SZLQD v Minister for Immigration
[2008] FMCA 190
•12 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLQD v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 190 |
| MIGRATION – RRT decision – Indian applicant claiming political persecution – disbelieved by Tribunal – no arguable case – application dismissed at show‑cause hearing. |
Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a)
Migration Act 1958 (Cth), ss.91R, 424A(1), 424A(3)(a)
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572
| Applicant: | SZLQD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3518 of 2007 |
| Judgment of: | Smith FM |
| Hearing date: | 12 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 12 February 2008 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms S Kantaria |
| 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 $2,100.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3518 of 2007
| SZLQD |
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 March 2007, and applied for protection against return to India. His application claimed that he had been an active member of the BJP party in his home town in Kerala. He claimed that he had been arrested two times by police, and accused of encouraging “violence in the name of religion”. He claimed that the leader of the CPI(M) Party in his local area was trying to kill him because the BJP were getting stronger in his area. He claimed that a second arrest prompted him to seek protection, and that he was in breach of bail conditions when leaving India.
No supporting evidence for these claims was presented to the Department of Immigration, nor to the Tribunal on appeal after a delegate refused the application on 31 May 2007. The applicant appeared before the Tribunal on 13 August 2007, and was questioned about his claims.
The Tribunal handed down a decision on 23 October 2007, which affirmed the delegate’s decision. It said that it was not satisfied that the applicant had been involved with the BJP and had promoted Hinduism, nor that he had been attacked, arrested and mistreated as he claimed. The Tribunal referred to aspects of the evidence given to it which left it with the impression that the applicant had not been speaking from actual experience. It thought that he lacked knowledge of the BJP party to the extent expected. It found that he could not answer its questions, because “he is not committed to the party for political or religious reasons and not involved with the party as claimed”.
The Tribunal found his account of his arrest implausible, and found that there was not a real chance that he would suffer serious harm “from the Marxist party or the police for the reasons claimed, including his involvement with the BJP, promoting the supremacy of Hinduism, seeking equal rights for lower castes Hindus, or breaking his bail conditions”. It was not satisfied that he had a well‑founded fear of persecution if he returned to India for any Convention reason.
The applicant now asks the Court to set aside the Tribunal’s decision and to order it to reconsider his refugee claims. The 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 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 relies on an application and an amended application, which have been drafted using grounds taken from obscure and, in some respects, irrelevant precedents.
I do not accept the contentions in the application, which are repeated in Grounds 2 and 3 of the amended application, that the Tribunal failed to consider the applicant’s claims and evidence. In my opinion, the applicant has no arguable basis for establishing these grounds.
The first ground in the amended application contends that there was a failure by the Tribunal to observe s.424A(1) of the Migration Act 1958 (Cth) by reason of its reference to general country information. It is true that the Tribunal drew on such information concerning the BJP and other political matters. However, reliance upon such information was excluded from any obligations under s.424A(1) by s.424A(3)(a). This has been made clear in Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572, which was later than the case cited in this ground. I do not consider there is any arguable basis shown for this ground to succeed.
Ground 4 in the amended application appears garbled in its contentions. I could find no basis in the present decision of the Tribunal for arguing error by the Tribunal by reference to s.91R, or to the principles in relation to relocation. In fact, the present Tribunal’s decision did not turn upon those principles.
I do not understand Ground 5 in the amended application, and can see no arguable ground of review raised by it.
In relation to Ground 6 of the amended application, the Tribunal was not obliged in the present case to address the standards of protection available to the applicant in India, since it found that the applicant had not suffered any of the harassment which he had claimed.
In relation to Ground 7, I do not consider that there is any arguable basis for showing that the Tribunal’s decision was so illogically reasoned as to demonstrate jurisdictional error. Rather, in my opinion, the Tribunal’s findings on credibility were clearly open to it and were arrived at on a rational basis.
The second Ground 7 in the amended application repeats a generally used precedent, and I can find no basis in it for finding jurisdictional error affecting the present Tribunal’s decision.
The applicant attended today. He sought more time to gather evidence from India, which he claimed he would receive after August this year. He claimed that he was unaware that he needed to present that evidence to the Tribunal. However, the letters sent to him by the Tribunal drew attention to the fact that the hearing was the opportunity for him to present all his evidence.
I do not consider that anything he has said to me today points to any arguable case for showing that the Tribunal failed to follow procedures required of it under the Migration Act. Nor, as I have explained to the applicant, can the fact that he hopes to have better evidence to support his refugee claims provide a reason for this Court remitting the matter to the Tribunal, in the absence of any jurisdictional error.
I have considered all the arguments which have been presented by the applicant to the Court, and am not satisfied that his 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 sixteen (16) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 25 February 2008
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