SZLGA v Minister for Immigration

[2007] FMCA 1992

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLGA v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1992

MIGRATION – Indian applicant fearing political persecution – did not attend Tribunal hearing – no arguable case – application dismissed at show-cause hearing.

Federal Magistrates Court Rules 2001 (Cth), r44.12(1)(a)
Migration Act 1958 (Cth), s.426A(1)

Applicant: SZLGA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2659 of 2007

Judgment of: Smith FM

Hearing date: 20 November 2007

Delivered at: Sydney

Delivered on: 20 November 2007

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the First Respondent: Ms M Palmer

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. 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.

2. The applicant must pay the first respondent’s costs in the sum of $2,300.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2659 of 2007

SZLGA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant arrived in Australia in March 2007, and applied for a protection visa on the ground that he feared persecution if he returned to his country of nationality, India. A statement attached to his visa application gave a history, in which he claimed that he and his family were involved in local politics in relation to a district council, and that he also supported his party in elections for state and other bodies. In the course of elections in 2004, and again in 2005 and 2006, he was harassed and assaulted by members of the opposition Congress party. His complaints to the police were fruitless. He said that further threats were made in January 2007, and his father died of a heart attack. He moved to a different district, but his life was in danger everywhere, so he fled India and came to Australia. No supporting evidence for his claims was provided to the Department of Immigration nor to the Tribunal.

2. A delegate refused the application on 3 May 2007, and that decision was affirmed by the decision of the Tribunal handed down on 7 August 2007.

3. The Tribunal noted that an invitation to appear before the Tribunal to give evidence had been sent to the applicant at the address which he gave in his application for review, but that no response was received, and there was no attendance by the applicant at the hearing. The Tribunal therefore proceeded to make a decision without taking any further action to enable the applicant to appear at a hearing, as it was empowered to do by s.426A(1) of the Migration Act 1958 (Cth). I have considered the procedures followed by the Tribunal in that respect, and can see no arguable defect in them.

4. In its reasons for affirming the delegate’s decision, the Tribunal referred to the applicant's claims, and said:

   Given the lack of evidence to substantiate the applicant's claims and without the opportunity to explore the details or test the truthfulness of his claims at a hearing, the Tribunal is unable to be satisfied on the evidence before it that the applicant was involved in the Indian National Lokdal Party as claimed or that he was threatened or harmed by the Congress Party.  The Tribunal is similarly unable to be satisfied that the Indian police refused to protect him from harm or that his life is in danger everywhere in India and therefore that is he is unable to relocate to avoid the claimed persecution. 

   The Tribunal is therefore not satisfied, on the evidence before it, that the applicant has a well founded fear of persecution for a Convention reason if he returns to India.

5. I can see no arguable ground of jurisdictional error revealed in that reasoning.

6. The applicant 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 an opportunity to amend the grounds of his application and to provide further evidence, after receiving a bundle of relevant documents and a referral for free legal advice. However, he has not filed any additional documents.

7. His original application has two grounds:

   1.The Refugee Review Tribunal has failed to seek independent information which proves my claims.

   2.The Refugee Review Tribunal has not provided me procedural fairness.  It has failed to consider my genuine claims.  I was persecuted and I have genuine fear that I will be persecuted and may be killed if I go back to India.

8. The first ground, in my opinion, does not raise any arguable case. I can see no basis for finding any obligation on the Tribunal to seek further information, given the authority which it is given under s.426A(1).

9. In relation to the second ground, I can see no arguable failure of procedural fairness, particularly, since the Migration Act expressly authorised the procedure followed by the Tribunal.

10. The applicant has not pointed to any arguable reason why the Tribunal's discretion to determine the matter, rather than appoint a re-scheduled hearing, has miscarried. The applicant told me that he was aware of the hearing, but that he had “a problem with food” that day and could not attend. He said he did not contact the Tribunal to explain his absence or ask for a rescheduled hearing. He has presented no sworn evidence as to these matters, nor any medical support. Moreover, I do not think those circumstances, even if they were properly proven, could provide an arguable ground of jurisdictional error based on procedural defects.

11. The claim that the Tribunal failed to consider the applicant's claims, has no foundation, since they were all recited by the Tribunal in its decision, and were addressed by it in the manner I have indicated above.

12. In my opinion the application does not raise an arguable case for the relief claimed, and it is appropriate to dismiss the application today under r.44.12(1)(a).

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Michael Abood

Date:  29 November 2007