SZLXL v Minister for Immigration
[2008] FMCA 482
•8 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLXL & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 482 |
| MIGRATION – RRT decision – Indian applicant claiming political and religious 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), s.424A(1) |
| First Applicant: | SZLXL |
| Second Applicant: | SZLXM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 162 of 2008 |
| Judgment of: | Smith FM |
| Hearing date: | 8 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 8 April 2008 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms E Warner Knight |
| Solicitors for the Respondents: | Australian Government Solicitor |
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 applicants must pay the first respondent’s costs in the sum of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 162 of 2008
| SZLXL |
First Applicant
| SZLXM |
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 3 July 2007 they applied for protection visas against return to India. Only the husband made claims to be a refugee, and I shall refer to him as “the applicant”.
A statement attached to his visa application, claimed that the applicant was an active member of a Hindu cultural organisation known as the Vishwa Hindu Parishad (“the VHP”) and that he was also active in a Hindu political party, the BJP. He claimed that he was harassed by Muslim activists in his town as a result of his activities, that he was physically attacked by them three times, and that he and his wife received threats at other times. He claimed that the police did not assist him when he made complaints, and that they falsely accused him of being involved in a crime. No support for these claims was presented to the Department of Immigration, nor on appeal to the Refugee Review Tribunal.
A delegate refused the application on 16 August 2007, and the applicants appealed to the Refugee Review Tribunal.
The applicant attended a hearing held by the Tribunal on 23 October 2007, without his wife. The tapes of that hearing were subsequently sent to the applicant by the Tribunal on 25 October 2007. The applicant and his wife were also invited to a second hearing, but they did not attend.
According to the description of the first hearing given by the Tribunal in its statement of reasons, the applicant was given a full opportunity to present his claims, and he did so by giving a markedly inconsistent version of his history compared to that given in his written statement. The Tribunal said that it drew his attention to the inconsistencies, discussed its concerns with him, and offered him more time to comment on its concerns, which he declined.
On 8 January 2008, the Tribunal handed down a decision affirming the delegate’s decision. In its statement of reasons under the heading “Findings and Reasons”, the Tribunal properly identified the claims made by the applicant, and the inconsistencies between his evidence given to it at the hearing and his written statement. It also pointed to the extreme vagueness of much of his evidence concerning his involvement in the VHP and the BJP and the claimed harassment. The Tribunal also said that it considered that his evidence that the police had not protected him was inconsistent with general information showing that the BJP was currently in power in his State of Gujarat, and that there were strong links between the BJP, the VHP and the police in Gujarat.
For all these reasons, the Tribunal did not accept that the applicant was generally credible, and did not accept any of the particular elements in his claims. It was not satisfied that the applicant or his wife would be harmed in India, and was not satisfied that there was a real chance that they would be harmed as a result of actual or perceived association with the BJP or the VHP upon their return to India.
The applicants now ask the Court to set aside the Tribunal’s decision, and to remit the matter for further consideration. They have been given an opportunity to file an amended application, submissions and evidence in support of their application, after receiving a bundle of relevant documents and a referral for free advice from a legal advisor. They were warned at the first court date that the application might be dismissed at today’s hearing, if I were not satisfied that it raised an arguable case for the relief claimed.
They have filed an amended application and a submission, but no evidence in support of their contentions.
The original application made unparticularised claims of breach of s.424A(1) of the Migration Act 1958 (Cth), denial of procedural fairness, and error by the Tribunal in its conclusions. However, I can see no arguable substance for these contentions on the material before me.
The amended application contains a confused argument alleging constructive failure of jurisdiction.
I can see no arguable substance in its assertion that there was a failure by the Tribunal to properly read the statement made by the applicant to the Department of Immigration, and to address his claims and the evidence he gave. The Tribunal clearly did address these matters.
A series of allegations are also made, claiming that the applicant was denied procedural fairness due to his being confused at the hearing and due to the interpreter failing properly to interpret his evidence. However, no substance for these allegations has been presented to the Court by way of evidence, notwithstanding the opportunities the applicant has had to do that. On the Tribunal’s description of its hearing, which is all that has been put before the Court, there is no arguable substance shown for these contentions.
The applicant’s outline of submissions also contains an obscure argument that the Tribunal assessed the applicant’s claims by arbitrarily rejecting his evidence “without any factual basis underpinning the rejection”. However, I can see no arguable basis for that contention. The Tribunal’s reasoning points to abundant rational reasons for disbelieving the applicant. Its conclusions based upon its disbelief were inevitable.
The applicant today had nothing to say to the Court.
In my opinion, after reading all the documents filed by the applicants, the application does not raise an arguable case for the relief claimed, and it is appropriate to dismiss the application under r.44.12(1)(a) with costs.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 16 April 2008
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