005, it said:
There is no direct evidence before me that such enquiries were made, but, even if they were, I do not accept that they would either cause or be evidence for past or possible future persecutory actions against the applicant by anyone.
The Tribunal also noted aspects of the applicant’s own behaviour which it regarded as “hardly consistent with his having a fear of persecution”. This included his remaining illegally in Australia for several years after the cancellation of his 457 visa, without making a claim for a protection visa until he was taken into immigration detention.
The Tribunal did not accept that the applicant was at risk for promoting his ideas about harmony between Muslims and other communities, nor for promoting tolerance of homosexuals.
In relation to his religion as a Muslim, it said:
There is no evidence before me that in Chennai [where the applicant had lived] relations between the Muslim and Hindu communities are persecutory. The applicant lived in a predominantly Muslim area of Chennai.
It concluded:
I do not accept that there is a real chance of the applicant suffering harm amounting to persecution for reason of his religion, his political opinion, his membership of a particular social group or for any other Convention reason should he return to India in the foreseeable future.
The applicant now asks the Court to set aside the Tribunal’s decision and to order it to reconsider his refugee claims.
His application to the Court has been listed today to consider whether the applicant has raised an arguable case for the making of these orders. He has been given an opportunity to amend the grounds of his application and to file further evidence, after receiving a bundle of relevant documents and a referral for free legal advice. He has, however, not filed any further material other than his original application.
I have considered the material which is before the Court and the applicant’s submissions to me today, and have been unable to identify any arguable ground of jurisdictional error arising from the Tribunal’s procedures or reasons.
The grounds set out in the applicant’s application are obscure. It makes an unparticularised claim that the Tribunal “has not considered the arguments and proof given” and “failed to take into account a claim”. I endeavoured today to obtain more substance to these arguments from the applicant. As I understood him, he complained about two aspects of the Tribunal’s procedures.
His first complaint is that, at the hearing, he invited the Tribunal to contact witnesses who would support his claims. He does not claim that the Tribunal agreed to do that, nor that this request was ever made in any formal way by him or by his agent, whether at or after the hearing. No transcript has been put into evidence to show any procedural irregularity, although the applicant and his agent were given the tapes of both of the hearings after they occurred.
However, even assuming the truth of the applicant’s account of what happened at the hearing, I do not consider that he has raised an arguable ground of review. The Migration Act gives the Tribunal discretions as to which witnesses it contacts and takes evidence from (see ss.424, 426(3), 427), and it is not obliged to conduct its own independent enquiries. In the circumstances informally recounted to me by the applicant today, I cannot see an arguable basis for claiming that the Tribunal failed to follow any procedure it was required to follow.
The applicant’s other complaint was that after the hearing it occurred to him to tell his agent of the existence of e‑mails which would show that in 2000 he had been involved in reporting to government agencies a migration racket operating in Chennai in relation to the export of labour. He thought that this would show his involvement in activities giving rise to persecution. He complains that the agent failed to do this before the Tribunal handed down its decision.
There is no evidence presented to the Court that the applicant presented material to his agent for forwarding to the Tribunal. However, even assuming that evidence of this could be presented, the applicant does not claim that it would show that the Tribunal was on any notice of the existence of such evidence or of an intention to present it. I do not consider that the applicant’s claims about this matter raise any arguable case for establishing a failure by the Tribunal to follow a required procedure, or any other jurisdictional defect.
Taking into account all that was said to me by the applicant and all the material before me, I am not satisfied that his application has raised an arguable case for the relief claimed. I consider that it is appropriate to dismiss the application under r.44.12(1)(a) of the Federal Magistrates Court Rules.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 26 September 2007