SZLSI v Minister for Immigration
[2008] FMCA 418
•26 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLSI & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 418 |
| MIGRATION – RRT decision – Indian fearing persecution by business partner – Tribunal found the applicant lacked credibility, his claims had no Convention nexus, and effective protection would be available – no arguable case for judicial review – application dismissed at show‑cause hearing. |
| Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a) Migration Act 1958 (Cth), ss.424A, 425 |
| SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 |
| First Applicant: | SZLSI |
| Second Applicant: | SZLSJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3719 of 2007 |
| Judgment of: | Smith FM |
| Hearing date: | 26 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 26 March 2008 |
REPRESENTATION
| Counsel for the Applicants: | In Person |
| Counsel for the First Respondent: | Mr G Johnson |
| Solicitors for the Respondents: | DLA Phillips Fox |
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 3719 of 2007
| SZLSI |
First Applicant
| SZLSJ |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicants are a husband and wife who came to Australia in May 2007. On 21 June 2007 they applied for protection against return to India. Only the husband made claims to be a refugee, and I shall refer to him as ‘the applicant’.
In his protection visa application and a statement attached to it, he indicated that he had been working in Ahmedabad, in Gujarat State. He had suffered a bad experience in a communal riot in 1985. He had then gone into business, and suffered financial losses. In particular, this occurred in a business which he ran with a partner, who was of the Muslim religion. The applicant is a Hindu. He claimed that his partner refused to account to him for profits and losses, and then threatened to kill the applicant and his family. His statement said:
As I used to constantly ask him about the money one day he came up with few goon and mugged me in front of my family and said not to ask any more or else will kill my whole family and asked me to leave the city and if I complained about him he would even get me hold wherever I went.
The applicant therefore came to Australia for shelter.
A delegate refused the visa applications on 9 July 2007.
On appeal, the applicant explained his claims further to the Tribunal, when he attended a hearing on 2 October 2007. The Tribunal questioned the applicant about the claimed threats from his Muslim partner, and at the end of the hearing put to the applicant various concerns which it told him might cause it not to believe all of his claims as being true.
On 6 November 2007, the Tribunal handed down a decision, affirming the delegate’s decision. It provided three reasons for finding that the applicant did not have a well-founded fear of persecution for a Convention reason based on the harms he claimed to have suffered from his partner.
First, it found the applicant's account of the attacks and harassment by his partner to be “lacking in detail and implausible”. It was therefore not satisfied that the applicant's life had been threatened, or that he had been beaten or harmed or harassed in any way by his business partner.
Secondly, the Tribunal found it implausible that “a Hindu man, living in a predominantly Hindu state with a pro-Hindu government, would not receive a reasonable level of protection from the police against the threats of a Muslim man”.
Thirdly, the Tribunal concluded that the harms the applicant claimed to face did not arise under any of the five Convention reasons.
In the course of its reasoning, the Tribunal also considered the applicant's general situation as a Hindu person who had experienced a communal riot in 1985. It noted that the applicant had not indicated that he had been harmed or specifically targeted in any other riots after that year, and it was not satisfied that the applicant's fear of being killed in riots was well-founded. For all these reasons, the Tribunal was not satisfied that the applicants were persons to whom Australia owed protection obligations under the Refugees Convention.
The applicants now ask the Court to set aside the Tribunal's decision and to remit the matter for further consideration. Their application has been set down today to consider whether it raises an arguable case for the making of these orders. The applicants have been given an opportunity to file an amended application and evidence, after receiving a bundle of relevant documents and advice from a free legal adviser. However, no amended application has been filed.
The grounds and particulars set out in the original application are as follows:
1.The first respondent denied the applicant natural justice.
Particulars:
The first respondent should have put to the applicant country information which was adverse to the applicant’s case, because it contained information adverse to the applicant.
2.The second respondent failed to comply with a mandatory provision of the Migration Act 1958 (Cth) (Section 425), in failing to invite the applicant to attend, give evidence and present arguments in relation to issues arising out of the decision under review.
Particulars:
The Tribunal erred in law amounting to jurisdictional error in determining that relocation is a reasonable and feasible option for the applicant. Constructive failure of jurisdiction: the Tribunal did not decide the real question in the case, as it had no rational basis upon which to answer the question of the effectiveness of protection and in so doing failed to properly assess whether there was a real chance of persecution in the future. The Tribunal failed to decide whether the protection afforded was sufficient to remove a real chance of protection. And therefore the Refugee Review Tribunal’s decision was affected by jurisdictional error.
I can see no arguable substance to the first ground, claiming a denial of natural justice. On the Tribunal's description of the hearing, the applicant was clearly put on notice as to the issues concerning his credibility which were of concern to the Tribunal, including concerns arising from the Tribunal's general knowledge about Gujarat, information as to which had been set out in the delegate's decision. I can see no arguable basis for contending that the Tribunal failed to comply with requirements of fairness, whether arising under s.424AA or under s.425 according to the principle addressed by the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152.
The contention in the second ground, that the Tribunal failed to afford obligations under s.425, is therefore also not reasonably arguable.
The particulars set out under ground 2 are taken from a precedent with no clear application to the present case, and they also garble several contentions which are difficult to understand as a coherent argument. The Tribunal, in fact, did not address issues of relocation in the present case, and was not required to do so on the path of reasoning it followed.
In my opinion, none of the contentions made in the particulars to the application reveal an arguable ground of jurisdictional error in the present case.
The applicant husband attended today, but had no arguments to make to me.
I am not satisfied that the application raises an arguable case for the relief claimed, and I consider it appropriate to dismiss the application under r.44.12(1)(a).
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 2 April 2008