SZNHS v Minister for Immigration - [2009] FMCA 873

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNHS v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 873

MIGRATION – Review of decision of RRT – where applicant’s grounds institute a request for merits review.

Migration Act 1958, s.424A(3)(a)

Applicant:

SZNHS

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 542 of 2009

Judgment of:

Raphael FM

Hearing date:

20 August 2009

Date of last submission:

20 August 2009

Delivered at:

Sydney

Delivered on:

20 August 2009

REPRESENTATION

For the Applicant:

Applicant in person

Counsel for the Respondent:

Mr D. Tynan

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $4,400.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 542 of 2009

SZNHS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of India who arrived in Australia on 28 June 2008 and applied to the Department of Immigration & Citizenship for a protection (Class XA) visa on 6 August 2008. On 24 August 2008 a delegate of the Minister refused to grant him a protection visa and on 17 November 2008 he applied for review of the delegate’s decision from the Refugee Review Tribunal. The Refugee Review Tribunal held a hearing which the applicant attended and on 18 February 2009 determined to uphold the decision of the delegate. That decision was handed down on 19 February 2009.
The grounds upon which the applicant claimed he was a person to whom Australia owed protection obligations were that he was a Muslim resident of Adirampattinam, a town in the State of Tamil Nadu. He had been born in that town and remained there throughout his life. The applicant claimed that he was a member of the HIA which he had joined in 2001. He also claimed to be a district secretary of the PMK. He said that in 2004 the HIA and the Muslim community were given land to build a mosque but after they had been given the land they ran into difficulties with members of the local community and the local council. It would appear that the HIA successfully sought an injunction to prevent any hindrance in the use of the mosque. The applicant claimed that in June 2007, after protest action by Muslim community members, a person known as Gunasekeran from a Hindu temple, organised members of the RSS, the Hindu front of the BJP, to attack important members of the HIA. A group of gunmen came to the applicant’s home and made threats against him and his family because he was deputy chairman of the HIA. In September 2007 the applicant travelled to Chennai where he was found and beaten by five members of the RSS. He said he complained to the police but no action was taken. He said that he later visited Mumbai, Delhi and Calcutta where BNP and RSS supporters tried to kill him.
The applicant claimed that in May 2008, a group led by Gunasekeran demolished houses and huts in which low caste persons had been living for a lengthy period. The applicant tried to assist them but the police would not listen. When the applicant and some other people returned they were met by Gunasekeran and his group and a fight broke out in which the applicant was injured and was hospitalised. After that the applicant decided that he could no longer remain in India and was determined to travel to Australia, which he did after spending some months outside his village and in Calcutta.
The applicant provided certain documents by way of evidence. These included a medical certificate dated 19 August 2008, a translated letter from the President of the HIA, a translated letter from the PMK and a membership card and pamphlet of the PMK.
The Tribunal questioned the applicant about his claims. He told that there were only about seven people in the HIA and he had been vice president. His duties were to collect money and to give it to people in order to help build the mosque. In response to questions from the Tribunal he indicated that the mosque had not been completed at the time he left India. However, there were 21 other mosques in Adirampattinam which was a town with a majority Muslim population.
The Tribunal questioned the applicant about the attack which took place in Chennai in September 2007. He told the Tribunal that he had been attacked by five men with rods and taken to hospital where he was kept for a month. The Tribunal expressed some concern as to why he should remain in hospital for that lengthy period when his injuries only appeared to be related to his shoulder. The applicant told the Tribunal that he had fallen foul of Mr Gunasekeran over problems that he had caused that man because of his illegal sale of liquor. The Tribunal indicated that problems arising out of this would not have a convention nexus.
The Tribunal put to the applicant certain independent country information concerning India and in particular that it was a longstanding democracy with an effective police and judicial system. There were also a number of human rights bodies in India and Tamil Nadu which provided non-discriminatory assistance to persons who have problems with the police or the court system. The Tribunal also raised with the applicant independent country information concerning the availability of false documents from India.
In its findings and reasons the Tribunal accepted that the applicant was a Muslim from Adirampattinam and that he had been a member of the HIA and was involved in raising funds towards the building of a mosque:
“Whilst I accept that he had some involvement in this organisation I consider that his role was minor and I do not accept that he attracted any adverse attention from Gunasekeran or other religious or political groups for reasons of his involvement in this organisation”.
The Tribunal accepted that there may have been a dispute between the HIA and members of the town council regarding the building of the mosque. It came to the conclusion that that dispute arose from land ownership issues between the community and not for reasons of religion or any other convention-related reason. It noted that in any event it had taken the dispute through the legal system with a successful outcome. The Tribunal had taken into account a letter from the president of the HIA but concluded that the applicant would not face any chance of mistreatment or harm for reasons arising out of his involvement.
