SZMAM v Minister for Immigration

[2008] FMCA 726

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMAM v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 726

MIGRATION – RRT decision – Indian applicant claiming religious and other persecution – disbelieved by Tribunal – no arguable case – application dismissed at show‑cause hearing.

Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a)

Applicant: SZMAM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 572 of 2008

Judgment of: Smith FM

Hearing date: 27 May 2008

Delivered at: Sydney

Delivered on: 27 May 2008

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Ms B Griffin

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. 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.

2. The applicant must pay the first respondent’s costs in the sum of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 572 of 2008

SZMAM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant arrived in Australia in May 2007, and on 14 May 2007 he applied for a protection visa against return to India. A statement later submitted to the Department of Immigration made unparticularised claims that he had been harassed both by Muslim people and Hindu people as a result of being a Christian. He referred to a number of incidents involving himself and members of his family, including that BJP workers had set fire to his house, and that the Muslims became his enemies when he commenced a prawn and cashew business.

2. A delegate refused his application on 29 June 2007, referring to concerns about the veracity of his claims. The delegate did not accept the applicant’s claim that State protection was not available to him in his home state of Kerala or in India as a whole, and he pointed out that the BJP had failed to win a single seat in the 2004 State election in Kerala.

3. On appeal, the applicant attended a hearing held by the Tribunal on 5 October 2007, where it thoroughly questioned him about his claimed history.  The Tribunal detected a number of internal inconsistencies in his evidence about incidents where he and his wife had been attacked and his church had been attacked.  These were put to the applicant in the course of the hearing, and also in a later letter inviting comments.  The Tribunal also put to the applicant information which it had from his visitor’s visa application, which was signed and dated by the applicant in 2006, prior to the incidents which he claimed had caused him to flee India. 

4. In a decision handed down on 19 February 2008, the Tribunal affirmed the delegate’s decision.  In its statement of reasons it carefully identified the claims made by the applicant, and explained the defects in his evidence about them.  It formed a conclusion that he was not a truthful witness, and that his statements both to the Department and to the Tribunal lacked credibility.  It was not satisfied as to any of the events in which he claimed to have been persecuted. 

5. The Tribunal also considered a general submission that he was at risk in India by reason of being a person from the middle class with a well‑to‑do family, and because he was a businessman and a Christian.  The Tribunal was not satisfied that he had been persecuted as a member of any particular social group and, in view of its finding adverse to his credibility, was not satisfied that there was a real chance that he would face persecution as a member or imputed member of a particular social group if he returned to his country.  It was not satisfied that he was a person to whom Australia had protection obligations. 

6. The applicant now asks the Court to set aside the Tribunal’s decision and to send the matter back to the Tribunal.  His application has been set down today to consider whether it raises an arguable case for the making of these orders, and the applicant has been given an opportunity to file an amended application and evidence after receiving a bundle of relevant documents and a referral for free legal advice. 

7. He has not filed any additional documents, but relies on his original application.  It contains the following two grounds: 

   1.That the decision of the RRT was affected by jurisdictional error in that the Tribunal did not take into consideration or ‘integers’ central to the applicant claims. 

   2.The Tribunal thereby failed to carry its review function and to exercise its jurisdictions. 

8. In my opinion there is no arguable substance shown for either of these grounds.  They both lack meaningful particulars, and, for myself, I am unable to identify any argument which has any prospect of revealing a jurisdictional error. 

9. I consider that the Tribunal thoroughly identified all the “integers” of the applicant’s claims, and I can see no arguable respect in which it failed to carry out its review function.  In my opinion, the Tribunal’s decision was clearly open to it on the material before it. 

10. The applicant today had no argument to present to me to show jurisdictional error.  He sought more time to present more documents in support of his refugee claims, but this could not allow this Court to give him the relief he seeks. 

11. In my opinion the application does not raise an arguable case for the relief claimed, and it is appropriate to dismiss it under r.44.12(1)(a).

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  4 June 2008