SZJLC v Minister for Immigration - [2006] FMCA 1940

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJLC v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1940

MIGRATION – RRT decision – Applicant claimed persecution in India for religion and political opinions – 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), s.476

SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63

Applicant:

SZJLC

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2773 of 2006

Judgment of:

Smith FM

Hearing date:

20 December 2006

Delivered at:

Sydney

Delivered on:

20 December 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms S Hanstein

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 $2,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2773 of 2006

SZJLC

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 27 September 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 1958 (Cth) in respect of a decision of the Refuge Review Tribunal (“the Tribunal”) dated 15 August 2006 and handed down on 5 September 2006. The Tribunal affirmed the decision of a delegate made on 5 May 2006, which refused to grant a protection visa to the applicant.
The application was returnable before me at a first court date on 25 October 2006, when the applicant attended. I made orders allowing him to file an amended application and any further affidavits by 8 December 2006, after receiving a referral for free legal advice and a bundle of relevant documents. My orders warned the applicant that his application might be dismissed today if I were not satisfied that it raised an arguable case for the relief claimed.
The applicant has filed an amended application to which I shall refer below, and has received legal advice. He has also received a written submission from the Minister’s lawyers explaining their argument in support of the dismissal of the application today.
The applicant arrived in Australia in December 2005 and filed an application for a protection visa on 31 January 2006. In his visa application he explained by way of an unsworn statement why he claimed protection against return to India. He said he was a Muslim and had married a woman who converted from being Hindu into Islam at the time of their marriage. He also claimed that his family was an active member of the Congress Party, but his wife’s family were active members of a Hindu Fundamentalist Party, Shiva Sena. He claimed that Shiva Sena, BJP and RSS people created problems against him, and caused police to arrest and mistreat him and to file false charges against him. It is unnecessary for me to give the details of these aspects of his claims, since he did not press them when he attended a hearing before the Tribunal.
His visa application indicated that for 10 years from 1994 the applicant had left his family in Mumbai while he worked in Saudi Arabia. He claimed that when he returned to Mumbai “BJP party people still harassed me”, and that he was attacked and admitted to hospital. That aspect of his original claims also does not seem to have been pressed at the hearing.
No supporting evidence nor details of most of his claims were provided to the Department, or on appeal to the Tribunal.
The applicant attended a hearing held by the Tribunal on 10 August 2006, and showed the Tribunal the contents of his passport.
In its statement of reasons, the Tribunal recounted the applicant’s evidence given at the hearing. The applicant claimed that, following his marriage, he and his wife had been repeatedly beaten by members of his wife’s family, and that his wife was subject to beatings even while the applicant was in Saudi Arabia. The Tribunal said: “he stated that a brother of his wife had friends who were supporters of the opposition party, the BJP and the Shiva Sena and that they also were involved in beating him and his wife”. He referred to the fact that he and his wife were supporters of the Congress Party. He said that he had supported them by participating in walks or demonstrations in the street, but had ceased to assist the Congress Party after he had married in 1989.
Towards the end of its description of the hearing, the Tribunal recorded:
The Tribunal asked the Applicant whether he had experienced any harm in the past, other than the beatings by friends and relatives of the wife’s family. The Applicant stated, no, he had been beaten but he had no other problems.
Further discussion as to the extent that the applicant maintained the claims originally made to the Department also seems to have occurred, since the Tribunal said at the start of its “Findings and Reasons”:
The Applicant claims that he is a Muslim and a supporter of the Congress Party and that when he married in 1989 and his wife converted to Islam he and his wife were assaulted and threatened by members of his wife’s family and friends of his wife’s family who were associated with Shiva Sena and BJP. Although the Applicant also claimed in his protection visa application that he was detained by the police many times at the hearing the Applicant stated that the only harm he had experienced in the past was that from relatives and associates of his wife’s family who had subjected he and his wife to beatings. He claims that he fears a recommencement of this harm should he return to India.
The Tribunal then recorded a finding that it was not satisfied “that the Applicant is in genuine fear of persecution nor that there is a real chance that he will suffer persecution on return to India”. The Tribunal referred to the claims which the applicant had maintained to the Tribunal, and to his travel over the previous decade. It said that it did not accept that he had suffered harm in India by reason of his religion or political opinion. The significant reason for this conclusion was that the Tribunal found the applicant to be “most unconvincing in his oral evidence”. It explained the difficulties it had in accepting his evidence.
Consequent upon that finding, the Tribunal did not accept that the applicant had been targeted by friends and relatives of his wife’s family, and did not accept that he genuinely feared persecution if he returned to India. It was therefore not satisfied that there existed a real chance that he would be persecuted upon return to India for any Convention reason.
I have considered the Tribunal’s procedures and reasoning, and am unable to identify any arguable jurisdictional error affecting its decision.
The application originally filed in this Court follows a precedent making general allegations of error of law, denial of procedural fairness, and failure to consider the applicant’s claims and evidence. However, no particulars of any argument addressing these contentions are provided, and I am unable to identify any argument which might assist the applicant.
In relation to the general allegation of denial of procedure fairness, I have considered the recent decision of the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 (“SZBEL”). In the present case, the applicant could have been in no doubt that the genuineness of his claims to fear harm in India was in issue. The delegate had referred to the applicant’s travel history as being: “inconsistent with the actions of a person who genuinely fears persecution” and, according to the Tribunal’s description of the hearing, this was also put to the applicant. A transcript has not been presented to the Court to show any error in the Tribunal’s description, and I do not consider that the applicant has raised any arguable basis for alleging procedural fairness within SZBEL.
The applicant’s amended application also has been taken from a precedent derived from a different case. It has no application to the applicant’s case since its arguments, that there was an absence of good faith and other errors, address a case where the Tribunal preferred independent country information and made findings about relocation. Neither of these elements forms a part of the present Tribunal’s reasons for affirming the delegate’s decision. I can find nothing reasonably arguable raised by this document.
The applicant today had no argument to show jurisdictional error by the Tribunal. He submitted that the Tribunal had not listened to him properly when explaining the problems he had with his brothers‑in‑law and their associates with the BJP and RSS. However, in my opinion, the Tribunal plainly did address those parts of his claims, and the applicant’s arguments only addressed the merits of the Tribunal’s decision.
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 eighteen (18) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 12 January 2007