SZMPN v Minister for Immigration

[2008] FMCA 1702

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMPN & ANOR v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1702

MIGRATION – Review of decision of RRT – no particulars of claims provided – no requirement for court to guess.

Migration Act 1958 (Cth), ss.422B, 424A

Abebe v The Commonwealth (1999) 197 CLR 510

First Applicant: SZMPN

Second Applicant: SZMPO

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2021 of 2008

Judgment of: Raphael FM

Hearing date: 11 December 2008

Date of Last Submission: 11 December 2008

Delivered at: Sydney

Delivered on: 11 December 2008

REPRESENTATION

For the Applicants: In person

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. Application dismissed.

2. The Applicants pay the First Respondent's costs assessed in the sum of $2,700.00 to be payable by both Applicants.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2021 of 2008

SZMPN

First Applicant

SZMPO

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicants are citizens of India who arrived in Australia on 30 November 2007 and applied to the Department of Immigration and Citizenship for protection (Class XA) visas on 4 January 2008.  On 28 March 2008 a delegate of the Minister refused to grant protection visas and on 11 April 2008 the applicants applied for a review of that decision from the Refugee Review Tribunal.  The Tribunal invited the applicants to a hearing on 17 July 2008 which the male applicant attended, the female applicant having only completed part D for a person who does not have their own claim to be a refugee.  On 27 June 2008 the Tribunal determined to affirm the decision under review and handed that decision down on 17 July 2008.  The male applicant's claim to be a person to whom Australia owed protection obligations is contained in a document entitled "Claim letter" annexed to his PVA [CB 32-33].

2. He told how he lived in Mumbai and worked in the cloth manufacturing business.  He had gone into partnership with another man who he claimed was a member of the Congress Party but who had suggested to him that he joined the BJP.  After the bombing of trains in Mumbai one of the workers at the factory was arrested by the police and the applicant became involved in the police enquiries into the bombings.  The applicant claimed that he was threatened by anti-social elements.  One night coming back home he was attacked by people on bicycles, he was injured and had to visit the doctor.  He was frightened to return to India because he thought the people who attacked him might kill him.  He was frightened to go to the police.  The delegate considered the applicant's claims and referred to independent country information concerning the bomb blasts in Mumbai but was unable to verify any instance of a bomb blast on a Mumbai train followed a few days later by a bomb blast in Thane as suggested by the applicant in his claim letter.  The delegate reported that there was no evidence that suggested that members of the community generally associated with any of the suspects of the train bombings were brought under suspicion or of involvement or complicity in the crimes.  The delegate also dismissed the applicant's claims that he would fear from members of the Congress Party.  Finally, the delegate noted that if the 2006 bombings in Mumbai were those referred to by the applicant in his claims then it was significant that he remained in India for a further 16 months after this event without adverse incident. These are the matters that were clearly in issue when the applicant attended before the Tribunal.  He told the Tribunal about his political involvement:

   “[32]When asked if he belonged to any political organisation he stated that in 2005 he joined the BJP.  He stated that neither he nor his family had a history of political involvement.  He stated that neither he nor his family had a particular interest in politics but that he had joined the BJP at the behest of his business partner who was himself a member of the Congress Party but who wanted to know what was happening in the BJP so asked the applicant to join the BJP and keep him informed.” [CB 76]

   The Tribunal questioned the applicant on what he feared by way of serious harm should he return to India:

   “[35] The applicant stated that he believed he was used as a pawn by his partner and also by a worker who was involved in the bomb blasts of a train in Mumbai in July 2006.  He stated that the worker was a Muslim and was arrested and there was an enquiry and he thought he was implicated in the incident.

   [36] The Tribunal asked the applicant who he thought wished to harm him on return to India; the applicant stated that thugs were out to get him.  When asked if he could be more specific about whom those thugs were the applicant stated he did not know their names.”   [CB 76]

3. The applicant told the Tribunal he was also concerned that his business partner wished to take revenge on him because the business had closed down.  The Tribunal in its turn told the applicant that it found his oral evidence to be confused and vague and could not accept that he was recounting true events.  The Tribunal also expressed some concern as to whether the claims he was making had any Convention nexus particularly as the applicant had told it that he only joined the BJP at the behest of his partner and not out of any real interest.

4. In its findings and reasons commencing at [CB 77] the Tribunal, whilst accepting that the applicant was a Hindu from Mumbai working in the clothing industry, did not accept any involvement by himself or any associate in the bombings in Mumbai in 2006.  The Tribunal did not find the applicant to be credible and thought his evidence was evasive and shifting.  The Tribunal found that the applicant's oral and written evidence as to who he believed wished to harm him and their motivation for such to be most unconvincing.  It found evidence about the link between the claimed arrest of an employee following a bomb attack on the train and threats of harm to the applicant were most unclear.

   “[51] Also as discussed with the applicant at the hearing the applicant could not elaborate in a meaningful way as to approaches he had made to the Indian authorities in respect to his claimed threats nor did he provide an explanation as to why he could not avail himself of the protection of the Indian authorities in respect to his claimed  fear of future harm over and above the general statement that his business partner had contacts in the government.” [CB 78]

5. On 6 August 2008 the applicant filed an application in this court seeking review of the decision of the Tribunal. He claimed that the Tribunal's decision was in breach in s.424A(1) of the Migration Act 1958 (the “Act”) by not disclosing certain information being,

   “(a)    Independent evidence PP6.

   (b)     US Department of State country report 2002 PP5.

   (c)      The Indian Central Bureau of Investigation PP6.”

6. I have looked carefully through the court book and I am unable to find any reference to any of these documents in the report of the delegate or of the Tribunal or elsewhere and it appears that in all probability the person who completed this form on behalf of the applicant included this ground in error.

7. The second ground of application was that the Tribunal made an error of law and lacked procedural fairness. The applicant has provided the court with no particulars of the error or the lack of procedural fairness that he alleges although I note that this case is one to which the provisions of s.422B of the Act would appear to apply. Without particulars the court cannot assist the applicant.

8. Finally, the applicant asserts that the Tribunal made a denial of natural justice because it failed to provide him further time to produce other evidences.  There is no indication from the Tribunal's grounds and reasons that it was ever asked for further time to produce additional evidence and in the absence of a tape or a transcript I am unable to take this complaint any further.

9. Before me today the applicant said that the Tribunal made a statement that, "he should return to India and if something went wrong it could be their responsibility."  Once again the court has no evidence of this statement apart from the applicant's assertion and no understanding of the context within which the statement was alleged to have been made.  It may have been made in an explanation of a country's responsibilities under the convention but there is no necessity for me to hazard a guess because the responsibility is upon the applicant to satisfy me that the Tribunal made an error of law and this quotation does not do that; (Abebe v The Commonwealth (1999) 197 CLR 510).

10. The grounds upon which the Tribunal declined to accept the application were based upon credibility findings which are those of the Tribunal “par excellence.”  I am unable to see that the Tribunal fell into jurisdictional error in the manner in which it came to this conclusion.

11. I dismiss the application.  I order that the Applicants pay the First Respondent’s costs which I assess in the sum of $2,700.00 to be payable by both Applicants.

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

Associate: 

Date: