SZIXK v Minister for Immigration

[2006] FMCA 1372

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIXK v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1372

MIGRATION – RRT decision – Indian claiming fear of persecution as member of banned organisation – 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.424A, 476

Applicant: SZIXK

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG1606 of 2006

Judgment of: Smith FM

Hearing date: 5 September 2006

Delivered at: Sydney

Delivered on: 5 September 2006

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Mr K Sinnadurai

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed under Rule 44.12 on the ground that it does not raise an arguable case for the relief claimed. 

2. The applicant must pay the first respondent’s costs in the sum of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1606 of 2006

SZIXK

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application filed on 6 June 2006 in which the applicant applies for an order that the respondent show cause why a remedy should not be granted under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 18 April 2006 and handed down on 11 May 2006.  The Tribunal affirmed a decision of the delegate refusing to grant a protection visa to the applicant. 

2. The application was returnable at a first court date before me on 5 July 2006.  The applicant attended and was assisted by a Tamil interpreter.  The nature of the proceedings was explained to him by myself and in an information sheet.  I made orders allowing the applicant to file an amended application and additional affidavits after receiving a court book and referral for free legal advice.  I warned the applicant that his case might be dismissed today if I were not satisfied that it raised an arguable case for the relief claimed. 

3. The applicant has filed a document attached to a notice of change of address for service, which I have treated as an amended application.  I shall consider it further below. 

4. The applicant arrived in Australia in September 2005 and on 12 October 2005 he applied for a protection visa assisted by a migration agent.  His reasons for seeking protection in Australia against return to his country of nationality, India, were set out in the form of application.  He claimed to have been an activist of the Tamil Nadu Liberation Army (“TNLA”), which is a banned organisation in India.  He said: 

   I was working for TNLA undercover operation and organising the meetings, work schedules, public contacts, people problems of our area, etc.  I was arrested many times by police in connection with my TNLA association.  The charges were fabricated, baseless, but my movement was restricted by police cases.  I was dragged to courts & police stations often resulting economic hardship.  My image with people was systematically isolated.  Police highhandedness heightened, on me so I had to escape from them for fear of my life.  

5. Few details of these claims were provided, but the applicant elaborated them when he attended a hearing held by the Tribunal on 6 March 2006.  He also said that he was still involved with the TNLA when he left India.  He told the Tribunal:  

   Asked about his employment history the Applicant said he was not paid by the TNLA.  He said his father‑in‑law looked after the family.  He had a number of short‑term positions as a bus conductor in 1989‑90 but these ended as a result of police pressure on him.  He had also occasionally worked as a labourer and from 1996 to 1999 he had worked on a boat.  After that he went back to working as a bus conductor for two or three years but this ended in 2004 when a bus was blown up and he was implicated by the police and fired.  Asked about his employment after this he said he had no job.  Later he said he had been in jail for about four months in 2004 and was then released on bail by a ‘big figure’ who was a market trader.  He worked for this person helping load goods in the market. 

6. The applicant was questioned by the Tribunal about his knowledge about the death of a TNLA leader.  It also put to the applicant information from the Department concerning the business visa upon which he entered Australia.  A file note indicated that the visa had been granted on the basis that he was travelling for an employer for business purposes, and his travel was supported by a letter from the Secretary of the Indo‑Australia Chamber of Commerce.  The file note recorded an officer in the New Delhi office asking the Secretary to comment on the bona fides of the visa applicant.  The Secretary was noted as saying:  

   … that pa [the applicant] is the brother‑in‑law of Company’s Director: Mr J and pa [the applicant] will be travelling with him.  He added that pa [the applicant] plays an imp role in Co as financial Advisor and represent their company at Indo A/an Chamber of Commerce.  

7. The Tribunal questioned the applicant about this information, and also put the information to the applicant after the hearing by way of a letter served under s.424A, drawing attention to the inconsistencies between the basis on which the business visa had been obtained and the applicant’s claims to have been an unemployed activist for the TNLA.

8. In response, the applicant presented documents purporting to substantiate a claim that he was a bus conductor, and showing that his spouse had come to India as a Sri Lankan refugee. 

9. The Tribunal in its statement of reasons referred to country information concerning the TNLA which showed it to be “a violent criminal organization operating in Tamil Nadu”, which had been associated with a notorious “forest brigand”, and had been proscribed in India since mid‑2002 as a terrorist organisation. 

