SZJNA v Minister for Immigration - [2007] FMCA 69

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJNA v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 69

MIGRATION – RRT decision – Indian fearing persecution by Naxalites – Tribunal found no real chance of harm – 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(3)(b), 476

Applicant:

SZJNA

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2948 of 2006

Judgment of:

Smith FM

Hearing date:

17 January 2007

Delivered at:

Sydney

Delivered on:

17 January 2007

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms H Blackman

Solicitors for the Respondents:

Blake Dawson Waldron

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

SYG2948 of 2006

SZJNA

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 12 October 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) (“the Migration Act”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 31 August 2006 and handed down on 21 September 2006. The Tribunal affirmed a decision of a delegate made on 10 May 2006, refusing to grant the applicant a protection visa.
The application was returnable before me at a first court date on 14 November 2006. The applicant attended and was assisted by a Hindi interpreter. He requested a Telugu interpreter, but this has not been able to be provided today. However, I consider that sufficient communication has been achieved through a Hindi interpreter.
At the first court date, the nature of the proceedings was explained to the applicant by me and in an information sheet, and the applicant was given the opportunity to file an amended application and evidence by 10 January 2007 after receiving a referral for legal advice and a bundle of relevant documents. The applicant was warned at the first court date and in the written orders that I might dismiss his case today if I were not satisfied that it raised an arguable case for relief claimed.
The applicant was referred to an experienced barrister, but has not filed any amended application nor other documents. I shall consider the grounds of his application below.
The applicant arrived in Australia in March 2006, and on 20 April 2006 filed an application for a protection visa. No assistance with the application was shown, and the applicant’s history upon which he claimed protection in Australia against return to his country of nationality, India, was set out in a typed statement. No corroborative support for this history was ever provided to the Department nor to the Tribunal.
In his statement, he referred to being an active member of Hindu political movements and parties, being the RSS, the ABVP and the BJP. He claimed that in the course of his political activities he received threats from the Naxalite People’s War Group Party. Information before the Tribunal indicated that this was regarded by Indian authorities as a criminal group due to the violence of its methods. The applicant claimed that he had received threats, that friends had been killed, and that on one occasion he had been beaten by them. He claimed that once in 2001 or 2002 “Naxalites came to my house, luckily I was not at home at that time so they warned my wife that they were searching for me to kill me”. He claimed that although he complained to police he did not trust that they would be able to protect him.
He maintained and explained his history to the Tribunal when he attended a hearing on 15 August 2006, and the Tribunal set out the evidence he gave in its reasons. It also set out extensive independent information about the activities of the Naxalites and the reactions of the Indian authorities.
The Tribunal’s reasoning appears shortly under the heading “Findings and Reasons”:
Essentially, the applicant claims that he fears harm from the Naxalites in India since about 1985 because of his political activities over the years. He claims that the Naxalites intend to kill him. He also claims that the police in India are unable to protect him. In assessing the applicant’s Convention claims, I am required to determine whether he has a well‑founded fear, and if what he fears amounts to persecution for a Convention reason.
The applicant in his evidence stated that he had been assaulted on one occasion when he was on his way to college. He believed that the group who attacked him were members of the Naxalites. The attack occurred in the 1980s and since then the applicant has not been the victim of any attacks whatsoever. He claims that he has been constantly threatened by the Naxalites, that they intend to kill him and these threats have taken place over a period of over 15 years. The country information cited above indicates that the Naxalites can be extremely dangerous and have on many occasions been responsible for the killing of innocent victims. The applicant claims to fear serious harm from the Naxalites over a period of about 20 years, yet apart from one incident was not the victim of any physical harm for that period.
The Tribunal finds that, based on the applicant’s own description of the Naxalites and also some of the country information cited above, had this group any reason for wishing to harm the applicant, they would have done so during the period referred to by the applicant in his application and evidence. The Tribunal does not accept that the Naxalites intended to seriously harm the applicant as claimed.
The Tribunal notes that upon examination of the applicant’s passport during his evidence before the Tribunal that his passport was issued on 5 December 2003. The applicant did not depart India until 10 March 2006. This delay in leaving India does not indicate to the Tribunal even a subjective fear of harm and is not consistent with the applicant’s claims of being constantly threatened with death by the Naxalites.
In light of the above evidence, the Tribunal finds that there is not a real chance that the applicant will be persecuted for any Convention reason, now or in the reasonably foreseeable future, should he return to India.
Accordingly, I am not satisfied that the applicant has a well‑founded fear of persecution for a Convention reason if he returns to India.
I consider that the Tribunal’s reasoning emerges clearly. It has compared the applicant’s claimed history with the independent information, and concluded that it was inconsistent with the truth of the applicant’s claims that he had been threatened by Naxalites with death for such a long period without any serious harm being actually inflicted. The Tribunal has also taken into account the applicant’s delay in leaving India, and has concluded that there was not a real chance that the applicant would be persecuted if he returned.
I have considered the Tribunal’s reasoning. Although other Tribunals might not have followed the same reasoning, I consider it was rational and open to the Tribunal, and I cannot see any arguable ground of jurisdictional error arising from its reasoning.
Nor can I see any arguable ground of jurisdictional error in relation to the procedures followed by the Tribunal. In particular, the information relied upon by the Tribunal was given by the applicant to the Tribunal at the hearing, including his movements taken from a passport which it examined, or was general information coming within s.424A(3)(b) of the Migration Act.
The applicant relies on the following grounds in his application:
1.The Refugee Review Tribunal has failed to see that the applicant satisfies the criteria for Article 1A(2) of the Convention.
2.The applicant satisfies the four key elements to the Convention definition as detailed in pages 2 to 4 of the Tribunal’s decision.
3.The Tribunal failed to see that the applicant had faced lot of difficulties and if at all the Tribunal had some doubts, benefit of doubt should have been given to the applicant.
4.The reasons given by the Tribunal for the rejection are vague. The Tribunal, which is bound to help the applicant as far as possible had simply stated that the claims are far‑fetched.
5.The Tribunal has not applied its mind in the manner as required.
6.The Tribunal has relied on some so called ‘independent information’, but has failed to consider the real facts. Page number 7 to 11 of the decision has irrelevant third party sourced materials and the Tribunal failed judiciously and factually.
7.The Tribunal erred in stating that the delay in departure does not indicate subjective fear. The Tribunal failed to see that the applicant tried to be in his country as far as possible, but had to fled at a later stage.
Criticisms of the Tribunal’s reasoning in these grounds are not particularised, and I have difficulty seeing any substance in them. Moreover, I consider that they amount to no more than arguments going to the merits of the Tribunal’s conclusion rejecting the credibility of the applicant’s claims.
I consider the Tribunal has clearly addressed those claims, and I can see no arguable error in how it has used independent information.
I do not think it necessary for me to go through each of the grounds to explain further why I do not consider that the application has raised an arguable case for the relief claimed. I consider that 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 fifteen (15) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 2 February 2007