SZKQS v Minister for Immigration

[2007] FMCA 1448

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKQS v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1448

MIGRATION – RRT decision – Thai applicant claiming persecution for perceived association with terrorists – 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(1), 424A(3)(b), 476

SZBYR v Minister for Immigration & Citizenship [2007] HCA 26

Applicant: SZKQS

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG1572 of 2007

Judgment of: Smith FM

Hearing date: 7 August 2007

Delivered at: Sydney

Delivered on: 7 August 2007

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Mr J Pinder

Solicitors for the Respondents: DLA Phillips Fox

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

SYG1572 of 2007

SZKQS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application filed on 3 May 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 relation to a decision of the Refugee Review Tribunal (“the Tribunal”) dated 14 March 2007 and handed down on 3 April 2007. The Tribunal affirmed a decision of a delegate made on 12 January 2007, refusing to grant a protection visa to the applicant.

2. The application was returnable before me at a first court date on 12 June 2007.  The applicant was represented by a barrister, who informed the Court that the applicant would be receiving advice from counsel, and would therefore not require a referral for free legal advice.  Orders were made allowing the applicant to take his advice after receiving a bundle of relevant documents.  The orders made clear that the application might be dismissed today if I were not satisfied that it raised an arguable case for the relief claimed. 

3. The applicant has filed an amended application, but no evidence to that which is contained in the Court Book.  I shall consider the two arguments contained in his amended application below. 

4. The applicant came to Australia in 1998 from Thailand, his country of nationality, to study here.  He returned home at least once before his last arrival in 1999.  He subsequently ceased to study, and became an unlawful resident before making his application for a protection visa on 22 December 2006. No assistance was disclosed in the application form. 

5. A typed statement set out the reasons why he claimed to fear persecution if he returned to Thailand.  He claimed to have had a friend who was “a high ranking member of a group who made the violence in the 3 provinces of south Thailand.  I don’t have any involvement with these troubles”.  The statement then referred to acts of terrorism in 2001 and 2005, after the applicant had come to Australia.  The statement said:  

   One of the groups behind the violence involved with internal conflict with my friend group.  As my friend was having some of incident of the violence group.  My friend inform to the police about it.  That group discovered that me and my friend informed the matter to police the group tried kill us by assassination.  I and my friend were haunted by the group the group believed that we disclosed its intention, arms and hideout to the police. 

   When the group was searching for me and my friend, I flee from the south, and tried to stay in the capital; the group sent their killer cell to find us and to kill.  When we discovered that the killers pursuing us then we flee from the Thailand for save my life.  My friend went to Malaysia I came to Australia.  Arrived on Australia on dated January 99 by a student visa.  The group along who conflicted with us still engaged in insurgency along with others groups in the south. 

6. Further details of these events were not provided to the Department, nor any independently corroborative evidence.  The delegate refused the application on the ground, in particular, that the period of the applicant’s four years unlawful residence in Australia suggested that “the applicant’s claims have been fabricated to support his application for a Protection visa in order to prolong his stay in Australia”.  The delegate also referred to the “extremely vague and unsubstantiated” nature of his claims, and noted that he had been issued a renewed passport by the Thai Consulate in 2006. 

7. On appeal, the applicant attended a hearing held by the Tribunal on 12 March 2007.  At the hearing he showed the Tribunal his old passport and his new passport.  He also presented a body of internet media reports concerning violence in Thailand in recent years, and a copy of the statement which had accompanied his protection visa application.  

8. According to the Tribunal’s description of the hearing, the applicant also made a new claim:  

   The Tribunal asked the applicant when he found out that his friend was a member of the group.  The applicant said that initially he did not know of his friend’s involvement but he found out when he and his friend were harmed during celebrations in Bangkok in April 1998.  The applicant said that his friend told him about his involvement after they were harmed.  When asked how they were harmed, the applicant said they were ambushed by men dressed like Muslims. 

   The Tribunal referred to the Statement provided by the applicant to the Tribunal (folios 53‑54) and indicated to the applicant that there is no mention of the April 1998 incident in the Statement.  The applicant said he did not mention this previously because he wanted to tell the Tribunal personally.  The Tribunal indicated that it would further consider his explanation. 

9. The applicant maintained that he was at risk of revenge at the hands of the group “for his and his friend’s reporting of the incident to the police”.  There were inconsistencies in his evidence on whether in fact he had reported the incident to the police.  The Tribunal also drew to the applicant’s attention the possible significance of his delay in lodging an application for a visa as reflecting on “the genuineness of his fear of persecution”. 