10. Under the heading “Findings and Reasons”, the Tribunal said that it was not satisfied that the applicant had provided a truthful account of his background or his claimed involvement with TNLA.  It referred to his inability “to demonstrate any significant knowledge of the TNLA, in particular knowledge about the movement’s leadership”.  The Tribunal also said: 

    More importantly, the evidence from the Applicant’s Departmental file indicates that he was not unemployed, working as a bus conductor or engaged in loading goods at a market at the time he left India but was, on the contrary, employed as the Finance Development Manager of [company], an established company whose Director was his brother‑in‑law.  The evidence indicates that in this position he also represented the company in the Indo‑Australian Chamber of Commerce. 

11. The Tribunal noted the applicant’s disclaimer of that employment, but it preferred the information provided to the Department officer in New Delhi.  It considered the bus conductor’s licence presented by the applicant, and thought that it showed signs of photo tampering.  The Tribunal concluded:  

    The Tribunal is not satisfied, on the evidence before it, of the truth of the Applicant’s claims concerning his employment, his involvement with the TNLA or his claim to have lived his life in recent years either in prison or in hiding.  These are core claims in the Applicant’s case.  The Tribunal is not satisfied that, having been untruthful in such core claims, any weight can be placed on the Applicant’s other claims.  Specifically, the Tribunal is not satisfied as to the truth of his claims that he is at risk of harm from the Indian authorities, relatives of persons he sent on a training mission to Sri Lanka, members of the TNLA, members of the LTTE or members of any other organization.  The Tribunal is not satisfied that the Applicant has a well‑founded fear of persecution because of his political opinion or for any other Convention reason should he return to India now or in the reasonably foreseeable future and is not satisfied that he is a refugee. 

12. I have considered the procedures and reasoning of the Tribunal, and can see no arguable ground of jurisdictional error available to the applicant. 

13. His application contains the following grounds: 

    1.The applicant was notified on the 11 May 2006 and was posted and the same was received few days later. 

    2.The Refugee Tribunal has not taken into account all the relevant information when makings its decision, and in doing, so has erred in law. 

    3.The Tribunal’s decision is totally contradictory of Professor Hathaway’s quote.  A claimant should not be impugned simply because of vagueness or inconsistencies in recounting peripheral details.  James Hathaway 1991 “The law of refugees status” Butterworths Cananda ) contrary to its claims of not taking an overly stringent approach to questions of credibility, in this particular situation the Tribunal seems to have done just that. 

    The applicant fees that the Tribunal did not give weight to the statements made by him in particular harassment. 

14. In relation to Ground 2, no particulars are provided, and I am unable to identify any information which was arguably not taken into account by the Tribunal. 

15. The criticism in Ground 3 as to the Tribunal’s credibility finding, in my opinion, raises no arguable ground in relation to this present Tribunal’s decision.  The concerns identified by the Tribunal were manifestly more than “vagueness or inconsistencies in recounting peripheral details”.  The contention that the Tribunal “did not give weight to the statements made by [the applicant]” does not do more than challenge the Tribunal’s factual assessments. 

16. The document filed by the applicant subsequent to the first court date appears to me to reproduce an argument presented in a different case.  Grounds 1 through 9 challenge reasoning by a Tribunal in relation to a relocation finding.  However, the present Tribunal’s reasoning never took it into that area. 

17. The further contentions appearing under the heading “Particulars” in that document are: 

    The Tribunal used critical adverse information obtained after the delegate’s decision, which was neither provided to the Applicant before the hearing nor put to the applicant during the hearing – MUIN. 

    The Tribunal misapplied the test or alternatively misinformed the Applicant about the test. 

    The Tribunal member failed to give proper and adequate reasons which he was required by the Act to do, and, therefore the Tribunal failed to exercise its jurisdiction. 

    The RRT erred in failing to consider all claims and issues put forward by the applicant. 

18. The first of these paragraphs suggests there was a failure of procedural fairness or possibly a breach of s.424A. However, as I have indicated above, the information which was taken from the Department’s file, and which the Tribunal relied upon significantly, was fully and fairly put to the applicant both at the hearing and in a s.424A letter. I can see no argument available to the applicant that these procedures were defective.

19. The further general contentions lack particulars allowing me to meaningfully apply them to the Tribunal’s decision, and I can see no arguable merit in them.  

20. The applicant made only two brief submissions to me today.  The first was that all that he said was true, and the second was that he “must live here”.  However, neither of these submissions can show an arguable case. 

21. I have considered all the material before me and am not satisfied that the application has raised an arguable case for the relied claimed. I consider it appropriate to dismiss the application under r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  18 September 2006