SZLNR v Minister for Immigration

[2008] FMCA 102

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLNR & ANOR v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 102

MIGRATION – RRT decision – Indians claiming persecution by political parties – claims disbelieved – no arguable case – application dismissed at show‑cause hearing.

Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a)

Migration Act 1958 (Cth), s.424A(1)

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

First Applicant: SZLNR

Second Applicant: SZLNS

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3280 of 2007

Judgment of: Smith FM

Hearing date: 29 January 2008

Delivered at: Sydney

Delivered on: 29 January 2008

REPRESENTATION

Counsel for the Applicants: Applicants in person

Counsel for the First Respondent: Ms N Johnson

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 applicants must pay the first respondent’s costs in the sum of $2,500. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3280 of 2007

SZLNR

First Applicant

SZLNS

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The two applicants came to Australia in March 2007, and sought protection visas upon the claims made by the husband, whom I shall refer to as “the applicant”.  A written statement attached to his visa application claimed that he had been active in the local Congress Party in his small town in India, and had been targeted by members of the BJP who harassed him and put him out of business.  He had to borrow money, but was unable to make repayments and was attacked by his lenders.  To avoid these economic problems he came to Australia. 

2. The delegate refused the application on 19 May 2007, and the applicants appealed.  The applicant husband attended a hearing held by the Tribunal on 25 July 2007, where he gave a significantly different history.  He denied belonging to any political group, and blamed his business collapse upon persons who he said were associated with the Congress Party.  He also claimed to have been attacked and badly injured, although he had previously not said anything about that.  The Tribunal put its concerns about his new claims to him in a letter as well as at the hearing. 

3. In its decision handed down on 27 September 2007, affirming the delegate’s decision, the Tribunal said:  

   However, having regard to the contradictions between what the applicant said in the statement accompanying his original application and what he said at the hearing before me, I do not accept that he is a credible witness. 

4. The Tribunal did not accept that he was threatened by people from either the BJP or the Congress Party, including people from either party belonging to particular castes.  The Tribunal did not accept that he had been attacked and injured, nor that his parents had been attacked.  The Tribunal accepted only that the applicant wanted to remain in Australia to earn money to repay his debts, but did not accept that he would be persecuted for reasons of real or imputed political opinion or for any other Convention reason if he returned to India. 

5. The applicants now ask the Court to set aside the Tribunal’s decision and to order it to reconsider their refugee claims.  Their application has been listed today to consider whether it raises an arguable case for the making of these orders.  The applicants have been given an opportunity to amend the grounds of their application and to file further evidence after receiving a bundle of relevant documents and a referral for free legal advice.  They have not, however, filed any documents other than their original application. 

6. This contains the following grounds: 

   1.That the tribunal’s decision was in breach of section 424A (1) of the Migration Act 1958 (Cth).

   Particulars: 

   (a)The tribunal did not disclose the information in accordance with s424A(1). 

   2.That the tribunal made error of law and lack procedural fairness and therefore committed Jurisdictional error. 

   3.That the tribunal made denial of natural justice.  Because the tribunal was wrong in concluding that the applicant’s claims were not Convention related. 

7. In relation to Ground 1, no particulars of information evidencing a failure to comply with s.424A(1) is pointed to, and I am unable to see any argument that there was non‑compliance with s.424A(1). The Tribunal did put the contradictions in the applicant’s evidence to him in a letter, although it was probably not obliged to do that (see SZBYR v Minister for Immigration & Citizenship [2007] HCA 26).

8. The contentions in Grounds 2 and 3 that there was lack of procedural fairness are unparticularised, and I am unable to identify any unfairness in the Tribunal’s procedures which could be argued to have occurred, nor any arguable failure to observe procedures required by the Migration Act 1958 (Cth).

9. The applicant husband attended today, but had no arguments to present to me to show an arguable case that the Tribunal’s decision was affected by jurisdictional error. 

10. I am not satisfied that the application raises an arguable case, and 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:  Lilian Khaw

Date:  6 February 2008