SZMKQ v Minister for Immigration
[2008] FMCA 1287
•3 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMKQ v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1287 |
| MIGRATION – RRT decision – Indian claiming 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), ss.424A(1), 424A(3)(a), 424A(3)(b) |
| Dissanayake v Minister for Immigration & Multicultural Affairs [2002] FCA 976 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 Win v Minister for Immigration & Multicultural Affairs (2001) 105 FCR 212 |
| Applicant: | SZMKQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1563 of 2008 |
| Judgment of: | Smith FM |
| Hearing date: | 3 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 3 September 2008 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr R Baird |
| Solicitors for the Respondents: | Clayton Utz |
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 $2,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1563 of 2008
| SZMKQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant arrived in Australia in December 2007, and on 8 January 2008 he lodged an application for a protection visa. A brief handwritten statement explained why he feared to return to his country of nationality, India.
He said that he had been working in his father’s business in Mumbai which was “doing very, very good”. He received telephone demands for money, but when he told the nearest police the names of the people who made demands, they were scared. He said he also received threats of death from these people, and in April 2007 “they came at my shop with guns and killed one of my servant. I received a call from my father about what was happened in my shop and then I rushed to the police”. At the police station, however, the police accused him of being the assassin and suggested personal motives for that. His statement said that the police took money and let him go. He again received threats from the extortionists, and “I went to Delhi” and then came to Australia.
A delegate refused the application on 22 January 2008 on the ground that “the applicant’s fears are essentially related to matters that can be best described as private and criminal in nature and not related to any of the reasons enumerated in the Refugees Convention”. The delegate also thought that there was no evidence that the Government of India was unwilling or unable to afford protection to the applicant.
The applicant appealed. He did not respond to written invitations to comment on two points, nor did he provide additional information requested in writing by the Tribunal. However, he did attend a hearing held by the Tribunal on 8 April 2008. The applicant was later sent a sound recording of the hearing, but has not presented a transcript to the Court.
According to the Tribunal, the applicant gave significantly inconsistent evidence about what had happened to him, and was also unable to elaborate on many matters. He said that the killing of the employee had occurred about eight to nine months previously, and had been discovered by the applicant when he went to the victim’s house to inquire about his absence from work. He said that “the police did not want to hear about it”. He claimed that the demand for protection money and the murder had occurred because the applicant and his family were Muslims, who were successful in their shop in a Hindu area. He also made a new claim that there was a politician related to the BJP Party who controlled the underworld and the people who were responsible.
According to the Tribunal’s description of the hearing, it put to him a number of its concerns, including the fact that he had only presented a Convention reason for his fears after receiving the delegate’s letter.
The Tribunal handed down a decision on 27 May 2008, affirming the delegate’s decision. It said that it found the applicant not to be a witness of credit because his evidence was vague and lacking in detail. His evidence differed from his written statement accompanying the visa application, and was itself inconsistent in relation to some matters. The Tribunal explained these points and, based on its adverse opinion of his credibility, did not accept any of the claims as true. It thought that the applicant had therefore not established that he was a refugee. The Tribunal concluded that the applicant would not face a real chance of persecution if he returned to India.
The applicant now asks the Court to set aside the Tribunal’s decision and to remit the matter for further consideration. His application has been set down today to consider whether he has raised an arguable case for making these orders. He was given the opportunity to receive free legal advice, but declined that opportunity. He has, however, taken the opportunity to file an amended application after receiving a bundle of relevant documents.
The grounds of the original application do not disclose any arguable case. In the first ground, he makes an unexplained contention that the Tribunal made jurisdictional error because it found that the applicant was not a witness of credit due to the differences between his claims made originally and then to the Tribunal. However, in my opinion that reasoning by the Tribunal undoubtedly shows the performance of its jurisdiction, not the contrary.
Grounds 2, 3, 4, and 5 in the original application allege mistakes, and “wrong” conclusions and findings by the Tribunal. However, these criticisms do not, in my opinion, reveal any arguable jurisdictional error, but argue only with the merits of the Tribunal’s factual conclusions.
The applicant’s amended application contains a number of grounds:
1.The Tribunal decision ‘Findings and reasons’ not properly justified by the Migration Act 1958. The Tribunal reject my claims without considering my oral evidence in relation to major issues. The Tribunal did not treat this matter as a s424A issue as I brought the statement submitted in connection with the protection visa application to the Tribunal to ensure that it was before the Tribunal.
