SZLUK v Minister for Immigration - [2008] FMCA 1157

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLUK & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1157

MIGRATION – RRT decision – Indian claiming persecution as small businessman – disbelieved by Tribunal – no jurisdictional error – application dismissed.

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

First Applicant:

SZLUK

Second Applicant:

SZLUL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3918 of 2007

Judgment of:

Smith FM

Hearing date:

6 August 2008

Delivered at:

Sydney

Delivered on:

6 August 2008

REPRESENTATION

Counsel for the Applicants:

Applicant husband in person

Counsel for the First Respondent:

Ms S Sirtes

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The applicants must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3918 of 2007

SZLUK

First Applicant

SZLUL

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicants arrived in Australia in March 2007. On 1 May 2007, they lodged an application for protection visas, assisted by a migration agent, Mr Raymond Solaiman. They are a husband and wife and only the husband made claims to be a refugee. I shall refer to him as “the applicant”.
The visa application contained only the following statement to explain why the applicant feared to return to India:
Applicant claims subject to persecution in the hand of non private agents, “criminals, thugs, extortionists”, as a result being, “businessmen” and the state refused protection as a result of unwillingness to comply with the unlawful demand of bribes.
Some other questions were answered: “will provide later”, and other questions seeking details of the applicants were left blank. No further details or material were subsequently provided to the Department of Immigration, other than copies of some pages from their passports.
A delegate refused the application on 25 June 2007. The delegate found that there was no country information to support the view that the Indian government fails to protect businessmen in India, and that there was a reasonable level of State protection available in India for its citizens.
The applicants appealed to the Tribunal, without appointing an agent. They attended a hearing of the Tribunal held by video link to Mildura on 2 October 2007. They appear to have been sent a copy of the tapes of the hearing, but have not presented a transcript to the Court.
The Tribunal provides a summary of the evidence of the applicant in its statement of reasons. He claimed that he had conducted an electrical appliance shop in a Muslim area of Ahmedabad, and that “people came every month, Muslim people in groups of ten to fifteen, they demanded money from me. I denied them money and so they attacked me many times”. The Tribunal tried to obtain details of these attacks. The applicant claimed that the people who did them were supported by the Congress Party, and that the police took no action when he reported their actions. The attacks started in 2005 and were repeated in 2006, and caused him to return to his village, and then he “kept moving to different small villages”. The applicant claimed that he still owned his shop but that it was currently empty.
The Tribunal allowed the applicant 15 days after the hearing to present more documents, but he did not present any corroboration of his claims to the Tribunal.
The Tribunal also served on the applicant a written invitation to comment on information. This included information obtained by the Tribunal from India concerning the documents provided to the Department of Immigration in support of the applicant’s application for a tourist visa. The Tribunal described the information in a manner which, in my opinion, conformed to s.424A(1) of the Migration Act 1958 (Cth). The information indicated that he had given a false telephone number for a claimed electronics business, that sales tax certificates and registration documents provided by him were fraudulent, and that a purported bank account statement was not genuine. The Tribunal also put other matters to the applicant in the invitation for comments, but there was no response by the applicants.
The Tribunal handed down its decision on 27 November 2007, and affirmed the delegate’s decision. In its statement of reasons, the Tribunal said that it found the applicant not to be a credible witness. It said that he was evasive in his responses to its questions, his evidence changed in the course of the hearing and was implausible, and he did not respond when invited to comment or clarify relevant matters.
The Tribunal referred to the information obtained from India, and thought that it suggested that in fact he may never have owned a small business. The Tribunal did not accept that he was a small business owner in India, nor that he was a leader of any group of small businessmen who were subject to extortion, nor that he had ever been the victim of extortion attempts or physical attacks.
The Tribunal did not accept that he was at risk of any serious harm from any religious or political group or because of his own acts or imputed religion or political opinion, nor that he was a member of any particular social group subject to extortion or physical attack from any group that has political protection. The Tribunal found that there was no real chance that he would face persecution if he returned to India.
The applicants now ask the Court to set aside the Tribunal’s decision and to remit the matter for further consideration by the Tribunal. I can only make these orders if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicants are refugees or should be given permission to stay in Australia.
The original application filed in this Court made unparticularised assertions that the Tribunal “denied proper application of law”, denied natural justice, and did not follow due procedure. These remain unexplained by any submissions made by the applicants, and I am unable to give them any meaningful application to the Tribunal’s decision or procedures.
The applicant’s amended application contains two grounds. The first contends that “the Tribunal misunderstood or misconstrued the term, ‘well‑founded fear’” because it “failed to appreciate that the applicant has a well founded fear of persecution due to his political identity in India”. However, this contention appears only to argue with the merits of the Tribunal’s conclusions. I can discern no error in the Tribunal’s understanding of the definition of “refugee” revealed in its reasoning when rejecting the applicant’s claims.
The second ground in the amended application contends that “the Tribunal made findings in the complete absence of evidence”. Particulars are then given:
(a)The Tribunal erroneously found that the applicant has not well founded fear of political persecution.
(b)It was not open to the Tribunal to find that there was no evidence before it that the applicants were unable to access effective state protection.
(c)In finding that was no evidence before it that the applicants were unable to access effective state protection, the Tribunal ignored the evidence of the applicant that he had in fact been denied any social or any other protection because of his political identity and belief.
In relation to paragraph (a) of these particulars, I can find no jurisdictional error affecting the Tribunal’s conclusion that the applicant did not have a well‑founded fear of persecution for any reason related to the Convention. That conclusion was clearly open to it on the evidence before it.
In relation to paragraphs (b) and (c), in fact the Tribunal did not address, and did not need to address, the availability of State protection to the applicant, since it rejected his claimed history of persecution. These particulars, therefore, appear to have been taken from a precedent with no bearing on the present matter.
The applicant attended today but had no submissions to make to me.
On my consideration of the material before the Court, the Tribunal’s decision was not affected by any jurisdictional error, and I must dismiss the application.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 15 August 2008