SZJGC v Minister for Immigration

[2006] FMCA 1791

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJGC & ANOR v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1791

MIGRATION – RRT decision – Hindu Indian from Gujarat – claimed persecution by Muslims and as supporter of BJP – Tribunal found claims fabricated – no arguable case – application dismissed at show‑cause hearing.

Federal Magistrates Court Rules 2001 (Cth), rr.44.12, 44.12(1)(a)
Migration Act 1958 (Cth), ss.424A(1), 424A(3)(b), 476

First Applicant: SZJGC

Second Applicant: SZJGD

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2319 of 2006

Judgment of: Smith FM

Hearing date: 13 November 2006

Delivered at: Sydney

Delivered on: 13 November 2006

REPRESENTATION

Counsel for the Applicants: First 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 applicants must pay the first respondent’s costs in the sum of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2319 of 2006

SZJGC

First Applicant

SZJGD

Second 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 21 August 2006 seeking an order that the respondents 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 6 July 2006 and handed down on 25 July 2006.  The Tribunal affirmed a decision taken by a delegate on 29 March 2006, which refused to grant a protection visa to the applicants, who are a husband and wife. 

2. The applicants arrived in Australia in January 2006 and lodged their applications for protection visas on 17 February 2006.  No agent or other person was disclosed as helping them.  The form contained a brief explanation for seeking protection in Australia against return to India.  The applicant husband, who made the only substantive claims, indicated that he was a Hindu living in Ahmedabad in Gujarat State.  He said:  

   40Why did you leave that country? 

   I had construction business.  I was forced to pay bribe to the authority couple of few times and was also asked to pay the things.  I protested because I believe that paying in such way is unlawful.  It was impossible to run business without paying illegal money.  But I had to have some thing to survive on.  I have a family to look after.  Moreover, I had threats if I did not pay. 

   41What do you fear may happen to you if you go back to that country? 

   I will have to get involved with business again.  Again there will be demand of money.  Again there will be threat if I refuse to pay illegally. 

   42Who do you think may harm/mistreat you if you go back? 

   Police, thugs, administration with whom most of my business deals with. 

   43Why do you think this will happen to you if you go back? 

   This is what India is about.  There are wide spread of bribery every where.  I do not have a way to escape. 

   44Do you think the authorities of that country can and will protect you if you go back?  If not, why not? 

   No.  The authority itself is corrupt. 

3. No supporting information nor more details were provided. 

4. In the delegate’s statement of reasons, he accepted that the applicant might have become a victim of “corrupt government officials and their enforcers”, but said:  

   … I do not consider the harm he experienced as arising on account of a Convention reason.  The applicant was victimised because he was involved in a business where corrupt government officials are highly involved.  He was not being forced to pay money with a threat of harm because of his race, religion, nationality, political opinion or membership of a particular social group.  Money was extorted from him because he was perceived as a moneyed person.  He was not being targeted because of a Convention reason. 

5. The applicants’ application for review was lodged on their behalf by a solicitor, Mr Jayawardena, and no further documentary material was submitted.  The applicant husband attended a hearing on 3 July 2006 with Mr Jayawardena.  He presented his passport which was copied by the Tribunal, and subsequently the tapes of the hearing were posted to Mr Jayawardena. 

6. The applicant husband’s claims made to the Tribunal sought to identify a Convention reason for his fears by reference to his religion and a political association.  The Tribunal described his evidence: 

   In his oral evidence to the Tribunal the applicant said he had the authority to speak for his wife.  The Tribunal asked him what he feared were he to return to India.  He said he was afraid because he is a Hindu and he is afraid of “the Muslims”.  The Tribunal asked if he had had trouble from Muslims.  He said that he had a hardware business in a Muslim area and for the last 12 years he was a member of the BJP helping Hindu people and that due to that reason, Muslim people burnt his shop at the time of the Babri riots in 1992.  He said he tried to start the shop again but was not able.  The Tribunal asked him what income he had had since 1992.  He said he started a building materials shop.  He said it closed in 1996.  He was asked what he had lived on since 1996.  He said he was living in a Muslim area and his father was helping him with a job as being a supervisor in a construction company.  He was asked if he had any problems.  He said that when he was working, the owner was a Muslim and he fired the applicant because he was a Hindu.  He said this was in mid 1997.  The Tribunal asked what work he had after 1997.  He said he had no work and lived from money borrowed from friends and relatives.  The Tribunal asked how he had afforded the fares to Australia.  He said that friends and relatives helped him.  The Tribunal asked him if he had travelled overseas and he said he went to London in 2004 “to save my life”.  He was asked why he returned.  He said this was because his mother was suffering from paralysis.  He was asked if he suffered any harm on his return.  He said that after one month he faced problems again as he was a BJP supporter and the Muslim League “hates me a lot”. 

   The Tribunal asked him if he held a position in the BJP and he said he was just a branch member in his town in Gujarat and had “participated” in elections. 

7. The Tribunal also questioned the applicant husband concerning his travel to Singapore, Thailand and Malaysia in late 2003 and early 2004, and a visit to the United Kingdom from September 2004 to January 2005.  The Tribunal put to him concerns it had about his claims, and said at the end of the hearing:  

   The Tribunal said it would be prepared to telephone his wife to gain from her corroborative evidence to what he had said to the Tribunal, but he said that his wife was living with his sister and was uncontactable.  The Tribunal asked whether his sister did not have a phone, and he said it was not really his sister and he did not know the number. 

