SZLPX v Minister for Immigration
[2008] FMCA 199
•12 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLPX v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 199 |
| MIGRATION – RRT decision – Indian applicant claiming persecution by Muslim extremists and police – disbelieved by Tribunal – no arguable case – application dismissed at show-cause hearing. |
| Migration Act 1958 (Cth), s.424A Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a) |
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572
| Applicant: | SZLPX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3499 of 2007 |
| Judgment of: | Smith FM |
| Hearing date: | 12 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 12 February 2008 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the First Respondent: | Ms A Crittenden |
| Solicitors for the Respondents: | Clayton Utz |
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 $2,500
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3499 of 2007
| SZLPX |
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 May 2007, and applied for protection against return to India. A very brief statement attached to the visa application said that he had been engaged in Kerala with “social works (Christian community)”, in his spare time from his work as an accountant. He claimed that people “planned to kill me”, and that he could not live in his country.
A delegate refused the application on 5 June 2007, and the applicant appealed. He elaborated his claimed history in a written statement to the Tribunal, and also at a hearing he attended on 5 September 2007. In this evidence, he claimed to have been a Christian, and to have been involved in church activities assisting deserving people, and giving bible lessons and English classes at his church. His statement claimed that he had been arrested by police around September 2006, on accusations that he had been involved in converting Muslim students. He claimed to have been assaulted by the police on that occasion, and also subsequently when he sought to complain. He also claimed in his written statement to have been abducted in December 2006 by “Muslim gundahs”, and to have been taken to Tamil Nadu, tied to a tree, and told not to return to Kerala.
His evidence to the Tribunal, as explained in the Tribunal's reasons, contained some significant differences from his written statement. These were identified by the Tribunal. It concluded that the events that he had described had not taken place. The Tribunal did not accept that the applicant had suffered harassment at the hands of police on any occasion, nor that he had been ordered by the police to leave the area. It did not accept that he had been abducted, taken to a remote site, and threatened with death.
The Tribunal noted that the applicant had previous visas which would have allowed him to depart India much earlier, and the Tribunal concluded that the applicant did not have a fear of persecution for any reason at all. It concluded that he did not face a real chance of persecution if he returned to India, and made a finding that he would be able to practice his religion and attend a church of his choosing in India.
Its decision was handed down on 16 October 2007, and affirmed the delegate's decision.
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 set down 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 file further evidence, after receiving a bundle of relevant documents and a referral for free legal advice.
The applicant has filed an amended application which unfortunately is taken from precedents currently circulating. As does his original application, it contains grounds with little apparent relationship to the Tribunal's decision in this case. It repeats grounds 1, 2 and 6 from his original application. Grounds 3 and 4 of the original application plainly have no relevance to the Tribunal's decision.
Ground 1 of the amended application contains a misconceived legal argument alleging a breach of s.424A of the Migration Act. It is misconceived, because it refers to authority which has been superseded by the Full Court’s discussion in Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572 concerning the relationship of s.424A to general country information. It is now clear that s.424A(3)(a) excludes any obligations in respect of such material from the Tribunal’s duties under s.424A(1). In any event, in the present case the Tribunal did not rely on general country information when affirming the delegate's decision. No arguable ground of review is shown in this ground.
Grounds 3, 4 and 5 of the amended application contain allegations that the Tribunal failed to address all the applicant's claims and evidence. However, in my opinion, no arguable substance is shown for that contention. The Tribunal did identify and address all the applicant's evidence and, as I have explained above, disbelieved his claims entirely. I can see no arguable ground of review raised by these grounds.
Ground 3 of the amended application contends that the Tribunal was required to consider whether the Indian authorities provided a standard of protection comparable with international standards. However, that contention has no relevance to the reasoning of the Tribunal. The Tribunal was not obliged to consider issues of the general level of protection in India against persecution, since it concluded that the applicant had no genuine fear of persecution for any reason.
Ground 6 contends that the Tribunal applied the wrong tests, but I can see no arguable substance in this ground which is copied from a precedent. Nor, in my opinion, is there any substance in the contention elaborated in ground 6 that the Tribunal misapplied the definition of refugee.
The applicant appeared today and had no arguments to make to me. He sought a further opportunity to present more evidence to the Tribunal. However, the court would not have power to order this, in the absence of any failure by the Tribunal to comply with its jurisdictional obligations.
After considering all the matters raised by the applicant, I consider that the application does not raise an arguable case for the relief claimed, and that it is appropriate to dismiss the application under rule 44.12(1)(a).
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 25 February 2008
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