SZLTL v Minister for Immigration - [2008] FMCA 389

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLTL v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 389

MIGRATION – RRT decision – Indian Muslim claiming persecution by Hindu extremists – 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, 425

Applicant:

SZLTL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3827 of 2007

Judgment of:

Smith FM

Hearing date:

18 March 2008

Delivered at:

Sydney

Delivered on:

18 March 2008

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms N Johnson

Solicitors for the Respondents:

Sparke Helmore

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 3827 of 2007

SZLTL

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 February 2007, and applied for a protection visa on 15 March 2007. A typed two page statement attached to the application set out the history upon which he claimed to fear return to India. He said that he had become secretary of a Tamil Muslim organisation in his district of Tamil Nadu, and had been involved in social activities for assisting poor people and also converting Hindu into the Muslim religion. He claimed that as a result his name was put on the hit list of Hindu extremist groups, RSS and BJP. He received warnings, and “after three months they attacked me three times”.
He then claimed to have moved to Bangalore, but he received further threats, and in January 2000 he went to Malaysia for two years. He claimed to have returned to India to visit his father, and to have been again attacked and admitted to hospital. He then left the country again, living in Bangkok. On his most recent visit to India, he found that he could not stay there because “the horrible fellows killed my friend”.
A delegate refused the application on 29 March 2007. The delegate said that “the applicant has not provided any evidence to show that he was unable to access State Protection as a result of the difficulties he faced in India”.
On appeal, the applicant attended a hearing held by the Tribunal on 28 June 2007. He showed the Tribunal his passport which showed extensive periods of residence in Malaysia, and travel back to India and to Thailand.
The Tribunal subsequently sent to the applicant a letter inviting him to comment on inconsistencies which it found in his evidence concerning the dates when he was assaulted, and his travel as shown in his passport. The applicant responded to that letter, including by giving it copies of his membership card for the Muslim organisation, and medical records showing that he had been treated in 2001 for a varicose vein in his right leg.
The Tribunal sent to the applicant a further letter inviting him to comment on its researches in country information, which suggested that there were no recent reports showing actions by the RSS against Muslims or Muslim organisations in Tamil Nadu. The applicant responded to that letter also.
In its decision handed down on 20 November 2007, the Tribunal affirmed the delegate’s decision. It referred to the matters which it had put to the applicant in writing and during the hearing, and it said that it found the applicant “not credible”. It concluded that the applicant had sought to mislead the Tribunal in relation to his claim to fear harm to him by extremists in India. It did not believe his testimony that the RSS planned to kill him, nor that he had been attacked or been in danger at any time. It did not accept that his friend had been murdered for the reasons claimed. It was not satisfied that the medical reports he showed were as the result of the claimed attack in 2001.
The Tribunal also considered the position of the applicant as a Muslim, and as a member of the Muslim organisation, if he returned to Tamil Nadu. It referred to country information, and did not consider that it supported a finding that the applicant would suffer harm in Tamil Nadu in the reasonably foreseeable future because he was a Muslim, or was a member of the organisation, or had performed charity work leading to the conversion of some Hindus. It was not satisfied that there was a real chance that the applicant would suffer serious harm in the reasonably foreseeable future for a Convention reason if he returned to India.
The applicant now asks the Court to set aside the Tribunal’s decision, and to remit the matter for further consideration. 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 his application and to file evidence, after receiving a bundle of relevant documents and a referral for free legal advice.
He has filed an amended application which, unfortunately, contains elements copied from a precedent with no apparent relevance to his case.
Thus, the first ground claims that the Tribunal failed to consider whether the Indian authorities provided a standard of protection comparable with international standards. However, that issue did not arise for the Tribunal to consider, in view of its finding against the credibility of the applicant’s claimed history of persecution by Hindu extremists.
The contentions in the amended application, that the Tribunal failed to take into account relevant considerations and the applicant’s claims, have no arguable substance in my opinion. The Tribunal’s reasons show that it fully addressed the history presented to the Tribunal by the applicant.
Ground 2 in the amended application contains an unclear reference to the applicant being “questioned without a break and felt stressed and intimidated”, which may relate to the Tribunal’s hearing. However, no substance has been shown to the Court by evidence from the applicant, or in the Court Book, for any suggestion that the Tribunal failed to afford the applicant a fair hearing in accordance with the requirements of s.425 of the Migration Act 1958 (Cth).
The other grounds in the amended application claiming that the Tribunal applied the wrong test, and that it made errors in its application of the definition of “refugee” and the application of s.91R and other sections of the Migration Act, have, in my opinion, not been shown to have any arguable substance in the present case.
The Tribunal’s conclusion ultimately turned essentially on the rejection of the credibility of the applicant’s personal history in relation to persecution, and upon a proper assessment of his situation shorn of those claims. I can see no arguable jurisdictional error committed by it when arriving at its findings.
The applicant was not able to develop any of his arguments before me today.
I am not satisfied that his application raises an arguable case for the relief claimed, and I consider it appropriate to dismiss the application under r.44.12(1)(a) of the Federal Magistrates Court Rules.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 31 March 2008