8. Under the heading “Findings and Reasons”, the Tribunal identified the claims the applicant husband had made at the hearing to fear being harassed and threatened continually by Muslims because of his Hindu religion and because of his membership of the BJP political party. 

   
   

   The Tribunal concluded: 

   The Tribunal notes that the applicant in his evidence to the Tribunal agreed that the Muslims in Gujarat constitute approximately 10% of the population while Hindus constitute almost 90% of the population.  The applicant also claims to be a member of the BJP which he agreed at the hearing has been the ruling party in Gujarat.  In the light of this, the Tribunal finds as implausible, and does not accept that the applicant has been harassed by Muslims in the manner he claims and that he has been intimidated into not reporting this alleged harassment to the police.  The Tribunal does not accept it would not be possible and reasonable for him to relocate from his local area which he alleges is dominated by Muslims, so as to live safely in an area of Gujarat where Hindus predominate and where he could access the protection of the police through the BJP government given he claims to be a member of the BJP. 

9. The Tribunal also commented that it found it implausible that the applicant husband had not been able to find employment in the last decade, and that he had been unable to find out about the United Kingdom’s refugee processing system, as he had claimed. 

10. The Tribunal concluded with the comment: 

    The Tribunal is strengthened in its belief that the applicant has fabricated these claims by the applicant’s evasiveness in hindering the Tribunal’s wish to have corroborative evidence from his wife via the phone during the hearing.  The Tribunal finds as implausible, and does not accept, that the applicant had no way of contacting his wife and that he did not know the phone number of the people with whom he claims she was staying. 

11. The Tribunal said that it was not satisfied that the applicant husband had a well‑founded fear of persecution within the meaning of the Convention.  It noted that the applicant wife had never made any specific Convention claims in relation to her own situation. 

12. I have considered the procedures and reasoning of the Tribunal, and can see no arguable ground of jurisdictional error affecting its decision. 

13. The application to this Court was given a first court date on 20 September 2006.  On that occasion Mr Jayawardena appeared on behalf of the applicants, but told the Court that he “shall not be responsible for any future proceedings at all”.  He did, however, undertake to bring the Court’s orders to the attention of the applicants.  Those orders gave the applicants leave to file an amended application and any further evidence by 3 November 2006, after receiving a bundle of relevant documents and a referral for free advice under the legal advice scheme.  The orders made clear to the applicants that the application might be dismissed at today’s listing if the Court were not satisfied that it had raised an arguable case for the relief claimed. 

14. Mr Jayawardena on 22 September 2006 forwarded to the Court a copy of his letter to the applicants which enclosed the orders and drew attention to their effect.  Clearly, the orders came to their attention, since the applicant husband has appeared today to represent himself and his wife.  He has been given a referral for advice under the scheme, but has not filed any further documents. 

15. The original application to the Court, which appears to have been prepared with the assistance of Mr Jayawardena who witnessed the affidavit in support, contains two grounds: 

    1.That the Tribunal exceeded its jurisdiction when it said – “it would be prepared to telephone his wife to gain from her corroborative evidence to what he had said to Tribunal and asked whether his sister did not have a phone, and he said it was not really the sister and he did not know number.” 

    2.The Tribunal erred in law due its finding – “the Tribunal found the Applicant not to be a credible witness and find his claims to be implausible and does not accept them for the following reasons: 

    The Tribunal does not accept it would not be and reasonable for him to relocate from his local area which he alleges is dominated by Muslims so as to live safely in an area of Gujarat.” 

16. The first ground does not provide any particulars identifying the nature of the alleged excess of jurisdiction arising from the Tribunal’s discussion with the applicant about taking telephone evidence from the applicant wife.  In the absence of particulars, I am unable to give this contention any arguable substance.  

17. It was clearly within the jurisdictional competence of the Tribunal to consider and discuss with the applicant husband whether the applicant wife could provide corroborative evidence. The Tribunal’s observation that the applicant husband’s responses showed “evasiveness” does not reveal any arguable jurisdictional error. In particular, considering the Tribunal’s obligations under s.424A(1), if the Tribunal’s observation indicated a minor part of the Tribunal’s reasons for affirming the delegate’s decision, it drew upon information given by the applicant for the purpose of his application, being his responses to its questioning at the hearing. Section 424A(3)(b) applied to that information.

    
    

    The Tribunal’s assessment of the husband’s responses was not itself a matter requiring a s.424A(1) notice.

18. In relation to the second ground in the application, I am unable to detect any arguable error whether jurisdictional or otherwise, arising by reason of the Tribunal’s finding that it would be reasonable for the applicants to relocate from an area dominated by Muslims. 

19. The applicant husband today maintained the truth of his refugee claims, and that he would face problems again if he returned to India.  However, he had no argument to reveal jurisdictional error affecting the Tribunal’s decision. 

20. For the above reasons, I am not satisfied that the application has raised an arguable case for the relief claimed, and in all the circumstances I consider it is 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 (20) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  4 December 2006