SZMCS v Minister for Immigration - [2008] FMCA 931

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMCS v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 931

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.424A

Applicant:

SZMCS

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 806 of 2008

Judgment of:

Driver FM

Hearing date:

7 July 2008

Delivered at:

Sydney

Delivered on:

7 July 2008

REPRESENTATION

The Applicant appeared in person via telephone

Solicitors for the Respondents:

Mr G Johnson
DLA Phillips Fox

INTERLOCUTORY ORDERS

The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,400.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 806 of 2008

SZMCS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal handed down its decision on 11 March 2008. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant is from India and had made claims of religious and political persecution. He arrived in Australia on 18 July 2007 and applied to the Minister's Department for a protection visa on 27 August 2007. The Minister's delegate refused that application on 23 November 2007. On 21 December 2007 the applicant applied to the Tribunal for a review of the delegate's decision.
The applicant was invited to and attended a hearing before the Tribunal on 12 February 2008. At that hearing the Tribunal considered the applicant's claims and expressed concern about many of them. Among other things, the Tribunal expressed concern that the applicant had left India in 2004 but did not seek protection until he arrived in Australia until 2007. The Tribunal records that it was arranged with the applicant to provide responses to the Tribunal's concerns in writing. That was done on 19 February 2008. In its decision the Tribunal accepted that the applicant is a Hindu and accepted that he may have been involved with Hindu political groups while a university student. However, the Tribunal did not accept the applicant's claims of serious threats of harm between 2000 and 2004. In addition, the Tribunal did not consider that the applicant's actions were consistent with having a fear of persecution. The Tribunal noted that the applicant chose to live in the same village for four years and left his mother, children and wife at the family home. The Tribunal commented that it was difficult to believe that he would have made no effective arrangements to protect his family, for example, by moving them away from the area. The Tribunal also was concerned that the applicant did not seek protection until 2007, although he left India in 2004.
These proceedings began with a show cause application filed on 4 April 2008. That application raises the following grounds of review:
1. That the Tribunal erred in its finding when it concluded “The Tribunal finds that [the applicant] could safely return to India. It is satisfied that he does not have a well founded fear of persecution in India for the Convention reasons of his religion or his political opinion.
2. That the Tribunal fully misdirected when it found to the effect – “He has not claimed to fear persecution for any other Convention reason”. The Applicant vehemently state[s] that this finding by the Tribunal was completely against the Applicant’s Written Claims and Evidence recorded by the Tribunal during the hearing.
The applicant continues to rely upon that application. I received an affidavit he filed in support of the application. I also have before me as evidence the court book filed on 14 May 2008. The applicant told me that he did not have a copy of the court book and that it was with his panel advisor. I note that the court correspondence file records that Mr Mark Tarrant provided advice to the applicant on 16 May 2008.
The Minister's response filed on 17 April 2008 asserts that the application is an attempt at impermissible merits review. That was confirmed in the applicant's oral submissions. Essentially, the applicant contends that his claims should have been accepted. He orally asserted that he was confused in his written claims but, as was pointed out by the solicitor for the Minister, those written claims were made after the hearing, at the invitation of the Tribunal. The Tribunal was entitled to take into account inconsistencies between the applicant's oral evidence to the Tribunal and his subsequent written claims to the Tribunal. The applicant has not asserted any breach of s.424A of the Migration Act 1958 (Cth) and no such breach is apparent to me.
The applicant submits that the Tribunal was wrong in finding that his family was safe and that he would be safe as well. The court book records[1] that the applicant said at the hearing that his wife and children had not been threatened by local Muslims before he left India. The Tribunal asked the applicant to explain why they too had not been perceived as Hindu fundamentalists given his previous evidence that the household in which they lived was perceived as a Hindu fundamentalist one. He responded that “they do not threaten women in our religion”. The Tribunal reminded the applicant that those issuing the threats, according to him, were not members of his religion. He responded that women were rarely harmed in his village. The Tribunal asked him if he was saying that he was not concerned about the safety of his wife, children and mother at the time he left India. He responded that his brother's family lived nearby to look after them. Invited to state where his brother lived, he said that he lived 120 kilometres away. The Tribunal put to him that given the distance his brother could have provided his family with little protection. He said that the friends in the village helped.
[1] page 126
In my view, the Tribunal's conclusions[2] about this evidence were open to it on that evidence. Even if the applicant is right, and that the Tribunal in some way misunderstood his evidence, that would merely amount to an error of fact within jurisdiction.
[2] court book, page 129
The applicant asserts in his second ground of review, in effect, that the Tribunal overlooked an element or integer of his claims. However, the applicant was not able to point to any element or integer of his claims that was overlooked. The applicant confirmed twice in his oral submissions that his claims were based wholly on his religion and his political opinion. It follows that he cannot dispute the Tribunal's statement that he had not claimed to fear persecution for any other Convention reason.
I conclude that the show cause application fails to disclose an arguable case of jurisdictional error. Neither is any arguable case of such error apparent to me on my own reading of the material.
Accordingly, I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $2,400. Scale costs in this instance would be $2,500. The applicant was concerned to ensure that no other cost payment would be required, but he did not otherwise make submissions as to costs. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application fixed in the sum of $2,400.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 8 July 2008