The Tribunal did not accept that the applicant was attacked in Chennai by colleagues of Gunasekeran in September 2007. It thought that his account was vague and lacking in detail and implausible and was particularly concerned about the alleged lengthy stay in hospital. The Tribunal then considered whether the applicant was at risk of harm just because he was a Muslim and noted that India had a large Muslim population and that the town of Adirampattinam had a majority Muslim population with a large number of Islamic institutions. It did not think that the applicant would face any persecution now or in the reasonably foreseeable future if he returned there.
The Tribunal then considered the applicant’s claims arising out of his association with the PMK. It referred to independent country information which seemed to indicate that the PMK was in fact in political association with the DMK which was the party that Mr Gunasekeran belonged to. In any event the Tribunal concluded that the applicant was probably not a member of the PMK because:
“[78] When questioned about the party, the applicant knew little about the personnel, structure and policies of the PMK and I would have expected if he had been an office bearer he would have demonstrated a greater knowledge of these matters. The evidence given at hearing is not consistent with the information in the membership documents and as raised at hearing I have considered the independent information which indicates that it is relatively easy to obtain false document in India.”
Finally, the Tribunal considered the problems that the applicant was having with Mr Gunasekeran and his RSS associates arising out of the charitable work that the applicant was doing, in particular the advocacy of the group of people living in the salt line area:
“[80] When pressed, he stated that Gunasekeran wanted the land however he was not able to provide specific details of this incident. He claimed that Gunasekeran was involved in an illegal business and that the applicant objected to this illegal business. I found his explanation to be irrational and implausible. It may be, and I accept that the applicant had a dispute with Gunasekeran over business and civil matters in Adirampattinam which may have resulted in the applicant being threatened by a group of men associated with Gunasekeran in May 2008. However, I do not accept that the attack was for reasons of his religion, his political opinion or his charitable work. I have not given any weight to the medical certificate provided by the applicant. The applicant may have been involved in an incident in May 2008 in which he was injured. However, I do not accept that it was Convention related.”
On 15 June 2009 the applicant filed an Amended Application with this court. He also filed an Outline of Submissions on 7 August 2009. He told me that these documents had been prepared by a friend.
The grounds of application are threefold:
“1.The Tribunal failed to provide me [with] notice under section 424A of the Migration Act that:
(i)I have considered the independent information which indicated that it is relatively easy to obtain false documents in India.”
The respondent submits, and I accept, that this ground cannot be maintained because of the provisions of s.424A(3)(a) of the Migration Act 1958 (the “Act”) which excludes from the provisions of s.424A independent country information of this type.
The second ground is:
“2.The Refugee Review Tribunal failed to put weight to the documents that I supported before the Tribunal in support of my claim:
Particulars:
I have not given any weight to the medical certificate provided by the applicant. The applicant may have been involved in an incident in May 2008 in which he was injured. However, I do not accept that it was Convention related.”
The Tribunal certainly considered the documents to which the applicant referred. In his submissions of 7 August 2009 he refers not only to the medical certificate, but also to the letters that I have previously mentioned. The Tribunal considers these and discusses them at [CB 96, 99, 100 and 105] but the weight to be attached to documents is really a matter for the Tribunal and for the court to substitute its views of the weight the documents would amount to impermissible merits review I am therefore unable to assist the applicant in this regard.
The third matter is that:
“(3)The Refugee Review Tribunal failed to realise the reality of chance of persecution in the context of applicants’ particular circumstances:
Particulars:
There was no evidence to support the Refugee Review Tribunal’s finding that it did not accept that the applicant faced a real chance of persecution for reasons of religion, political opinion, membership of any particular social group, or any Convention-based reason should he return to India now or in the foreseeable future.”
In the submissions this is referred to as the Tribunal acting in excess of its jurisdiction and it is said that the Tribunal made a wrong assumption about the applicant’s persecution in India. But the argument put forward in that paragraph is an argument about facts and about the applicant’s claims. It is not an argument that goes to the Tribunal’s jurisdiction. It is, as the respondent suggests, an invitation to provide an impermissible merits review.
The applicant appeared before me today. He told me that the outline of submissions which had been filed on his behalf constituted his claims in the matter and that he had read the respondent’s outline of submissions filed on 10 August 2009. When I asked him if he had anything that he wished to tell me about his claim he proceeded to outline the factual nature of the claim for protection. He did not address the possibility that the Tribunal had fallen into jurisdictional error. In my view the Tribunal dealt with this matter in accordance with law and did not fall into jurisdictional error in the manner in which it reached its conclusions. I dismiss the application. I order that the applicant pay the first respondent’s costs which I assess in the sum of $4,400.00.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 8 September 2009