SZJIK v Minister for Immigration - [2006] FMCA 1943

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJIK & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1943

MIGRATION – RRT Decision – Indians claiming political persecution – disbelieved by Tribunal – 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.420(1), 424A, 425, 476

Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63
WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225

First Applicant:

SZJIK

Second Applicant:

SZJIL

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2547 of 2006

Judgment of:

Smith FM

Hearing date:

19 December 2006

Delivered at:

Sydney

Delivered on:

19 December 2006

REPRESENTATION

Counsel for the Applicants:

Applicants in person

Counsel for the First Respondent:

Ms K Rose

Solicitors for the Respondents:

DLA Phillips Fox

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2547 of 2006

SZJIK

First Applicant

SZJIL

Second 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 11 September 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”). The application concerns a decision of the Refugee Review Tribunal (“the Tribunal”) dated 25 July 2006 and handed down on 15 August 2006. The Tribunal affirmed the decision of a delegate made on 28 March 2006 refusing to grant a protection visa to the applicants.
The application was returnable at a first court date before me on 17 October 2006. The applicants attended in person and were assisted by a Malayalam interpreter. The nature of the Court’s jurisdiction was explained by me and in an information sheet, and the applicants were given an opportunity to take free legal advice after receiving a bundle of relevant documents. The applicants were warned that the application might be dismissed at today’s listing if I were not satisfied that it raised an arguable case for the relief claim.
The applicants have subsequently filed an amended application and an outline of submissions, to which I shall refer below. They both attended today, and the applicant husband spoke on behalf of his wife. They have had the assistance of a Malayalam interpreter.
The applicants are a husband and wife who arrived in Australia in February 2006. Each of them made an application for a protection visa on 17 March 2006, but the wife relied upon her husband’s claims and I shall refer to him as “the applicant”. No agent was disclosed as assisting them.
The applicant’s application form claimed that he had been an active member of the Indian Union Muslim League (“IUML”) in Kerala State until 1992. In that year he married his wife and left the IUML to join the National Development Front (“NDF”). He claimed that this caused hostilities from his former party, as well as from Hindu nationalist parties such as BJP and RSS.
The applicant claimed that his reasons for leaving India in 2004 arose from an event on 6 December 2001, which was the anniversary of the destruction of the Babri Masjid. He said that his party “declared a “Harthal” (which means no shops will be allowed to open)”, and that this resulted in a clash with BJP members in which a BJP worker was killed. The applicant claimed that although he was not involved in the murder, and was not named by the police, BJP people began to pursue him because he was “the local committee convenor”. The applicant claimed that relatives of the murdered man as well as the Communist Party of India also started to trouble him. He claimed his shop was looted, his house was destroyed and his children were threatened. He tried to avoid trouble by moving away from his own house, including to Mumbai, but members of opposing parties detected his presence in Mumbai, and this led to him to leave the country. He initially lived in South Africa, and then came to Australia for asylum.
The applicants never presented any supporting evidence of their claims, either to the Department or to the Tribunal. They attended a hearing conducted by the Tribunal on 6 July 2006. According to the Tribunal:
It was put to him that the independent sources consulted by the Tribunal suggest that [the applicant’s area] was not affected by violence in 2001. He said he would try to provide newspaper clippings to show what had happened. The applicant was told that any newspaper clippings should be translated in to English and submitted by 17 July 2006. The applicant agreed.
It was put to him that the independent sources consulted do not contain any information about anyone being killed as a result of the clashes in Kerala in December 2001. He said he would try to supply newspaper reports. He was asked to submit this additional evidence by Monday, 17 July 2006.
The Tribunal also put other concerns to the applicant.
In its statement of reasons, which was handed down on 15 August 2006, the Tribunal noted “no further material or submissions were received from the applicant at the time of making the decision”.
Under the heading “Findings and Reasons” and at the commencement of its discussion, the Tribunal clearly presented the conclusions which supported its principal reason for affirming the delegate’s decision:
The Tribunal accepts that the applicant was a member of NDF. The Tribunal also accepts that December 2001 witnessed communal clashes in Kerala on the occasion of the anniversary of the demolition of Babri Masjid. The Tribunal, however, does not accept that these clashes occurred in the applicant’s area or that anyone was killed as a result of these clashes.
The Tribunal referred to the absence of evidence of violence in the applicant’s area, as distinct from other areas in Kerala, in independent sources consulted by its researchers. It said:
The absence of this information from sources that the Tribunal considers independent and reliable, as well as the absence of violence in [the applicant’s area], leads the Tribunal to find that the applicant was not involved in any communal clashes in [that area] on 6 December 2001 and did not witness and was not blamed for murder by Hindu nationalists or CPI(M) members.
