SZJTW v Minister for Immigration - [2007] FMCA 481

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJTW & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 481

MIGRATION – RRT Decision – Indian Hindu BJP supporter claiming political persecution – no arguable case – application dismissed at show cause hearing.

Migration Act 1958 (Cth), ss.424A(1), 476
Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a)

First Applicant:

SZJTW

Second Applicant:

SZJTX

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3535 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 $2,300.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3535 of 2006

SZJTW

First Applicant

SZJTX

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 29 November 2006, in which the applicants seek 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

2 November 2006 and handed down on 16 November 2006. The Tribunal affirmed the decision of a delegate taken on 6 September 2006 refusing to grant protection visas to the applicants, who are a husband and wife. No separate refugee claims were made by the wife, and I shall refer to the husband as ‘the applicant’.
The application was returnable at a first Court date before me on

22 December 2006. The applicant husband appeared in person and was assisted by an interpreter. I explained the nature of the proceedings to him and he was given time to file an amended application and evidence and a written submission after receiving a bundle of relevant documents and a referral for legal advice. I warned him that the application might be dismissed at today’s listing if I were not satisfied that it raised an arguable case.
The applicants were sent a referral for free advice, but have filed no additional documents or evidence.
The applicant and his wife arrived in Australia in May 2006, and filed an application for a protection visa on 11 June 2006 with the assistance of an agent. The application referred to a typed statement in which the applicant’s claims for protection against return to India were set out.
The applicant claimed to have been an active member of the BJP party in Gujarat state. He claimed to have come into conflict with the workers for the Congress Party in his region, and recounted incidents where he was attacked on his bicycle and taken to hospital, and when he and his wife were attacked by somebody throwing “An acid bulb on us”. He claimed then to have become scared of living in India.
A delegate refused the application on the grounds that the claims were vague and lacking in specific details, that they were unsubstantiated, and that as a supporter of the BJP and a Hindu he could relocate in India. The delegate said:
It also goes against the credibility of his whole claim that the applicant states, that, on the one hand he does not have enough information regarding his unknown attackers to approach the Indian police service for protection, yet on the other, he implies specific motives to his unknown attackers in his current claims.
The applicant attended a hearing held by the Tribunal on 1 November 2006, and presented some documents corroborating that he had been an active worker for the BJP in 1997. The Tribunal said that the differences between his account of experiences in India and his written statement were discussed with the applicant, and that he said these were the result of a friend making mistakes when preparing the statement. The Tribunal ultimately said that it believed that the applicant's oral evidence was largely truthful subject to some reservations, and that it was prepared to accept his explanation for the discrepancies and “will proceed on the basis of his oral submissions”.
According to the applicant's oral evidence he had held no official position in the BJP. He had participated in the 2002 elections to the extent of helping people to attend polling stations, and had not participated in the 2004 national elections at all. The incident where he was assaulted on his bicycle had occurred in 2005, after a municipal election. The acid attack had taken place three months after the first attack. The applicant was questioned about local politics in his state, and showed little knowledge.
Under the heading "Findings and Reasons" the Tribunal concluded:
I accept much of what the applicant said at the hearing, including his explanation for the difference between his oral and written claims. However, what he described as his political activity revealed a very minor figure who would not have attracted the hostile attention of opposition supporters. As I pointed out to the applicant at hearing, Hindus are in the overwhelming majority in his state (almost 90%). His party dominates the state government and his state and national local members are both from his party- elected with large majorities. I do not accept, therefore, that it is credible that he should be pursued by opposition supporters with a view to doing him harm. If the attacks he claims took place did indeed happen, I believe that they were for other reasons. I note in this regard that, in his written statement, he stated that “I was not sure that who attacked me”, which adds to my conviction that the attacks were criminal and not political.
The Tribunal arrived at the same conclusion on an assessment of the original written claims, and regarded the statement's assertion that the attacks happened as a result of his political activities as “pure speculation”.
The Tribunal also made a finding that:
Were he to be threatened in the manner he claims, he would have access to protection from state authorities.
The Tribunal concluded that it was not satisfied that the applicant was attacked or threatened in India for reason of his political opinion or that there was a real chance of his being subject to any harm, or threat of harm, for that reason or for any other Convention reason, should he return to India in the foreseeable future.
I have considered the Tribunal's reasoning and can see no arguable error affecting its procedures or conclusions.
The applicant's application to the Court contains the following grounds:
1.The tribunal failed to follow proper procedure, denial of natural justice and made jurisdictional error at the time of deciding the applicants matter.
2.The tribunal’s decision was in breach of section 424A of the Migration Act. The tribunal did not provide adverse informations before them in deciding the applicants case.
Particulars:
The tribunal at the time of hearing accepted the discrepancies between the written statements and oral evidence by the applicant before honourable member. But the tribunal later, at the time of its decision disregards and used the discrepancies against the applicant without providing an opportunity to response. By doing this the tribunal was in breach of procedural fairness and denied my natural justice, which fall under the jurisdictional error. And in breach of section 424(A)(1) of the Migration Act 1958.
The allegations in ground one are lacking in any meaningful particulars. I am unable to give any substance to the claim that there was a failure of procedure on the part of the Tribunal.
The argument in ground two, that there was a failure under s.424A(1) revealed by the Tribunal's references to the applicant's protection visa application statement, has no arguable substance. It is clear from the Tribunal's reasoning that information taken from that statement did not provide the reason, or a part of the reason, for the Tribunal affirming the delegate's decision.
The applicant had no submissions to make to me today except that he was afraid to go back to India. In my opinion his application has not raised 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 seventeen (17) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 5 April 2007