SZMLF v Minister for Immigration
[2008] FMCA 1317
•9 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMLF v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1317 |
| MIGRATION – RRT decision – Indian fearing persecution for membership of political group – disbelieved by Tribunal – no arguable procedural unfairness – no arguable case – application dismissed at show-cause hearing. |
| Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a) Migration Act 1958 (Cth) |
| SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 |
| Applicant: | SZMLF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1626 of 2008 |
| Judgment of: | Smith FM |
| Hearing date: | 9 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 9 September 2008 |
REPRESENTATION
| Counsel for the 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 $2,150.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1626 of 2008
| SZMLF |
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 August 2007, and on 2 October 2007 he applied for a protection visa against return to India. In his application, he set out periods of travel from his home in the Punjab to visit relations in New Zealand for lengthy periods after 2001. The application stated that he was a farmer by profession in India. He had joined the Congress Party in 1983, and had been an active member “at the block level”, participating in general meetings and rallies of the party, and: “I have been made a stronghold in public votes for my area, i.e. (his location’s) constituency, for almost 15,000 to 20,000 votes”.
He claimed that in the February 2007 election for the State Assembly, the candidate for the Akali Dal Party had started threatening him, and had caused him to be “abducted just before election and kept in unknown area during last days of election campaign”. He claimed that the opposing party member had ruined “all my fields which I have left without harvest”, and that he had a grave fear for his life. He also claimed that he had been illegally arrested by police four times, the first being just before the election, and the later times occurring in March, April and June 2007 at the behest of the opposing party member. He claimed that the party wanted to get rid of him, and that his enemies would use their influence “to any extent to harm me even physically”.
A delegate refused the protection visa application on 24 December 2007. The delegate gave three reasons. The first, in my opinion, clearly suggested doubts about the credibility of the applicant's claims. The delegate said:
The applicant has not provided any evidence of his claimed political activity or any periods of detention related to such activity. He has not indicated any politically related problems prior to February 2007 but has provided no explanation of why that would be so in the circumstances he claims. On three occasions in the last four years he has visited New Zealand for stays of nine months or longer. His daughter is married and is now a resident of that country. Most recently he visited that country from February 2006 until January 2007. He has not indicated that he made or considered making an approach to New Zealand Authorities for asylum during any of his visits. It is evident that he would have been back in India only soon before the election of February 2007 and this places doubt on whether, during that brief time, he could have actively campaigned for Congress to a substantially influential degree. In such circumstances I find it doubtful that his political efforts would have been noted by Akali Dal and caused him to be kidnapped in the lead up to polling day, especially as there is no indication that he had previously been a political target of Akali Dal. Also, the fact that he was able to depart the country without difficulty in August 2007 with a passport and visa in his own name is strong indication that he was not of any substantial adverse interest to authorities at that time.
The delegate also said that there was no evidence to suggest that the applicant would not have the practical protection of the Indian state, and also said that relocation to another part of India “is a relevant and reasonable option for the applicant”.
On review by the Tribunal, the applicant attended a hearing held on 26 March 2008. He was subsequently given the audio recording of the hearing, but has not presented to the Court any transcript of what happened. The Tribunal sets out a description in its statement of reasons, which appears to me to be reliable.
According to the Tribunal, it questioned him about his claims, and noted particular concerns and doubts which it had. This included drawing his attention to its doubt that the applicant had been president of a block of voters during the periods that he had been visiting New Zealand, and a warning that his inconsistent account of his kidnapping and arrests “may make the Tribunal doubt his story about the arrests”.
The Tribunal also discussed with the applicant documents upon which he had obtained his visitors visa, some of which appeared inconsistent with his claims. It discussed country information with the applicant which, as the Tribunal informed the applicant, “suggested the situation for Congress Party supporters in Punjab had been relatively calm in recent years”. The Tribunal said that at one point it told the applicant:
the Tribunal may not believe his story and may consider he made the story up and it could mean his application could be refused. The Tribunal gave him the options he could take to give a response or comments and now or later or in writing.
It is unclear from the Tribunal's description whether this warning related to particular concerns which the Tribunal had arising from the visitor visa documentation, or included a general warning. In any event, in my opinion, on the Tribunal's description there is no room for argument that the applicant would not have been made aware in the course of the hearing that the Tribunal might not believe his claimed history of persecution and fear of harm if he returned to India.
