SZOHJ v Minister for Immigration
[2010] FMCA 564
•21 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOHJ v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 564 |
| MIGRATION – Review of decision of RRT – no grounds made out. |
Migration Act 1958, s.422B
| SZFDE v Minister for Immigration [2007] HCA 35 |
| Applicant: | SZOHJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 705 of 2010 |
| Judgment of: | Raphael FM |
| Hearing date: | 21 July 2010 |
| Date of Last Submission: | 21 July 2010 |
| Delivered at: | Sydney |
| Delivered on: | 21 July 2010 |
REPRESENTATION
| For the Applicant: | In person |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $3,700.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 705 of 2010
| SZOHJ |
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 15 February 2009 and applied to the Department of Immigration & Citizenship for a protection (Class XA) visa on 25 March 2009. On 5 June 2009 the delegate refused to grant a protection visa and on 3 July the applicant applied for a review of that decision from the Refugee Review Tribunal. The applicant attended a hearing before the Tribunal following which he was provided with an opportunity to submit further information. On 8 March 2010 the Tribunal determined to affirm the decision not to grant the applicant a protection visa and handed the decision down on the same day.
The applicant’s claim to be a person to whom Australia owed protection obligations arose out of his political views as an ethnic Tamil from the state of Tamil Nadu. The applicant claimed in his application [CB 27] to be a member of the DMK which he said was a prominent political party upholding the interests of the state of Tamil Nadu. He said he was an office bearer and a member of the party’s Tiruvarur District Committee. The applicant claimed that on 28 December 2007 he was attacked by political opponents and that he was hospitalised for two weeks after that attack. He feared that he would be killed if he ever went home. He says that he made several reports to the police but to no avail. The applicant said that the attack occurred because he was walking with a person who was involved in the Babri Mosque incident.
The Tribunal questioned the applicant upon his submissions. It noted that the Babri Mosque incident had occurred on 6 December 1992 and queried why the applicant would be attacked as a result of walking with a person involved in that incident (which had taken place in northern India) so many years afterwards. The applicant then told the Tribunal that the person was a member of the BJP.
The applicant provided the Tribunal with copies of letters that he had written to the police about this incident [CB 72]. The Tribunal noted that that letter, if it had ever been sent, made no reference to the fact that the applicant was attacked because he walking with a member of the BJP. In any event:
“[104]The origin and provenance of the letter is a greater matter of concern to the Tribunal. The Applicant told the Tribunal that the letter did not exist until after he came to Australia. By this evidence it cannot possibly be a copy of a letter written to the police on 15 January 2008. The Applicant gave confused and inconsistent evidence as to whether he was the author of the letter. He said that he signed it and also said that it was not his signature on the letter. He said it was sent to him here from India.
[105]On the evidence before it, the Tribunal finds that it cannot rely on the Applicant’s “15 January 2008” letter. It is not what it purports to be and it describes facts that the Applicant, for no good reason, says he withheld from the police at the time: facts that describe a completely different reason for the alleged attack.”
A matter that the Tribunal took up with the applicant in some detail was the name of the organisation which he claimed to be a member of. Although the applicant’s PVA had said he was a member of the DMK he produced documents which indicated that he was a member of the AIDMK which the Tribunal, utilising independent country information, found to be a completely different party and one that was opposed to the DMK:
“[67]The Tribunal reminded the Applicant that he claimed to be a member of the DMK. He confirmed this. The Tribunal pointed out that the documents he submitted in support of his claims said that he was a member of the “AIDMK” or as was put in those documents, the “All India Dravida Munneta Kazakam.
[68]The Applicant told the Tribunal that these parties are one and the same.
[69]The Tribunal put to the Applicant that this did not appear to be the case. The Tribunal indicated to the Applicant that its interim perception to this effect was based on information in a range of sources including newspapers and a range of local commentaries.”
The applicant told the Tribunal that he first felt the need to flee India for protection was after the incident on 28 December 2007. The Tribunal noted that the applicant had indeed left the country after that, he had gone to Cambodia for 10 days but he then returned voluntarily to India before making a first journey to Australia. He made no application for a protection visa on this first visit to Australia. He then returned to India from Australia before travelling back again on 15 February 2009.
The Tribunal concluded that it could not accept the applicant’s claims about his membership of the AIDMK and stated at [CB 89 – 90]:
“[112]The Tribunal put the Applicant on notice as to its concern about his claimed party the DMK not evidently being the same party as the AIDMK. He did make post-hearing submissions but he did not argue his point about the DMK being the same party as the AIDMK. He simply changed from calling his party the DMK to calling it the AIDMK.
[113] In the light of the Applicant’s insistence, during the hearing, that he was a member of the DMK, in light of the Applicant’s inconsistency about when he joined his party, where he suggested that in January 2008 he only renewed his existing membership, and also in the light of the unreliability of the “15 January 2008” letter, the Tribunal finds it can place no reliance on the photocopy of the purported membership certificate.
[114]On the evidence before it, the Tribunal does not accept that the Applicant was implicated in any attack or act of violence on 28 December 2007.
[115]Considering the evidence before it in totality, the Tribunal does not accept that the Applicant was a member of or a worker for any political party in India.”
On 31 March 2010 the applicant filed an application for review of the decision of the Refugee Review Tribunal in this court. He gives three grounds of application. The first is:
“The decision made by RRT is jurisdictional error.”
No particulars of the jurisdictional error are provided. And it does not behove the court to put words into the mouth of the applicant by seeking to interpret what that vague assertion really referred to. Suffice to say, having considered the Tribunal’s decision in its totality, I am unable to see any obvious jurisdictional error into which the Tribunal may have fallen.
The second ground is:
“Breach of natural justice.”
This case is one to which the provisions of s.422B Migration Act 1958 (the “Act”) apply. The applicant would have to particularise the breach of the provisions of that code to which he is referring. None has been given although the applicant had an opportunity to do so following the directions hearing in this court. Again, the court cannot guess at what the applicant might have intended by that phrase.
The final ground was:
“Will be filed later.”
The court is not aware of any later filing. Before me today the applicant told that he obtained assistance from a Sri Lankan to fill in his PVA. He explained the situation to the Sri Lankan but he says that the Sri Lankan got it wrong. He wrote the DMK when he should have written the AIDMK. This may be the case but the applicant was given an opportunity before the Tribunal to correct the situation. The Tribunal’s decision record, from which I have quoted, is the best evidence of what occurred at the hearing that is before me. There is reference to these matters at [67 - 69] and [71] and again at [112]. If the Tribunal fell into a state of confusion (which I do not believe) it was a result of information provided to it by the applicant himself.
In these circumstances I am unable to assist the applicant in that claim. I also note that to the extent that the claim might suggest fraud on the Tribunal of the type considered by the High Court in SZFDE v Minister for Immigration [2007] HCA 35 I note that the court said at [53]:
“The significance of the outcome in this appeal should not be misunderstood. The appeal has turned upon the particular importance of the provisions of Div 4 of Pt 7 of the Act for the conduct by the Tribunal of reviews and the place therein of the ss 425 and 426A. In the Full Court French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made[66]. The outcome in the present appeal stands apart from and above such considerations.”
To the extent that the outcome of this applicant’s review may have been affected to his detriment by the negligence of his amanuensis this does not permit a review from this court.
I dismiss the application. I order that the Applicant pay the First Respondent’s costs assessed in the sum of 3,700.00.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 3 August 2010
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