SZJNW v Minister for Immigration

[2007] FMCA 68

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJNW v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 68

MIGRATION – RRT decision – Indian claiming fear of persecution as imputed Naxalite – 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.424A, 476

Applicant: SZJNW

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG3039 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 Dejean

Solicitors for the Respondents: Australian Government Solicitor

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3039 of 2006

SZJNW

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 19 October 2006, in which the applicant seeks 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 (“the Tribunal”) dated 28 August 2006 and handed down on 19 September 2006.  The Tribunal affirmed a decision of a delegate made on 11 April 2006, refusing to grant a protection visa to the applicant. 

2. The application was returnable before me at a first court date on 7 November 2006.  The applicant attended and indicated that he spoke English and did not need the assistance of an interpreter.  The nature of the proceedings was explained to him in an information sheet and by me, and I gave him an opportunity to file an amended application with any evidence by 21 December 2006, after receiving a referral for free legal advice and a bundle of relevant documents.  The applicant was warned that his application might be dismissed today if it did not raise an arguable case for the relief claimed. 

3. The applicant was referred for advice, but has not filed any amended application or written submission.  I shall consider the grounds of his application below. 

4. The applicant came to Australia in March 2003 on a student visa to pursue studies.  However, it seems that his studies were unsuccessful, and on 15 March 2006 he filed an application for a protection visa.  His application does not disclose any assistance in its making.  It attached an unsworn statement giving a history upon which he claimed protection in Australia against return to his country of nationality, India. 

5. The applicant recounted an incident in 2002 in which, by accident, he joined a group of people in a van who turned out to be Maoist Naxalites wanted by the police.  He claimed that they refused to allow him to leave them, but held him in their custody and threatened to kill him.  He claimed that he escaped through a window, when the location of the Naxalites was raided by police.  He claimed that subsequently he went into hiding, both from the Naxalites, and from the police who suspected him of being a Naxalite or a person who could give information about them.  He then came to Australia. 

6. His original statement did not explain what had happened in the subsequent three years while he was in Australia, nor why he delayed claiming protection during that period.  He provided neither the Department nor the Tribunal, with any corroborative evidence of his fears of persecution. 

7. He attended a hearing by the Tribunal on 1 August 2006, where he presented his passport, and was questioned about his travel.  The Tribunal also sent him two written requests for comments on information which might be a part of the reasons of the Tribunal for affirming the delegate’s decision, and he commented in writing upon that information. 

8. In its statement of reasons, the Tribunal gives a full description of the applicant’s claims, and how he was questioned about them, both orally and through the s.424A letters.

9. Under the heading “Findings and Reasons”, the Tribunal expressed its key finding: 

   For the reasons set out below, the Tribunal was not satisfied the present applicant was a witness of truth.  In fact the Tribunal was sufficiently satisfied the present applicant was not a witness of truth that to the extent that it has not expressly done so, it has decided to reject all his material claims and evidence to invoke refugee protection obligations in Australia as false. 

10. The Tribunal then explained a series of specific concerns.  The first was that the applicant’s evidence about being in hiding after the November 2002 incident until he departed India contained inconsistencies which rendered that aspect of his story implausible, and by implication the whole of his story implausible. 

11. The Tribunal also thought that his claim that he was wanted by Indian authorities was inconsistent with the fact that the applicant left India on a passport in his own name legally through an airport.  The Tribunal also thought implausible the applicant’s evidence explaining how he could leave India. 

12. The Tribunal also addressed the applicant’s delay in applying for a protection visa. It considered a claim, which the applicant made for the first time in the course of responding to the s.424A letters, that people had been visiting and contacting his parents at their home to inquire about him at least once a week in the previous three years. The Tribunal thought that this was a recent invention which showed him not to be a witness of truth.

13. In my opinion, the Tribunal gave reasons justifying its finding against the applicant’s credibility, which were rational and show a proper attempt to perform its jurisdiction.  I have considered the reasoning and procedures of the Tribunal and cannot see any arguable jurisdictional error affecting its decision. 

14. The applicant’s grounds in his application were: 

    1.Insecurity from the Naxalites and corrupted police officials. 

    2.Frequent enquiries about me by some unknown people (possibly Naxalites). 

    3.Request you to protect me on humanitarian grounds as I cannot get evidence for all the things that happened to me as you can understand it from my statutory declaration. 

15. Plainly, these do not provide arguments raising jurisdictional error affecting the Tribunal’s decision. 

16. Nor was the applicant today able to point to any matter which could provide jurisdictional error.  He addressed me only on reasons why he thought that the Tribunal had wrongly declined to accept his credibility, in particular, as to his explanations for his delay in seeking protection in Australia.  However, these were matters going to the merits of the Tribunal’s decision only, and I do not think they provide any argument with any prospect of allowing the Court to give the remedy he seeks. 

17. 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 seventeen (17) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  31 January 2007