On 29 May 2008, the Tribunal handed down a decision affirming the delegate's decision. In its statement of reasons, the Tribunal explained that it did not accept that the applicant had held the elected position of president of his block in 2007, nor that at that time he was an influential member of the Congress Party who could influence voters in his area. The Tribunal said that the applicant's travel from New Zealand to India just a few weeks before the election did not suggest that he returned to India in order to campaign on behalf of the Congress Party. It said that his inconsistent claims about his arrests and detention “led the Tribunal to conclude that they have been fabricated”. The Tribunal did not believe any of the claimed history, and it also said that the independent information “reinforces this conclusion” that his claimed arrest and detention without charge on four occasions had not occurred. The Tribunal, therefore, rejected all the applicant's claims concerning his reasons for departing India. It did not accept that he had suffered any harm in India as a result of membership and activities in the Congress Party, and concluded that he was able to return to live in his home of Punjab State.
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 it raises an arguable case for the making of these orders. The applicant has been given the opportunity to file an amended application and evidence after receiving a bundle of relevant documents and a referral for free legal advice. He has received advice from a member of the legal panel who, it appears to me, is probably the author of an amended application which I shall discuss below.
In the original application, grounds are included which appear to me to be clearly lacking relevance and substance. The contention that the Tribunal applied incorrectly the law in relation to “the seriousness of harm that constitutes persecution” has no relevance to the present Tribunal's reasoning, nor does it appear to me that the applicant made any claim in relation to persecution due to his “religious belief”. I do not consider there is any arguable merit in the grounds in the original application.
The amended application contends that there was a denial of procedural fairness upon the following particulars:
a)The decision of the Delegate of the First Respondent was to the effect that Australia would not owe protection obligations to the Applicant due to his ability to relocate within the country of origin. There was no finding in relations to the credit or reliability of the Applicant’s claim in support of his application.
b)Part of the reason for affirming decision under review was that the Tribunal found that the Applicant had fabricated the entirety of his claims in support of his application.
c)The Applicant was not put on sufficient notice that the entirety of his claims made in support of his would be an issue for the Tribunal in conducting the review.
d)Further or alternatively, the applicant had legitimate expectation that the conduct of the review would be in relations to the issues arising under the decision under review unless put on notice that everything he said in support of his application was an issue.
e)The Applicant was not put on notice that everything he said in support of the application was an issue.
f)Making the decision contrary to legitimate expectation of the Applicant was procedurally unfair.
The argument which is presented in this document appears to rely upon the reasoning of the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152. However, in my opinion, the argument it presents has no prospects of success for several reasons.
It is incorrect to contend that the delegate made no findings in relation to the credit or reliability of the applicant's claims. I have extracted above a paragraph from the delegate's reasoning where, plainly, the delegate did not accept the credibility of the claims made by the applicant. This is clearly not a case, as in SZBEL, where the applicant could have participated in a review proceedings in the Tribunal under a misapprehension that the truth of any aspect of his refugee claims was not in contention. Rather, in my opinion, the converse would have appeared (cf. SZBEL (supra) at [47]).
The argument presented in the amended application does not identify any particular matter which the applicant was inadequately warned was in issue, and I can identify no such matter. As I have indicated above, it appears to me that the essential elements in the Tribunal's reasons for disbelieving the applicant were very fairly put to the applicant in the course of the hearing. I consider that it is not reasonably arguable that the applicant was not on notice that the Tribunal might disbelieve the whole of his refugee claims. In my opinion, it is not reasonably arguable that reasoning of the High Court in SZBEL would have application to the decision of the present Tribunal.
I therefore do not consider that the argument in paragraphs a), b) and c) of the amended application has any prospect of success. Nor, for the same reasons, do I consider that the alternative argument presented in paragraphs d), e) and f) of the particulars raises any other ground of merit.
In his submissions to me today, the applicant suggested that the Tribunal's behaviour during the hearing was "hostile", but he has not presented any evidence to the Court to give any substance to that statement. He also criticised the Tribunal for giving emphasis to his travel to New Zealand. However, in my opinion, the Tribunal's reasoning concerning that travel was plainly relevant to its assessment of his history, and lends no support for any suggested bias or closed mind on the part of the Tribunal or other jurisdictional error.
Taking into account all of the material before me, and all of the applicant's submissions, I am not persuaded that his application raises an arguable case for the relief it claims, and I consider it appropriate to dismiss the application under r.44.12(1)(a).
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 1 October 2008