SZMBG v Minister for Immigration
[2008] FMCA 792
•3 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMBG v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 792 |
| MIGRATION – RRT decision – Indian claiming persecution in village in Rajasthan – 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(1)(a), 486I |
| SZLOY v Minister for Immigration & Anor (No.2) [2008] FMCA 450 |
| Applicant: | SZMBG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 646 of 2008 |
| Judgment of: | Smith FM |
| Hearing date: | 3 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 3 June 2008 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms B Anniwell |
| 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 applicant must pay the first respondent’s costs in the sum of $1,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 646 of 2008
| SZMBG |
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 April 2007 with a party of 22 persons, who were given visas to represent India as members of the Rajasthan indoor cricket team. On 30 April 2007 a registered migration agent, Mr Raymond Solaiman, lodged applications for protection visas on behalf of the applicant and his colleagues. No details of any refugee claim personal to the applicant were included in his visa application, but Mr Solaiman’s covering letter said:
Their brief claim is they do not have civil & political freedom in India. They suffer from poverty & starvation & all these happen as a result of their particular social group “farmers from Rajasthan”.
Although the visa application said in relation to the applicant’s personal reasons for leaving India: “I’ll provide this later”, no details were ever given to the Department of Immigration. A delegate refused the application on 19 May 2007, and a letter was sent to the applicant and his agent advising them of this on 21 May 2007.
On appeal, no details of a refugee claim were given to the Tribunal in writing or with any supporting evidence, but the applicant attended a hearing by video link from the Griffith police station on 10 August 2007. He was subsequently sent the tapes of the hearing, but has not presented a transcript to the Court.
According to the Tribunal’s description, the applicant claimed that, although he was aged 23 and had only five years of schooling, he had never worked for a living, but had been supported by his father who owned land but did not farm it. He claimed that he had a problem in his village with people of the Jat caste, he being a member of the Mali caste. He told the Tribunal that he personally had been harassed and beaten up and admitted to hospital, and that the Jats had pursued him to Jaipur when his father sent him there.
He gave unclear evidence as to why he had been targeted by Jats, telling the Tribunal at one point that they had been indecently assaulting the female members of his family, and that he was the eldest son in the family, which was why he personally was being harassed. The Tribunal put to him its concerns about his claims, and also whether they revealed a Convention reason for the persecution he claimed to have encountered.
In its decision handed down on 27 September 2007, the Tribunal affirmed the delegate’s decision. Its primary reason was that it did not accept that the applicant was telling the truth about the claimed difficulties of his family with the Jats. In particular, it did not believe that he had been beaten up, resulting in a hospital admission, nor that he had been pursued by the Jats to Jaipur. It did not accept that there was a real chance that if he returned to India the Jats would kill him as he claimed.
The Tribunal gave an alternative reason, which was that the problems which he had claimed did not “bear the necessary connection with one of the five Convention reasons” when they are read with s.91R(1)(a) of the Migration Act 1958 (Cth).
The Tribunal also addressed the two contentions put by Mr Solaiman in relation to the whole of the group. It did not consider that problems of poverty and starvation in Rajasthan had arisen from any Convention reason, nor that a group of “farmers from Rajasthan” were treated differentially from other members of Indian society for reasons of their membership of that particular group. The Tribunal considered that as a citizen of India the applicant did have civil and political freedom.
The Tribunal said that the applicant’s evidence that he would feel embarrassed if he had to return to India after his father had raised money to assist his travel to Australia did not bring the applicant within the definition of “refugee”.
The applicant’s present application to the Court asks that the Tribunal’s decision should be set aside, and the matter remitted to the Tribunal for further consideration. It has been set down today to consider whether it raises an arguable case for the making of these orders. The applicant has been sent a referral for free legal advice from a solicitor, but the contact telephone number he gave to the Court did not allow the solicitor to communicate with him.
The applicant has not filed any documents in addition to his original application. It contains the following as its purported grounds:
1.The RRT denied proper application of law to the applicant.
2.The RRT denied natural justice to the applicant.
3.The RRT did not follow due procedure.
These contentions are entirely unexplained in any material before the Court, and the applicant himself was unable to explain an argument as to why the Tribunal might have failed to comply with any legal requirement.
I am unable to find any meaningful or arguable ground of jurisdictional error raised by the applicant’s application, and I consider it appropriate to dismiss the application under r.44.12(1)(a).
I note that when invited to address the Court today, the applicant said that he had paid $700 to his agent, Mr Raymond Solaiman, who told him that he would file the necessary documents in the Court. I infer from this that Mr Solaiman is the author and presenter of the documents filed on behalf of the applicant. They are similar to other documents which I have seen filed on behalf of other members of the indoor cricket team. In his statements to me, the applicant seemed to assume that the documents filed by Mr Solaiman would procure him success in the present application. However, as I have indicated they are far from sufficient documents, even if they had been filed by a legal practitioner and had been accompanied by a certificate under s.486I of the Migration Act. In this case, as in SZLOY v Minister for Immigration & Anor (No.2) [2008] FMCA 450, I propose to refer this judgment to the District Registrar for transmission to an appropriate authority.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 19 June 2008
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