2.The Tribunal failed to consider an integer of the Applicant’s claim, in failing to consider whether or not a liberal Muslim (regardless of their specific claims of affiliation or past persecution) in India was at risk of harm from radical Hindus, and not able to access effective protection.
3.The Tribunal member failed to consider all the material readily available and/or accessible and the Member continued an erroneous approach to my claims and failed to address my mind to the material questions arising out of those materials.
4.My appeal is that The Refugee Review Tribunal exceeded its jurisdiction or constructively failed to take in to account relevant consideration of my well founded fear of persecution for being a Muslim. The Tribunal has accepted my family currently making a living out of the family business, but has failed to take into account the well‑founded fear of my persecution I experienced prior to departure from India.
5.The Refugee Review Tribunal denied the applicant procedural fairness by reaching adverse conclusion that first applicant was not a credible witness, being conclusions that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.
7.[sic]The Tribunal has failed to investigate my claims, specially the grounds of persecution in India. Therefore, the Tribunal’s decision dated 6 May 2008 was effected by actual bias constituting judicial error.
Therefore the applicant submits that the Tribunal failed to analyse properly the “future harm” the applicant may face if he has to go back to India.
Hence, due to this failure, the Tribunal had committed a serious jurisdictional error by failing to assess or carry out the ‘real chance’ test, before dismissing the applicant’s claim.
In Grounds 1, 3 and 4 there are unparticularised contentions that the Tribunal did not consider the applicant’s oral evidence nor “all the material readily available”, nor “relevant consideration”. However, I can find no substance for these contentions. The Tribunal, in my opinion, clearly identified the claims made by the applicant, and addressed them with reference to relevant evidence.
The contention in Ground 1 that the Tribunal did not invite the applicant to make written comments pursuant to s.424A(1) of the Migration Act 1958 (Cth) has no apparent merit, in my opinion. The Tribunal’s reasoning was based upon an assessment of the evidence given to it by the applicant and upon some general country information concerning India. This information was not required to be put to the applicant under s.424A(1) (see s.424A(3)(a) and (b)). To the extent that the Tribunal’s reasoning drew from a comparison of the manner in which the applicant presented his claims, both originally and to the Tribunal, this did not involve reliance upon “information” coming within s.424A(1) on the interpretation of that provision to be taken by the High Court in SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at [18].
Ground 2 of the amended application alleges a failure to consider an integer of the applicant’s claim, being “whether or not a liberal Muslim … in India was at risk of harm from radical Hindus”. However, I cannot identify in the material any point at which the applicant suggested that he was at such a risk, nor even where he put himself forward as a “liberal Muslim”. The Tribunal was not obliged to address claims which were not made to it (see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [62], and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441 at [1], [28] and [31]). In my opinion, there is no arguable basis for a contention that the Tribunal failed to address any element in the applicant’s claims which he in fact made to it.
Ground 5 alleges a denial or procedural fairness of the type identified in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152. However, no particulars of this contention are provided by the applicant in his amended application nor in any written or oral submissions. It appears to me on the Tribunal’s description of the hearing that it clearly brought to his attention its significant concerns reflecting on his credibility. I can see no arguable basis for this ground.
Ground 7 contains several elements. It fails to particularise its argument that the Tribunal failed to investigate claims. As I have indicated, the Tribunal addressed the refugee claims which were before it. It is well established that it is not obliged to conduct its investigations beyond a consideration of the evidence presented by an applicant (see Dissanayake v Minister for Immigration & Multicultural Affairs [2002] FCA 976 at [18]; and Win v Minister for Immigration & Multicultural Affairs (2001) 105 FCR 212 at [15]).
I can find no support at all in the material before me for a contention of actual bias.
In relation to the second element in Ground 7 of the amended application, the Tribunal clearly addressed whether the applicant would be at risk of any harm if he returned to India, and earlier referred to relevant authority concerning the real chance test. Since it rejected the credibility of the applicant’s claimed history of persecution, I can discern no arguable error arising from how the Tribunal applied those authorities to the evidence before it.
The applicant attended today, but had no submissions to make to me at all.
In my opinion, the application fails to raise an arguable case for the making of the relief it claims, and it is appropriate to dismiss the application under r.44.12(1)(a).
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 15 September 2008
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