SZKPL v Minister for Immigration
[2007] FMCA 1244
•24 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKPL & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1244 |
| MIGRATION – RRT decision – Indian applicant harassed in 2001 after witnessing a political bombing – Tribunal found no current risk of harm, and access to State protection – 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), s.476
| First Applicant: | SZKPL |
| Second Applicant: | SZKPM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1454 of 2007 |
| Judgment of: | Smith FM |
| Hearing date: | 24 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 24 July 2007 |
REPRESENTATION
| Counsel for the Applicant: | First Applicant in person |
| Counsel for the First Respondent: | Mr B O’Brien |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed under r.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 |
SYG1454 of 2007
| SZKPL |
First Applicant
| SZKPM |
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 8 May 2007, 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) (“the Migration Act”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 26 March 2007 and handed down on 17 April 2007. The Tribunal affirmed the decision of the delegate made on 19 January 2007, refusing to grant protection visas to the applicants. The applicants are a husband and wife, but the wife made no separate refugee claims, and I shall refer to the applicant husband as “the applicant” as did the Tribunal.
The application to the Court was returnable at a first court date before me on 29 May 2007. The applicant husband attended, and was assisted by a Malayalam interpreter, as he is today. The nature of the proceeding was explained to him by me and in an information sheet, and the applicants were given an opportunity to file an amended application and evidence after receiving a bundle of relevant documents and a referral for free legal advice. The applicant was warned that his application might be dismissed today if it did not raise an arguable case for the relief claimed.
The applicants have received a referral, and written advice was sent to them. They have filed an amended application which I shall address below.
The applicants arrived in Australia in September 2006, and lodged their applications for protection visas on 27 October 2006. No assistance in completing the application was revealed, and no supporting evidence in support of claims to fear return to India was provided to the Department nor on appeal to the Tribunal.
However, the Tribunal ultimately accepted the history which was set out in a written statement in the protection visa application, and which was further explained to the Tribunal by the applicant when he attended a hearing on 23 March 2007. He was subsequently sent tapes of that hearing, but has not presented any transcript to the Court.
The applicant in his protection visa application referred to a series of incidents in his background. He said he was a Christian from Kerala in India. The first incident he referred to occurred in 1969 when he and a friend came to the assistance of a Christian girl who was being molested at a cinema. He claimed that “the whole Muslim people” were against him and his friend for assisting the police in their inquiries, and he said that he then left for Madras in 1971 as a result.
In Madras, the applicant worked with a company, until deciding to go overseas for employment in 1985. At this time, a leader of the DMK party was arrested on the applicant’s complaint, after he cheated the applicant out of some money. The applicant claimed that he then received threats, and left Madras in 1986 as a result.
The applicant then worked in Saudi Arabia before coming back to another town in India, where he conducted a vegetable business in a market between 1988 and 2000. However, in 1998 there was a bomb blast in the market with the objective of killing the Deputy Prime Minister of India and a senior BJP leader. PDP political party members were accused, and one of them was detained and arrested and confessed to the bombing. That person and the leader of the PDP were sent to prison. The applicant claims that he was interviewed by the police in the course of their investigations and, although he was not responsible for the PDP arrests, members of the PDP party came to his house and harassed members of his family at that time. The applicant told the Tribunal that he still feared the PDP, and blamed them for some injuries which his son had suffered in 2001. He told the Tribunal:
He stated he had no firm evidence that PDP members were interested in him but he was always fearful that they were seeking to harm him. He stated that in 2001 he received anonymous and threatening telephone calls after midnight. He assumed the PDP were responsible for the calls.
He therefore left India again and worked in Saudi Arabia between 2001 and 2004, before returning to a different town in India, where his extended family lived. He ran his own business there until coming to Australia. The applicant remained fearful of harm from PDP members during this period but no incidents occurred.
The Tribunal discussed with the applicant whether the police would protect him, but he said that, even if they tried, they would not be able to do anything after he was killed.
In its “Findings and Reasons”, the Tribunal said:
The Tribunal accepts that the applicant and his wife are citizens of India. The Tribunal accepts the applicant’s claims that he reported persons to the police in 1969 who were involved in attacking a Christian girl, that his friend was murdered in Madras in 1985, that he had a dispute with [a political leader] in Madras and that he was threatened by that man and his associates, and that following the 1998 Coimbatore bombings he was questioned by the police regarding his neighbours who were implicated in the bombings. The Tribunal accepts the claim that in 2001 he and his family were harassed by members of the PDP after it became known that he was questioned by police regarding the Coimbatore bombings.
The Tribunal accepts that the applicant genuinely fears the PDP, Muslim rowdies and gundas who may have been involved in the 1969 attack on a Christian girl, [the political leader], DMK members, and persons involved [in] the murder of his friend in 1985. Nevertheless, although the Tribunal accepts that the applicant’s fear is genuine, it does not accept that it is well‑founded. The Tribunal finds that despite the applicant’s concern that he was a person of interest to the PDP and others in India, no one other than the PDP in 2001 demonstrated any interest in him for a considerable period of time. Furthermore, the Tribunal considers it significant that the applicant was living in [his town] for two years before he came to Australia and during that period he was not harassed, approached, or otherwise harmed, by the persons he fears. The applicant stated that he sometimes moved around during that period but he also stated that he lived in his house for two years and he operated his own business. The Tribunal finds that if the applicant was indeed a person of interest to any of the persons he fears they would have demonstrated that interest during that period. The Tribunal finds that it is mere speculation by the applicant that he is a person of interest to the parties and persons he fears in India and that those parties or persons were seeking to harm him at the time he departed India for Australia. The Tribunal finds that it is mere speculation on the part of the applicant that he is currently a person of interest to any political party or person in India or that those parties or persons will seek to harm him in the reasonably foreseeable future.
The Tribunal also gave an alternative reason for finding that the applicant did not have a well‑founded fear of persecution in India for a Convention reason. This was that it considered that: “in the past, when the applicant approached the police for assistance, the police responded appropriately and expressed a willingness to protect him”, and that on general country information: “the state of India provides reasonable level of protection for its citizens and … the applicant will have access to that protection if he requires it in the future”.
I have considered the Tribunal’s reasoning and its procedures. Its reasoning appears to me to be well open on the evidence before it. The assessment of the risks facing the applicant in India in the future was essentially a matter for the judgment of the Tribunal, and I can see no arguable jurisdictional error affecting its decision.
The applicant’s application to this Court and his amended application contain a number of arguments addressing some of the findings made by the Tribunal, and refer to information casting doubt on the Tribunal’s ultimate conclusions. It is not clear to me that the information was, in fact, given by the applicant to the Tribunal. In any event, in my opinion the points he makes go only to the merits of the Tribunal’s findings, and do not raise any arguable jurisdictional error. In my opinion, the Tribunal clearly did address the claims made by the applicant to be a refugee who has the protection of the Refugee’s Convention.
The applicant today again sought to persuade me that he is a refugee needing protection, and he submitted that he has additional evidence to establish this. However, it is not the task of the Court to assess the merits of his claims, and the Court has no power to send his case back for further consideration by the Tribunal in the absence of any jurisdictional error affecting its decision.
I have considered all of the material before me and the arguments presented by the applicant, and I am not satisfied that the application raises an arguable case for the relief claimed. I consider it appropriate to dismiss the application today under r.44.12(1)(a).
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 9 August 2007
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