10. Under the heading “Finding and Reasons”, the Tribunal referred to a number of reasons for not being satisfied as to any of the applicant’s claims to have suffered harm in the past, and for not being satisfied that “there is a real chance of such harm occurring in the reasonably foreseeable future”. 

11. The Tribunal referred to the absence of important details from the written statement given to the Tribunal, and of the absence of any reference to an incident in April 1998.  In relation to this it said: 

    The Tribunal appreciates that a hearing is indeed an opportunity to elaborate on one’s claims, however, the fact that a significant claim was not made in the Statement provided to the Tribunal suggests that the applicant may have been fabricating claims in the course of the hearing, raising doubts about the veracity of the claims, and his credibility. 

12. The Tribunal also referred to inconsistencies between the written claims and the oral evidence, and to the applicant’s return to Thailand in 1999 and his delay in claiming protection, in support of a finding that “he does not have a well‑founded fear of persecution”. 

13. The Tribunal referred to the media reports forwarded by the applicant to the Tribunal:  

    In reaching its conclusions, the Tribunal has given regard to the generic reports provided by the applicant (folios 19‑52).  The Convention definition does not encompass those fleeing generalised violence, internal turmoil, or civil war (MIMA V Haji Ibrahim (2000) supra).  Whilst the Tribunal acknowledges that there are security issues in various parts of Thailand, in consideration of the evidence as a whole, the Tribunal is not satisfied that the applicant would be persecuted for a Convention reason. 

    In sum, the Tribunal is not satisfied that the applicant suffered any Convention‑related harm or that there is a real chance of such harm occurring to him in the reasonably foreseeable future. 

    Therefore, the Tribunal finds that the applicant does not have a well‑founded fear of persecution for a Convention reason. 

14. I have considered the Tribunal’s reasoning and procedures, and am unable to identify any reasonably arguable ground of jurisdictional error affecting the Tribunal’s decision. 

15. The applicant was not represented today, and had no submissions to elaborate any grounds of jurisdictional error.  However, I have considered the grounds in the applications he has filed. 

16. His original application contained a general list of jurisdictional errors, without any indication of an argument giving any of them relevance to the present proceeding or any arguable merit.  

17. The amended application contains two grounds: 

    1.The second respondent failed to afford the Applicant procedural fairness in circumstances where he was not given an opportunity to respond to adverse findings and inconsistencies in accordance with the requirements in section 424A of the Migration Act 1958 (the “Act”).

    Particulars: 

    a.The second respondent stated that the Applicant may be “fabricating” his claims (CB 120.1). 

    b.At the hearing the second respondent confronted the applicant with the adverse finding when it made the claim that “significant claim” was not mentioned in the statement provided to the Tribunals (at CB 119.9). 

    c.The second respondent did not give the Applicant written notice in accordance with section 441A of the Act of particulars of any information it considers would [be] the reason, or part of the reason, for affirming the decision that is under review.

    2.The Second Respondent committed a jurisdictional error of law by failing to conduct a review as whether there was effective state protection available to the Applicant. 

    Particulars: 

    a.In affirming the delegate’s decision the Second Respondent relied upon old and independent country information (“ICI”) showing that “there are security issues in parts of Thailand,…” (at CB 120.7 – 9). 

    b.The Second Respondent failed to address whether effective state protection was available from “security issues in parts of Thailand,…” (at CB 120.7 – 9) thereby committing jurisdictional error. 

18. The first ground alleging failure of the Tribunal to comply with s.424A(1) in relation to the Tribunal’s use of information from the written statement has, in my opinion, no arguable merit. Not only was that statement republished to the Tribunal so as to come within s.424A(3)(b), but also the use of the written statement by the Tribunal was only to show inconsistencies giving rise to doubts about the credibility of the applicant’s claims generally. No obligation under s.424A(1) could therefore arise (see SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [17]‑[22]).

19. The second ground suggests jurisdictional error by reason of a failure to examine effective State protection.  However, in my opinion, this clearly misunderstands the path of the Tribunal’s reasoning.  It is clear that the Tribunal rejected the applicant’s claims and found that he did not have well‑founded fears of persecution for a Convention reason, based upon its rejection of the credibility of his claimed history.  In those circumstances, it was not obliged to consider whether there would be effective State protection available to the applicant if his claims had been accepted.  I can discern no reasonably arguable error in the Tribunal’s reference to country information in its reasons. 

20. For the above reasons I am not satisfied that the application raises an arguable case for the relief claimed. I consider it appropriate to dismiss the application under r.44.12(1)(a).

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  24 August 2007