SZJSO v Minister for Immigration
[2007] FMCA 2136
•4 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJSO v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 2136 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – merits review not available in judicial review proceedings. |
| Migration Act 1958, s.474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SZJSO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2078 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 4 December 2007 |
| Date of Last Submission: | 4 December 2007 |
| Delivered at: | Sydney |
| Delivered on: | 4 December 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $2,600.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2078 of 2007
| SZJSO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of India where, he claims, he was a member of the National Congress Party (“NCP”). He alleges that while in India he organised demonstrations against the central government and that this subsequently led to him being detained for 15 days. The applicant arrived in Australia on 15 November 2005.
The applicant claims to fear persecution in India because of his political beliefs and activities.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on
16 February 2006. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
The decision the subject of these proceedings is the second such decision relating to the applicant. A previous decision of the Tribunal was set aside by order of this Court (Court Book (“CB”) pages 72 – 73).
In these judicial review proceedings the Court cannot rehear the applicant’s application for a protection visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 6 and 10 – 16 of the Tribunal’s decision (CB 110 – 112 and 116 – 122).
Protection visa application form
In a statement attached to the applicant’s protection visa application form, he made the following claims:
a)his father was an active member of the NCP and the applicant was also selected as a member of the NCP;
b)on many occasions, the applicant organised demonstrations and processions against the central government;
c)the applicant’s activities were opposed and he and landless peasants apparently involved in the protests became the target of attack from higher castes;
d)the police arrested the applicant for causing communal violence in the villages, charged him with false cases and put him in prison for 15 days. He was later released on bail;
e)the applicant and his friend were arrested while putting up anti-government posters on buses and in the streets. They were marched down the street in handcuffs. They were subsequently sentenced to three months imprisonment. When the applicant was in gaol, members of a higher caste and members of the Muslim community set fire to and destroyed his newsagency;
f)after the applicant was released, communal clashes between Hindus and the Muslims continued. The police arrested many people;
g)the state and central government created a lot of problems for the applicant;
h)the local police were corrupt and constantly demanded money from the applicant. When the applicant refused, he was arrested, tortured, framed and gaoled. The police wanted to publish his name in the Gujarat communal violence list;
i)Muslim fundamentalists threatened and tortured the applicant and his family and he received no support from the local or central government;
j)the applicant’s family advised him to move away. He went to Japan but had visa problems there; and so
k)the applicant moved to Australia. He fears that he will be arrested, tortured and eventually killed by the police or Muslim fundamentalists were he to return to India.
Second Tribunal hearing
At the second Tribunal hearing, the applicant made the following additional claims:
a)in May 2000 he was arrested because he had been involved in riots between Muslims and Hindus, during which he was involved in reciprocating violence for violence between the two religious groups. He said that if a Hindu house was burnt he and his fellow rioters would burn a Muslim house. Nevertheless, the applicant stated that he had not been sentenced formally by a court, just subjected to ongoing police harassment;
b)the first time he was arrested was in July 2003 and the second time was in September 2003, when he was arrested for putting up posters around Ahmedabad. The applicant was also arrested for pulling down opposition party posters in September 2003. In July 2003 he was detained for two days and in September 2003 he was detained for 15 days. Although in July 2003 he was not charged, he was subjected to beating and ill treatment;
c)the applicant visited South Africa in 2003 and 2004 but did not apply for protection there because there was a major crime problem in South Africa; and
d)the applicant visited Australia for the first time in 2003 but did not apply for protection then as he believed that he would experience no problems in India at that time. He also did not feel comfortable being away from his family at that time.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal found that the applicant was neither a supporter or member of the NCP, nor involved in the organisation of demonstrations nor incarcerated for putting up posters promoting the NCP, noting that:
i)the applicant’s knowledge of the NCP was rudimentary and inconsistent with the level of knowledge that one would expect of a high profile member of a political party who was involved in its promotion;
ii)the applicant did not exhibit an understanding of why the NCP was formed nor its aims and objectives;
b)the Tribunal found that a person with an adverse intelligence or police profile like the applicant claimed to have would not have been issued with a passport, but the applicant did not claim to have had any difficulty with the issue of his passport. The Tribunal found the applicant’s explanation of bribing officials when necessary to facilitate his departures from India to be an embellishment for the sake of enhancing his claim for protection;
c)the Tribunal found that a person who had an adverse political profile in India, who had been arbitrarily arrested and detained and who faced a gaol term due to political opinion would have attempted to apply for protection at the first available opportunity. The Tribunal noted that the applicant failed to do this when he travelled to South Africa and Australia in 2003;
d)the Tribunal found that had the applicant had the profile that he attributed to himself and was of adverse interest to the authorities in India, then he would have applied for protection at the first available opportunity;
e)the Tribunal was satisfied that the evidence indicating that the applicant freely returned to India from his overseas trips indicated that he lacked a fear of persecution for a Convention reason;
f)the Tribunal did not accept that the applicant had experienced or would experience serious harm as defined in the Act; and
g)most significantly, the Tribunal expressed the view that it could not be satisfied that he was a witness of truth.
Proceedings in this Court
The grounds of the application filed in this Court are expressed in the following terms:
1. The RRT makes decision on 21st May 2007 and the decision was made on 12th June 2007.
2. I am not satisfied with the decision made by RRT that’s why I would like to make an application to Federal Court of Australia.
Dealing with each of these grounds in turn:
The first ground appearing in the application is not really a ground of judicial review at all and does no more than set the background to the application. The real basis of the application for review is found in the second paragraph of the application. However, as to that second paragraph of the application, as expressed it does not raise a recognised ground of judicial review. It is, in effect, no more than an invitation to the Court to review the Tribunal’s decision on the merits of the applicant’s application for a protection visa. The Court cannot do that. These are proceedings for judicial review of the Tribunal’s decision and they are concerned with the process by which the Tribunal arrived at its conclusion, not the merits of the applicant’s claim. The applicant cannot re-agitate the merits of his claim in this Court in these proceedings, and the Court cannot substitute its own view of the facts or the merits of the application for the Tribunal’s views on these matters.
No written submissions have been filed by the applicant that gave more substance to this asserted ground of review. Neither has anything been said by the applicant in submissions today which would suggest that he seeks any more than a review of the merits of his claim.
In this case, a consideration of the Tribunal’s decision record reveals that the findings it reached were open to it on the evidence before it. In particular, the Tribunal’s credit finding, being a matter par excellence for the Tribunal as described by McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407, is a finding which this Court cannot disturb.
Conclusion
The applicant has failed to demonstrate any jurisdictional error on the part of the Tribunal. Consequently, the application will be dismissed.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 8 January 2008
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