SZLDA v Minister for Immigration
[2007] FMCA 1831
•23 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLDA v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1831 |
| MIGRATION – RRT decision – Phillipino applicant claiming failure of State protection against persecution by criminal – disbelieved by Tribunal – no arguable case – application dismissed at show-cause hearing. |
| Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a) Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553 |
| Applicant: | SZLDA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2347 of 2007 |
| Judgment of: | Smith FM |
| Hearing date: | 23 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 23 October 2007 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the First Respondent: | Ms B Anniwell |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed under Rule 44.12(1)(a) 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 $2,400.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2347 of 2007
| SZLDA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant came to Australia in 2007, and made an application for protection against return to his country of nationality, the Philippines. His claims were set out in a letter from his solicitor, who said that the applicant had been “placed in a threatening position by the inability and unwillingness of the police to provide effective protection” against a criminal, about whom the applicant had complained to the police. It was suggested that his fears of harm did not relate to “membership of a political group”, but to his being a member of a social group of “persons who are unable to elicit protection from the Philippines police”.
The solicitor also said “cumulative discriminatory grounds may also prevail.” He claimed that the applicant had suffered difficulties as a result of discriminatory behaviour directed at his sister, who had a physical disability. A document purporting to be a letter from the police was given to the Department, and a second letter purporting to corroborate the claims was given to the Tribunal.
A delegate refused the application on 9 March 2007, and his or her decision was affirmed by a decision of the Refugee Review Tribunal handed down on 5 July 2007.
In the course of the hearing held by the Tribunal on 26 April 2007, the Tribunal identified some inconsistencies in the applicant's statements, his corroborative evidence, and his oral evidence to the Tribunal. These were also put to him for comment in a s.424A letter dated 27 April 2007. The applicant responded by suggesting that he was having “mental lapse. I could not recall the date even the past incident happened”.
In its statement of reasons, the Tribunal examined the inconsistencies in the evidence, and found that the applicant “is not a truthful witness and his statements both to the Department and to the Tribunal lacked credibility”. It had doubts about the genuineness of the police reports, and was not satisfied that the applicant had ever been threatened by the criminal. Moreover, if his evidence was accepted, the Tribunal said that it did not show that the police had denied protection to him. For both reasons, it found that there was no plausible evidence that the applicant had suffered persecution in the Philippines because of any Convention ground, or that there was any real chance that he would suffer persecution for a Convention ground if he returned.
The applicant now asks the Court to set aside the Tribunal's decision and to order it to reconsider his refugee claims. His application has been listed today to consider whether it raises an arguable case for the making of these orders. The applicant has been given the opportunity to file an amended application and further evidence, after receiving a bundle of relevant documents and a referral for free legal advice. However, he has not filed any further documents other than his original application and affidavit.
The application contains three grounds. The first and third grounds repeat the applicant's claims to have a fear of return to the Philippines, and also present economic reasons for wishing to stay in Australia. However, these matters do not provide grounds for the orders sought in this application.
The second ground is:
The applicant had no job to turn when coming back and had family to support. No peace of mind caused that incident happened created a big distress physically and psychologically. That why applicant answered questions of the hearing inconsistencies.
It is unclear what argument the applicant is presenting to the Court in this paragraph. It appears to present to the Court the same explanation which was presented to the Tribunal, in answer to the s.424A letter raising his inconsistent evidence for comment. The Tribunal identified that explanation in its statement of reasons, and I do not consider that it is reasonably arguable that the Tribunal failed to consider it before deciding that the applicant's evidence revealed him not to be truthful. I do not consider that the applicant has raised any case to support a claim that he suffered from some incapacity when giving his evidence, which was not taken into account by the Tribunal, so as to give rise to a ground of review such as was found in Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553 or SZIWY v Minister for Immigration & Citizenship [2007] FMCA 1641.
Considering all the material before me, including the applicant's evidence and his statements to me today, 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 ten (10) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 5 November 2007
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