SZNQM v Minister for Immigration - [2009] FMCA 796

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNQM v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 796

MIGRATION – RRT decision – Brazilian national with fear of persecution – Tribunal found fears of Convention persecution not to be well‑founded – no arguable case for judicial review – application dismissed at show‑cause hearing.

Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a)

Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553

Applicant:

SZNQM

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1326 of 2009

Judgment of:

Smith FM

Hearing date:

11 August 2009

Delivered at:

Sydney

Delivered on:

11 August 2009

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms L Weston

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $2,935.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1326 of 2009

SZNQM

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 2008 on a tourist visa. On 24 November 2008 he made an application for a protection visa, unassisted by any migration agent. The application form contained an unclear history, upon which the applicant sought protection in Australia against return to Brazil, his country of nationality and birth.
The applicant claimed that he and his relatives in Brazil had encountered threatening behaviour, and he referred to various incidents where they had been affected by criminal activities. He referred to a card fraud on himself, in which money was stolen from his account and was later reimbursed by the bank. He also narrated an incident shortly before coming to Australia, in which he witnessed lawless activity by “traffickers”.
The applicant made unclear claims to have tried to get protection from authorities in Brazil, who would not help him. He said: “my life does not mean anything to the authorities in my country. The level of violence is very high in all aspects”. He suggested that the “military” might kill him. He also referred to incidents while he was studying in London in 2003, and recently in Australia, which had made him feel that he was “subjected to psychological torture”. The applicant presented various documents to the Department of Immigration to illustrate his concerns, and he was interviewed by a delegate.
The delegate made a decision on 17 January 2009 which refused the protection visa application. The delegate said that “the harm that he fears does not appear to have nexus to the five Convention reasons”, and “the harm he fears is a result of non‑selective phenomenon”.
The applicant appealed to the Tribunal, and attended a hearing on 18 March 2009. In its statement of reasons, the Tribunal carefully recited what had happened at the hearing. The theft of the applicant’s money was discussed, and the incident where traffickers had closed the street when the applicant was walking to a coffee shop. He told the Tribunal that “everyone was threatened. There was shooting. The applicant was there for about 40 minutes. He took a taxi and went to his home”. When the Tribunal asked the applicant if he had any specific trouble with the police or the government authorities “the applicant stated that outside that context ‘no’. He attended university, studied and worked. He was not arrested. He was not detained”.
The applicant maintained, however, that the government was trying to persecute him, and was doing so “about his opinion there”. The applicant explained to the Tribunal his opinions that in Brazil “the system is terribly corrupt” and “the justice system is not working”. He told the Tribunal that he had expressed these opinions when talking with friends at university or work.
The Tribunal made a decision on 28 April 2009, affirming the decision of the delegate. In its “Findings and Reasons”, it said that it had “some concerns about the mental health of the applicant”. However, it said that it was satisfied that “that the applicant was able to give competent evidence at the hearing and did so”. On the evidence which was before the Tribunal, and which is now before me, I can see no basis for concluding that the applicant was denied a meaningful opportunity to present to the Tribunal his relevant history, and to explain to it the basis for his fears of returning to Brazil (cf. Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553 at [33]‑[37]).
In my opinion, the Tribunal’s statement of reasons show that it very carefully set out and examined all the evidence which the applicant had presented, both to the Department and to it. The Tribunal carefully analysed the events which had happened to the applicant and his fears, to see whether past events established that he was a person to whom the Refugees’ Convention applied. That is, whether he had a “fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion”, and whether such a fear was shown to be “well‑founded”.
The Tribunal concluded that “there is no evidence that the applicant has been singled out or persecuted for one or more of the five Convention reasons”. It clearly did not accept the applicant’s contention that it was the government which had stolen the money from his bank account. The Tribunal found positively that the applicant had not been persecuted for a Convention reason, and that “the applicant has not been targeted or isolated by the Brazilian authorities”, nor by any other of the groups to whom the applicant pointed.
The Tribunal noted that “the applicant perceives threats in a number of everyday occurrences and items, including graffiti and the wrong date on a digital photograph”. However, clearly the Tribunal did not accept that these matters provided evidence in support of the applicant’s claims. The Tribunal accepted that he had a perception of “ongoing persecution and victimisation”, but on the evidence it found that there had not been such persecution.
The Tribunal accepted that the applicant had expressed views that the political system in Brazil was corrupt and the judicial system did not work. However, it said that it was not satisfied that the applicant had been threatened or persecuted for expressing or holding those views. It found positively that “the applicant has not been persecuted for reasons of his political opinion”.
It concluded that there was not a real chance that the applicant would suffer serious harm amounting to persecution if he returned to Brazil. It was not satisfied that he had a well‑founded fear of being persecuted for a Convention reason if he returned to Brazil, and found that he was not a refugee.
The applicant now asks the Court to set aside the Tribunal’s decision and to send the matter back to the Tribunal. His application has been set down today to consider whether it raises an arguable case for the making of these orders. He has been given an opportunity to file an amended application and evidence, after receiving a bundle of relevant documents and a referral for free legal advice. However, he has not filed any additional documents.
I have explained to the applicant that the Court has power to give relief only if it is satisfied that the Tribunal’s decision is affected by jurisdictional error. The Court does not have a power itself to decide whether the applicant is a refugee, nor whether he should be given permission to stay in Australia.
The applicant completed his application to this Court in a manner which does not identify any arguable jurisdictional error. It contains the following contentions:
I’d like the Federal Magistrates Court, give me positive decision for my case, my argument is true.
Long time I wait for justice.
Australia is this place, have justice.
Right human “the universal nature of human rights and freedoms is beyond question”. “The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.”
The affidavit in support states:
Authority in my country prosecution me and all my friends and family. I can’t work or to be normal social life. The military stolen my friends and my family, I am completely isolated, and torture too.
However, in my opinion, the application is essentially asking the Court to assess for itself whether he is a refugee and should stay in Australia. It has not identified any aspect of the Tribunal’s procedures or reasons which might show that it did not perform its jurisdiction to make that decision. It therefore does not present me with any grounds for setting aside the Tribunal’s decision.
The applicant today recognised that the Tribunal’s decision was based on the absence of evidence. He was unable to raise an arguable case in support of his application for judicial review.
For the above reasons, I consider it is appropriate today to dismiss the application pursuant to r.44.12(1)(a).

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 18 August 2009