SZJJJ v Minister for Immigration - [2007] FMCA 467

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJJJ & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 467

MIGRATION – RRT decision – Indian applicant claiming persecution for political activities – not believed by Tribunal – no arguable case raised – application dismissed at show-cause hearing.

Migration Act 1958 (Cth), s.476
Federal Magistrates Court Rules 2001 (Cth), r44.12(1)(a)

First Applicant:

SZJJJ

Second Applicant:

SZJJK

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2632 of 2006

Judgment of:

Smith FM

Hearing date:

20 March 2007

Delivered at:

Sydney

Delivered on:

20 March 2007

REPRESENTATION

Counsel for the Applicants:

First Applicant in Person

Counsel for the First Respondent:

Ms S Hanstein

Solicitors for the Respondents:

Australian Government Solicitors

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

SYG 2632 of 2006

SZJJJ

First Applicant

SZJJK

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 18 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) in respect of a decision of the Refugee Review Tribunal dated 31 July 2006 and handed down on

22 August 2006. The Tribunal affirmed a decision of the delegate taken on 12 April 2006 refusing to grant protection visas to the applicants, a husband and wife. Only the husband made refugee claims, and I shall refer to him as “the applicant”.
The application was returnable at a first Court date before me on

18 October 2006. The applicants were represented on that day by Mr Jayawardena, a solicitor. I made orders allowing the applicants an opportunity to amend their application and file evidence, and listed the matter for a show cause hearing on 19 December 2006.
On that date the applicant husband appeared in person. At some point previously Mr Jayawardena had been refused a renewal of his practicing certificate. The applicant sought an opportunity to get further legal advice. I gave him that opportunity, and adjourned the show cause hearing to today. The applicant was warned that his application might be dismissed today if I were not satisfied that it raised an arguable case for the relief claimed. My orders gave the applicant an opportunity to request the Court for a referral to a lawyer under the free legal advice scheme, but no request was made to the Registry.
The applicant filed an amended application on 26 February 2007, and has today identified a document faxed to the Minister's solicitors on 15 March 2007 as a written submission he wishes the Court to read. Both the amended application and the submission are in a form and content very familiar to me in matters where Mr Jayawardena has been involved. I consider that he is the probable author of both, and note that the submission has his facsimile imprint on it. However, the applicant today denied any memory of the name of the person who has been helping him in recent times.
The applicant arrived in Australia in January 2006, and an application for a protection visa was lodged by Mr Jayawardena on 27 January 2006. The applicant made claims for protection in Australia against return to his country of nationality, India. The application attached a brief statement, in which the applicant claimed to have been a worker in his state for BJP members of parliament in his area, and to have assisted in campaigning for the BJP for elections held in October 2005. The applicant claimed to have been subject to attack in his house by Congress Party members or supporters. He said that when he complained to the police “no one listened to my complaint and instead they beat me more by detaining me in Police Station’s lock up for 3-4 days”. He said:
There in India the risk on my life was very high and no government would protect me or was worried about me, even though I had provided a lot of services to the BJP. I got processed the Visa application for this country by staying at my relative's place there in India.
A delegate refused the application on the ground that the applicant provided no documentation, and said that it was strange for the MPs for whom he worked not to have been harmed and not to have assisted the applicant in any way despite being government representatives and people with power. The delegate also thought it was open to the applicant to relocate elsewhere in India.
The applicant attended a hearing held by the Tribunal on 26 July 2006 accompanied by Mr Jayawardena. He presented to the Tribunal a document which certified that he “has been the active member of Bharatiya Janata Party (BJP) since three years. He is very hardworking and he has a good conduct. I wish him all the best for his future.” He also showed the Tribunal his passport showing a previous visit to the United Kingdom in July 2005, and a visa to enter that country which was still on foot. In its statement of reasons, the Tribunal described its questioning of the applicant, in which it put to him the points that had been made by the delegate.
Under the heading "Findings and Reasons" the Tribunal gave short reasons for finding “his evidence unconvincing” and that he had “fabricated his claims”.
The Tribunal said it was implausible, and that it did not accept, that a person with the close associations he claimed to have had with the BJP could not ensure protection from his political opponents, given that the BJP was in government in his state. The Tribunal pointed to the failure of the applicant to apply for refugee protection when he visited the United Kingdom, and said that it did not accept his claim that he had been attacked and forced to go to hospital and that he had been detained and beaten by police.
The Tribunal also did not accept that if he moved to another part of India he would be sought by his Congress Party opponents wherever he might locate.
The Tribunal noted that the applicant had not raised a claim based on caste and made a clear finding: “that there is not a real chance the applicant nor his wife might face persecution in the foreseeable future for any Convention reasons”.
The applicant's application to the Court contains unparticularised allegations of excess of jurisdiction, misconception of the applicant's claims, and error in law. I can see no substance in those assertions.
His grounds set out in the amended application are:
Ground One
The Tribunal failed to evaluate the Applicant’s level of involvement as a ‘front-runner’ of the BJP as per both the oral and written evidence given by the Applicant and negated the probated value of the Applicant’s claims, because of the findings made by the Tribunal:-
“In the light of his relatively minor role in the BJP, in that he fulfilled functions such as handing out leaflets at elections, the Tribunal finds as implausible, and does not accept, that were he to relocate to another part of India, he would be sought out by his congress party opponents wherever he might relocate”. (CB page 116, para 03)
The Applicant submit that the Tribunal’s effort to lower the Applicant’s evidence and failing to do a proper review of the Applicant’s claims is a clear breach of the Tribunal’s obligations under s414 of the Migration Act 1958 and hence a jurisdictional error.
Ground Two
That the Tribunal failed to carry out the mandatory statutory function of assessing whether the Applicant would face a ‘real chance’ of serious harm if he was asked to return to India because of the following finding:
“The Tribunal is not satisfied on the evidence before it, the Applicants have a well founded fear of persecution within the meaning of the Convention” (CB page 116, para 06)
The applicant submit that because of the Tribunal’s departure from the mandatory assessment of the ‘real chance’ test in terms of sec. 91R of the Migration Act 1958, the Tribunal has committed a further jurisdictional error in its decision to refuse a protection visa to the Applicants.
These are repeated in the written submission with legal arguments that appear to have little relevance to the present case.
The argument in Ground One that the Tribunal failed to evaluate the applicant's claims has, in my opinion, no arguable substance, nor is there any evidence before me giving substance to the suggestion of bias.
The argument in Ground Two, that the Tribunal did not properly assess the applicant's history based on the real chance test, has no merit at all in my opinion. Plainly, it did identify and address the correct test.
In my opinion the application does not raise an arguable case for the relief claimed, and it is appropriate for me to dismiss it under r.44.12(1)(a).

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 4 April 2007