The Tribunal built upon that conclusion to conclude:
For all the above reasons, the Tribunal does not accept that the applicant was genuinely wanted or pursued by Hindu extremists, including BJP workers, or CPI(M) members or anyone else for the reasons he has provided. The Tribunal does not accept that he approached the police and that they took no action because CPI(M) was strong in his locality. The Tribunal does not accept that the applicant has suffered harm amounting to persecution for a Convention reason. The applicant has been away from Kerala for some four years and has had no political affiliation or activities since 2002. There was no evidence in the independent sources consulted by the Tribunal to suggest that members and activists of NDF are being persecuted by BJP, RSS or any other Hindu extremist group in Kerala. The Tribunal is satisfied that if the applicant were to return to Kerala and continue his political activities at the level that he has in the past his chance of facing persecution for the reason of his political, religion or any other Convention reason in Kerala is remote.
The Tribunal also made some subordinate and alternative findings on the assumption that some parts of the applicant’s account were true. It also addressed questions of relocation. However, in my opinion, its decision to affirm the delegate’s decision was essentially based upon its rejection of the truth of the applicant’s central claims.
The applicants’ original application contains as its grounds:
1.The Tribunal has denied the procedural fairness by ruling out my claim as fabricated without proper investigation.
2.The Tribunal has made unfavourable decision quickly. When I received the decision I was really shocked and totally upset. I feel Tribunal did not consider the real facts and incidents occurred even today in my country.
3.So I would like to request you to reconsider my application for protection visa. May please by [illegible] with positive approach sympathetically.
The allegation in the first paragraph that there was a denial of procedural fairness is not given any particulars, and in my opinion does not have an arguable basis. In that respect, I have considered the Tribunal’s obligations under s.425 as recently elucidated in the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63. However, on the material before the Court, the applicant was clearly warned at the hearing, if not earlier, that the veracity of his claims was in issue, and in particular his claim that people were pursuing him for a murder which occurred in his area on 6 December 2001.
On authorities binding in this Court, it is not reasonably arguable that the Tribunal was under any obligation to itself conduct further investigations (seeMinister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43], also Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187], WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [73], Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]).
I do not consider that it is reasonably arguable that the Tribunal acted unfairly by not allowing the applicant more time to present further material before it delivered its decision. I can see no arguable jurisdictional error arising from the complaint that the Tribunal made its decision “quickly”, particularly since s.420(1) of the Migration Act requires the Tribunal to “provide a mechanism of review that is … quick”.
The second and third paragraphs of the applicants’ application do not raise any arguable jurisdictional error. The Tribunal considered and reached a decision on all the claims made by the applicant.
The applicants’ amended application is a compilation from precedents seen previously by the Court which, with respect to its author, are garbled and difficult to understand. There would be no purpose in my repeating its contents in this judgment.
I do not understand paragraph 1 at all.
Paragraph 2 alleges a breach of the rules of natural justice without any particulars, and I have addressed that issue above.
Paragraph 4 appears to present the merits of the applicant’s refugee claim for determination by the Court, but that is not its function in a proceeding such as this.
Paragraph 5 essentially makes an allegation that the Tribunal did not act in good faith, but presents no particulars of an argument to give any substance to that claim. I can see no arguable substance for it in any of the material before me.
The applicants’ written submission is of a similar character. It contains a number of allegations including breach of s.424A, actual and apprehended bias, failure to consider claims, illogicality, breach of procedural fairness based on the Muin and Lie cases, and other less clear arguments. However, none of the jurisdictional errors asserted in the written submission are explained, nor in my opinion are they supported by any evidence which could give them arguable substance.
The applicant husband today was not able to present any argument to me to show jurisdictional error, other than to invite me to disagree with the Tribunal’s finding that the critical murder never happened. However, as I have explained to the applicants, it was the task of the Tribunal and not of the Court to make that factual determination.
The applicant also sought more time to obtain documents from India to support his refugee claims. However, this could not win him the present case, even if I were disposed to grant more time, which I am not.
For the above reasons, I am not satisfied that the application has raised an arguable case for the relief claimed, and 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‑six (26) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 15 January 2007