SZOOE v Minister for Immigration
[2010] FMCA 803
•14 October 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOOE v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 803 |
| MIGRATION – RRT decision – Indian fearing persecution as Sikh activist – did not attend Tribunal hearing – no arguable case – application dismissed at show‑cause hearing. |
| Federal Magistrates Court Rules 2001 (Cth), r.44.12 Migration Act 1958 (Cth), ss.426A, 476 |
| Applicant: | SZOOE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1685 of 2010 |
| Judgment of: | Smith FM |
| Hearing date: | 14 October 2010 |
| Delivered at: | Sydney |
| Delivered on: | 14 October 2010 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the Respondents: | Ms E Warner Knight |
| Solicitors for the Respondents: | Australian Government Solicitor |
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 $2,935.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1685 of 2010
| SZOOE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant is a young man who arrived in Australia at about the age of 20 in May 2009. On 1 December 2009 he applied for a protection visa. No assistance was disclosed in the application. He attached a three-page typed statement, explaining why he claimed to fear persecution if he returned to his country of nationality, India.
The applicant said that he was an active member of the All India Sikh Student Federation and a supporter of the Shiromani Akali (A) Party based in Amritsar. He claimed to have been actively supporting “the political welfare of the Sikhs communities”, including by calling public meetings, delivering speeches and becoming a member “of the central committee of my party within my own circle.” He claimed to have created “a student’s wing throughout Punjab for our party”, and that the Indian authorities regarded him as a supporter of the Khalistan movement. He said that he was arrested with other colleagues, mistreated, and held for three months. He lost his business during that time, and was accused of being a Pakistani agent by his political opponents. He claimed that he later was arrested again, and said that “we had no alternatives to survive in India, we decided to flee from the country”. He referred to other friends who had made similar applications for protection.
No supporting corroboration of these claims was provided, nor details of the events involving the applicant. The applicant did not attend an interview with the delegate, of which he was notified by registered post, and he made no contact with the Department.
The delegate of the Minister made a decision on 17 March 2010 refusing the visa. The delegate identified some circumstances raising doubts about the applicant’s claimed fears, and concluded:
On the available information I consider that there is no real chance that the applicant would face persecution if he returns to India.
The applicant appealed to the Refugee Review Tribunal. It invited him to provide details of the periods of arrest, the mistreatment, and the false cases lodged against him. The applicant responded to that invitation in a letter which said he could not recall details, and which only repeated the contents of the statement attached to the visa application.
The Tribunal then invited the applicant to a hearing on 30 June 2010. Its letter was sent by registered post to the address which at all times had been given to the Department and to the Tribunal, and indeed which has also been given to the Court as the applicant’s address for service. The documents before me suggest that the invitation complied with the requirements of the Migration Regulations and Act. No challenge to the circumstances of the sending of the invitation has been raised by the applicant in these proceedings.
Under s.426A(1) the Tribunal had power to proceed to make a decision without taking any further action, in circumstances where an applicant fails to attend in response to such an invitation. The applicant did not attend the appointed hearing, and he made no contact with the Tribunal.
The Tribunal then made a decision on 6 July 2010, affirming the delegate’s decision. The Tribunal said:
The evidence is too general in nature and lacking in detail as to claimed past events to be seen as reliable. The applicant has not taken an opportunity to provide further detail. While there is evidence of a continuing commitment among members of the Shiromani Akali Dal (Amritsar) to pursue action for the establishment of an independent Sikh homeland, the Tribunal is not satisfied that the applicant is person identified with that group as he has claimed, nor that he has ever suffered harm as a result as he has claimed.
On the evidence available to it, the Tribunal is not satisfied that the applicant is a person who has a real chance of experiencing harm for any reason should he return to India, either at the present time or in the foreseeable future. The applicant is not, therefore, a person owed protection obligations by Australia under the Refugees Convention. Neither has he claimed to be a member of the same family unit of a person owed protection obligations. This being the case, he cannot satisfy the prescribed criteria for the grant of a Class XA visa and he must be refused the grant of such a visa under s.65 of the Act. The delegate’s decision to this effect should be affirmed.
It is clear from its statement of reasons that the Tribunal had read the two statements presented by the applicant in support of his refugee and review applications.
The applicant applied to the Court on 4 August 2010 seeking orders setting aside the Tribunal’s decision and remitting the matter for further consideration. He also seeks an order that “The applicant may kindly be allowed to remain in Australia”. However, the Court has no such power by way of substantive relief.
The application sets out its grounds as follows:
1.That the applicants case was not assessed as per the directions laid down by the handbook of the UNHCR, rather a different formula was laid down by the respondents. The Applicant has satisfied criterion as required by the law laid down by the UNHCR, the applicant has fulfilled the key elements of being a refugee, the RRT has failed to address the legal issues, as such there is a error of law.
2.That the RRT failed to consider the evidence as per the law in force for the determination of the refugee status, hence therefore there is a breach of law. This amounts to the error of law and the jurisdictional error is clear in the orders of the respondent number two RRT.
3.Orders sought by Applicant.
At the First Court Date on 7 September 2010, I set the application down for hearing today under Federal Magistrates Court Rules r.44.12, to consider whether an arguable case was raised for relief able to be given by the Court under s.476 of the Migration Act. The applicant was given an opportunity to consider the relevant documents, to obtain advice from a free legal advisor, and to file an amended application and submissions. He was warned that his application would be dismissed today if I were not satisfied that it raised an arguable case.
The applicant filed a written submission purporting to be an amended application, which makes some criticisms of the decision of the delegate, but any such criticisms would be irrelevant to a consideration of the validity of the Tribunal’s decision.
Otherwise, the amended application repeats the requests in the originating application, that the Court itself should decide the merits of the applicant’s refugee claims. However, as I pointed out to the applicant, this is not its function.
I have considered the assertions of error of law and failure to consider evidence made in the original application, but am unable to identify any arguable basis upon which those contentions could succeed.
The first sentence of ground 1 is obscure. However, it is misconceived if it is suggesting that the Tribunal should follow the UNHCR handbook in disregard of the qualifications for a protection visa set out in the Migration Act. In relation to those, I am unable to detect in the Tribunal’s reasoning any arguable misunderstanding of law by the Tribunal or failure to address an issue posed for its determination in the review.
The Tribunal essentially rejected the claim because it was not satisfied of any risk of harm to the applicant for any reason, whether Convention related or otherwise, if he returned to India. It made no arguable error by proceeding in that manner.
In relation to the assertion in ground 2 that there was a failure to consider evidence, there is no arguable substance to that contention that I can see.
The applicant had no submissions to make to me today when invited to make oral submissions.
I am not satisfied that the application has raised an arguable case for the relief claimed, and I am satisfied that it is appropriate to dismiss the application pursuant to r.44.12(1)(a) of the Federal Magistrates Court Rules.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate:
Date: 25 October 2010
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