SZIXQ v Minister for Immigration - [2006] FMCA 1375

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIXQ v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1375

MIGRATION – RRT decision – Indonesian applicant claiming persecution as a Communist – disbelieved by Tribunal – no arguable case – application dismissed at show cause hearing.

Migration Act 1958 (Cth), ss.424A, 476
Federal Magistrates Court rule 44.12(1)(a)

Applicant:

SZIXQ

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1619 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:

Ms B Griffin

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed under Rule 44.12 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 $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1619 of 2006

SZIXQ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 7 June 2006, in which the applicant applies for an order that the respondents show cause why a remedy should not be granted under s.476 of the Migration Act in relation to a decision of the Refugee Review Tribunal dated 21 April 2006 and handed down on 11 May 2006. The Tribunal affirmed the decision of a delegate made on 14 February 2006, which refused to grant a protection visa to the applicant.
The application was returnable before me at a first Court date on 5 July 2006. The applicant attended and was assisted by an Indonesian interpreter. I gave him leave to file an amended application and any additional affidavits after receiving a bundle of relevant documents and a referral for free legal advice. When listing the case for today, I warned the applicant that his application might be dismissed if I were not satisfied that it had raised an arguable case for the relief claimed.
The applicant has received a legal referral, but has filed no documents further to those originally filed. I shall consider them below.
The applicant arrived in Australia in October 2005, and on

21 November 2005 lodged an application for a protection visa assisted by an agent. His claims for protection in Australia against return to his country of nationality, Indonesia, were set out in the application form. He claimed to have become a member of the Indonesian Communist Party in July 2002, and to have left Indonesia with a fear of being persecuted because of that membership and his political opinions.

He claimed that:
I have attended meetings and seminars to study the theory of Communism, including Marxism and Mao Tse-tung thought. To promote Communism, I have distributed books written by Mao Tse-tung and Marx, also brochures/flyers.
He claimed that his activities were underground, but in September 2005:
The Indonesian police arrested the man who has printed the promotion materials for Communism and also other PKI members around me.
He also claimed that since coming to Australia his wife had told him that police had visited his home “searching for Communism material”. No supporting details nor information about these claims was provided to the Department or on appeal to the Tribunal.
The applicant attended a hearing with his agent held by the Tribunal on 29 March 2006. He presented the Tribunal with his passport.

It appears the Tribunal also had other material before it in relation to his obtaining a visitor’s visa.
In a carefully written and reasoned decision, the Tribunal set out the applicant’s evidence, in which the Tribunal questioned the applicant about his knowledge of Communism and his party. The Tribunal questioned the applicant about various concerns, and subsequently wrote to the applicant pursuant to s.424A of the Migration Act.

This letter clearly put to the applicant various inconsistencies which the Tribunal thought might be relevant to an assessment of his credibility.
In its statement of reasons, the Tribunal referred to country information concerning the suppression in Indonesia of the PKI and its members.

It noted:
There were no reports located in the available sources identifying the present existence of the party or the identification of PKI members and current leaders. There were no reports located in the available sources to suggest there were arrests of PKI members in September 2005.
Under the heading “Findings and Reasons” the Tribunal presented a conclusion that it: “did not find the applicant to be a truthful or credible witness”, and gave a series of detailed reasons for this conclusion.
It thought the applicant had shown a quite inadequate level of political thought and knowledge of Marxism and Maoist theory. It thought it implausible that he could not explain what happened at the meetings he claimed to have attended every month for three years. It found “unconvincing” the applicant’s inability to name books by Marx and Mao. It found inconsistencies in the applicant’s claims about his employment history, and in his travel out of Indonesia firstly to Malaysia and then to Australia. It also found inconsistencies in the applicant’s story as to what his wife told him.
At the end of its findings, the Tribunal said:
Taking into account all of the evidence the Tribunal does not accept that the applicant was a witness of truth. The Tribunal does not accept that the applicant was a member of the PKI. The Tribunal does not accept that the applicant attended meetings of the PKI that he promoted the PKI or acted as a courier of the PKI. The Tribunal does not accept that the applicant travelled to Malaysia in September 2005 to attend a meting of the PKI. It follows the Tribunal does not accept that the police visited his home on 10 November 2005 searching for communist materials or that his house was ransacked. The Tribunal finds the applicant has fabricated these claims in order to strengthen his claim for refugee status.
The Tribunal is not satisfied that the applicant has a well founded fear of persecution for any Convention reason.
I have considered the documents before me, and am unable to identify in the procedures and reasoning of the Tribunal any arguable ground of jurisdictional error.
The grounds of the application set out in the application filed by the applicant and his affidavit do not even attempt to criticise the Tribunal’s reasoning on its merits or otherwise. They assert that the applicant “need a chance to stay in Australia for freedom” and implicitly invite the Court to provide that opportunity. However, as I have explained to the applicant, it is not the function of the Court to assess his refugee claims for itself.
In the absence of any arguable error going to the Tribunal’s jurisdiction to make its decision, I must dismiss his application. On all the material before me I am not satisfied that the application has raised an arguable case for the relief claimed, and I consider that it is appropriate to dismiss the application under r.44.12(1)(a).

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 20 September 2006