SZKTO v Minister for Immigration - [2007] FMCA 1599

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKTO v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1599

MIGRATION – RRT decision – Indian applicant claiming political persecution – disbelieved by Tribunal – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth)

Applicant:

SZKTO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1846 of 2007

Judgment of:

Smith FM

Hearing date:

11 September 2007

Delivered at:

Sydney

Delivered on:

11 September 2007

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the First Respondent:

Mr J Mitchell

Solicitors for the Respondents:

Blake Dawson Waldron

ORDERS

The application is dismissed.
The applicant pay the first respondent’s costs in the sum of $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1846 of 2007

SZKTO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant has applied for a protection visa on the ground that he fears persecution if he returns to India. He is a Hindu from the state of Haryana, who claimed that his father and whole family were supporters of the BJP Party at a time when it was in power in his state. When the Congress Party were contesting an election in February 2005, troublemakers were hired by that party who threatened him and his brother, and threatened to kill all members of his family and to burn their house. There was resistance by the applicant and some BJP supporters, and the police were informed, but they never gave assistance. After the election, the Congress Party gained government in his state, and further threats were made. He claimed that his business was closed, that he could not get protection from the police, and that he therefore came to Australia.
A delegate refused the visa application on 7 July 2006, and the applicant sought review by the Refugee Review Tribunal.
At a hearing held by the Tribunal which the applicant attended in September 2006, he gave some further details, some of which were inconsistent with his original claims. For the first time, he identified an incident which started all his problems, when he was assaulted at a political rally, and incurred the enmity of a person who became a member of parliament for the Congress Party. The applicant had originally joined the BJP to try to get customers for his business, and after the Congress Party took power he tried to join them, but his application was refused. On the other hand, his brother was permitted to join the Congress Party.
The Tribunal questioned the applicant about his travel in 2005 to Malaysia and Thailand, where he had not sought asylum, and also about a period when he had lived in Delhi. After much correspondence with the applicant's agent, the translations of three letters from people back in the applicant's village were presented to the Tribunal. These letters urged him to stay away.
In its decision handed down on 22 May 2007, the Tribunal affirmed the delegate’s decision.
The Tribunal considered all the evidence presented by the applicant and his agent, including what he had said at the hearing, and the responses by the applicant and his agent to two written invitations for comment. It carefully, in my opinion, identified the claims made by the applicant, and accepted some of the applicant's evidence. However, it rejected critical aspects, on the basis that the applicant was not a witness of credit, and that it was surprising that the incident which was at the centre of the applicant's claims at the hearing had not been referred to earlier when the visa application was made. The Tribunal also found aspects of the story implausible.
The Tribunal concluded that neither the incident involving a scuffle with the Congress Party candidate, nor the subsequent visit by troublemakers to the family's home had occurred. It did not accept that the applicant had been persecuted by the Congress Party, and was not satisfied that he was in need of police protection. The Tribunal referred to an explanation given by the applicant for inconsistencies in his evidence. It said:
The Tribunal does not agree that the inconsistencies between the visa application form and the Tribunal hearing can be explained, as the applicant attempted to do so, by his rapid speech, particularly in light of his agreement at the Tribunal hearing that he understood the interpreter fully.
The Tribunal thought that the fact that the applicant's brother had gained membership of the Congress Party, and that the applicant had submitted an application to join that party, did not suggest that he was in fear of his life from members of that party. It thought that some of his actions subsequent to the election, in relation to his earlier travel overseas and his return to his home village in 2005, were inconsistent with the documents submitted by the applicant. It therefore gave them little weight.
The Tribunal did not accept that the applicant had suffered any past harm, let alone persecutory harm, for any Convention-related reason or other reasons. It was not satisfied that he had a well founded fear of Convention-related persecution at the time of its decision nor in the reasonably foreseeable future if he returned to India.
I have considered the Tribunal's reasons and its procedures and am unable to identify any jurisdictional error affecting its decision. I therefore do not have power to make the orders sought by the applicant, that is, to set aside the Tribunal's decision, and order it to reconsider his refugee claims.
The application to this Court was filed on 13 June 2007, and was returnable at a first Court date before Emmett FM on 5 July 2007. On that occasion her Honour gave directions to the applicant, who appeared with the assistance of a Hindi interpreter. She gave him an opportunity to file an amended application and evidence, after receiving a bundle of relevant documents and a referral for free legal advice. She listed the case for final hearing today.
The applicant has been sent the material, and has received advice from a barrister under the free advice scheme. He has, however, not filed any supporting evidence nor an amended application or written submissions. His original application to the Court did not identify any jurisdictional error whatsoever, but merely repeated his refugee claims and disputed the conclusions of the Tribunal.
The applicant attended today and presented a certificate from a medical centre at Harris Park, purporting to be signed by a doctor and certifying that the applicant:
Is in my opinion suffering from illness and will not be fit for duty from 10 September '07 to 11 September '07.
This certificate does not properly explain any incapacity which might interfere with the applicant's participation in today's hearing, and he did not exhibit any incapacity which was apparent to me. I did not consider that the certificate provided a proper basis for adjourning the hearing, as was sought by the applicant. I considered that he had been given an ample opportunity to prepare and present his arguments to the Court.
The applicant had no arguments to show jurisdictional error, other than repeating a claim that he had not properly understood the interpreter at the Tribunal hearing. However no evidence to establish that contention has been presented to the Court, and it is inconsistent with the Tribunal's description of the hearing.
I am satisfied that the applicant was given a sufficient opportunity to present arguments to the Court, and that he has been unable to identify and establish jurisdictional error affecting the Tribunal's decision.
For the above reasons I must dismiss the application.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 4 October 2007