SZKCO v Minister for Immigration - [2007] FMCA 638

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKCO v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 638

MIGRATION – RRT decision – Indian Muslim applicant claiming persecution by Hindu extremists – no arguable case – application dismissed at show-cause hearing.

Migration Act 1958 (Cth), s.476

Applicant:

SZKCO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 281 of 2007

Judgment of:

Smith FM

Hearing date:

17 April 2007

Delivered at:

Sydney

Delivered on:

17 April 2007

REPRESENTATION

Counsel for the Applicant:

Applicant in Person

Counsel for the First Respondent:

Ms K Hooper

Solicitors for the Respondents:

DLA Phillips Fox

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 $1,600.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 281 of 2007

SZKCO

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 31 January 2007, which seeks 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 dated

20 December 2006 and handed down on 11 January 2007. The Tribunal affirmed a decision of a delegate made on 6 June 2006, refusing to grant the applicant a protection visa.
The application was returnable at a first Court date before me on 20 February 2007. The applicant attended, and was assisted by a Tamil interpreter. The nature of the proceeding was explained to him by me and in an information sheet, and he was given an opportunity to file an amended application after receiving a bundle of relevant documents. He was also offered an opportunity to participate in a free legal advice scheme, but he declined that opportunity. He was warned that his application might be dismissed today if it did not raise an arguable case for the relief claimed.
The applicant has filed an amended application, which I shall consider below.
The applicant arrived in Australia in April 2006, and on 5 May 2006 he lodged an application for a protection visa. No assistance in making the application was revealed in the application. The applicant made imprecise claims that he had been “the secretary of local Muslim committee” in his village in India. He claimed that following an attack on Hindu pilgrims on a train in Gujarat, which occurred in 2002, his village had been attacked by Hindu extremists, and that when he went to the police station to report the incident, he was himself arrested, held in custody and mistreated. He said “after that incident I had no alternative but leave the country”.
No supporting evidence was provided to the Department of Immigration, nor on appeal to the Tribunal, but it appears that the applicant showed the Tribunal signs of injury on his arms at a hearing held on 19 December 2006. The applicant also showed the Tribunal his passport, which showed extensive travel, including a long stay in Thailand.
The applicant told the Tribunal that he had been Assistant Secretary of a district Muslim progressive association for one year from 1998, and that “as a result of problems” he then gave this up. He referred to problems occurring in 2001, 2002 or 2003 in which he said, “the RSS was targeting him because of his activities” in his village or in his organisation. He also claimed that he had been arrested in 2003 and “repeatedly” locked up for two days at a time. He told the Tribunal that the last time that occurred was in June 2004, and that he then moved to Madras and worked there. He later worked in other places including Bangkok, returning to Madras at times.
The Tribunal's reasoning in relation to his claims was expressed briefly:
The applicant claims to have been, for a short while, a member of a local Muslim progress association and to have been attacked by Hindu extremists and to have left his village for Madras in mid 2004. He stayed there for a while and then spent considerable time in Thailand before coming to Australia. He claims that he would from time to time return to Madras for visits but was warned by his wife, who remained in his village, that the local extremists intended to pursue him to Madras, and that therefore it would still not be safe for him to return to Madras.
The Tribunal, on the basis of his physical evidence, is prepared to accept that the applicant suffered a physical attack in his local village in the past and fled to Madras, some 300 km distant. However, the Tribunal notes that he lived in Madras for a while and regularly returned there from Thailand for visits. According to his own evidence, he suffered no harm in Madras. The Tribunal finds as implausible, and does not accept, that were he to return to Madras now, local Hindu extremists from his village, with whom he had a dispute several years ago while he was a minor member of a local committee, would still intend to travel to Madras to attack him there.
In the light of the evidence before it, the Tribunal finds that there is no real chance he might suffer serious harm should he return to India. The Tribunal finds that the applicant does not have a well-founded fear of persecution for reason of his religion or for any other Convention reason.
I have considered the procedures and the reasoning of the Tribunal, and am unable to identify any arguable jurisdictional error affecting its decision. Essentially, the Tribunal did not challenge the applicant's claims as to what happened in his village, but formed an opinion that he had found a safe refuge in Madras.
The applicant's original application to the Court makes unparticularised complaints as to breach of the rules of natural justice, and failure to comply with s.424A and other sections. However, I am unable to give any meaningful content to these grounds, in the absence of particulars.
His amended application contains the following first ground:
1.The Tribunal applied the wrong test:
(a)By requiring independent evidence of the fact before the Tribunal would accept a claim being made the applicant the Tribunal was, in fact, placing to high an onus of proof an the applicant and failing to give the applicant the benefit of the doubt.
(b)The Tribunal left out individual elements of the applicant’s claims and tested weather they individually amounted to persecution rather than look at the claim as a whole determine whether the claim so considered amounted to persecution
This ground appears to have been taken from a precedent with little relevance to the decision of the present Tribunal. I am unable to identify the present Tribunal as “requiring independent evidence”. Nor as placing an onus of proof on the applicant.
I am not satisfied that there was any element in the applicant's claims which the Tribunal overlooked, and there is no substance to the suggestion that the Tribunal failed to look at the claim, "as a whole".
Ground 2 in the amended application contains an argument concerning “the privative clause”, including an unparticularised allegation that "the Tribunal did not act in good faith." I am unable to identify any arguable substance in that allegation in the material before me.
The applicant attended today. He maintained that he had a fear of the RSS, even in Madras. However, he was unable to point to anything which, in my opinion, showed an arguable ground of jurisdictional error.
I am not satisfied that his application raises an arguable case for the relief claimed, and I consider it appropriate to dismiss the application under r.44.12(1)(a).

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 30 April 2007