SZMQX v Minister for Immigration & Anor [2009] FMCA 111 (5 February 2009)

Last Updated: 19 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMQX v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 111

MIGRATION – Application for review of RRT decision – where applicant essentially seeking merits review.

SZDFZ v Minister for Immigration & Anor [2008] FCA 390

Applicant:

SZMQX

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2153 of 2008

Judgment of:

Raphael FM

Hearing date:

5 February 2009

Date of Last Submission:

5 February 2009

Delivered at:

Sydney

Delivered on:

5 February 2009

REPRESENTATION

For the Applicant:

In person

Solicitors for the First Respondent:

DLA Phillips Fox

ORDERS

(1) Application dismissed.
(2) Applicant to pay the First Respondent’s costs assessed in the sum of $4,000.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2153 of 2008

SZMQX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of India. He arrived in Australia on 11 December 2007. He applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on 24 January 2008. On 20 March 2008, a delegate of the Minister refused to grant a protection visa and on 11 April 2008 the applicant applied for a review of that decision from the Refugee Review Tribunal. The applicant attended a hearing before the Tribunal which on 11 July 2008 determined that it would affirm the decision not to grant a protection visa. The Tribunal's decision was handed down on 31 July 2008.
2. The ground upon which the applicant claimed he was a person to whom Australia owed protection obligations, was that he was a Hindu activist and some time member of the RSS in his home state of Kerala. He claims that he was involved in the Babri Mosque incident in which a group of Hindu extremists destroyed an Islamic mosque causing a considerable amount of inter-racial tension in the subcontinent. As a result of this activity the RSS was eventually banned in India.
3. The applicant claimed that his family had a history of Hindu activism and in 1987 his father had been murdered because of his involvement. The applicant claimed that because of religious problems in his state he was unable to complete his commerce degree and was required to become a small shopkeeper. He claimed that he continued to be the subject of threats from Muslims and in 1998 felt that he was obliged to leave the country and to take up employment in Bahrain. He worked in Bahrain for four and a half years before returning to India in 2003.
4. When he returned to India he married and remained in the country for a period of about six months before returning to Bahrain. He came back to India in February 2007. He said that in June 2007 he travelled to Singapore and Malaysia to seek asylum but he was told that Singapore did not accept asylum seekers and so he returned to India. He says that in July 2007 he was involved in a motor vehicle accident when he was driving his grandmother to hospital. He says that the motor vehicle accident, which was a severe one and led to the death of his grandmother and injuries to himself, was deliberately brought about by Muslim extremists. He says that he reported the matter to the police but nothing was done about it.
5. The Tribunal considered the evidence given by the applicant including the oral evidence of two witnesses one of whom lived in India and the other who lived in Bahrain. In regards to the witness in India, the Tribunal reports:

“He stated that it was difficult for the applicant to live in India. The applicant feared harm following from his involvement in the Babri Mosque incident. The witness could not recall when this incident took place.” [CB 100]

6. The Tribunal put to the applicant certain independent country information concerning the situation in India and in particular, noted the existence of religious strife between Muslims and Hindus and the efforts being made by the Indian government to prevent such strife from causing harm and distress to innocent citizens.
7. In its findings and reasons the Tribunal accepted that the applicant may have been a member of the RSS and may have taken part in the Babri Mosque incident in 1992. It accepted that there were religious tensions between Hindu and Muslim groups and it was possible that his father did die following an outbreak of communal violence in his area in 1987 and that the applicant's shop might have been damaged in the same way in 1994. But the Tribunal was not able to accept that the applicant has been subject to ongoing threats or that he is currently a target of Muslim extremists who are intent on killing him upon his return to India.
8. It was in regards to these claims that the Tribunal came to the conclusion that the evidence was unconvincing:
   • “When asked at the hearing for more detail as to who he believed was attempting to kill him the applicant was unable to elaborate beyond a general reference to Muslim extremists. He stated variously that persons would attempt to harm him in secret and that rich and well connected Muslims wish to harm him and that his mother receives phone calls asking about his whereabouts.” [CB107]
9. The Tribunal concluded that the applicant's evidence concerning the motor vehicle accident in July 2007 was unable to indicate anything more than that he had been involved in a car accident. The Tribunal was unable to be satisfied that the incident was an attempt upon his life by Muslim extremists. The Tribunal considered the applicant's general claim of discrimination against Hindus and pointed out that Hindus represented approximately 80 per cent of persons living within the subcontinent and it could not accept that Hindus were not given equal employment opportunities or the same rights as Muslims and Christians. The Tribunal also considered the question of whether or not the applicant could avail himself of adequate state protection in the event of any attack by Muslims and concluded from the basis of the independent country information that he could.
10. In an amended application filed in this Court on 18 November 2008 the applicant has set out two grounds for asserting that the Tribunal had fallen into jurisdictional error in the manner in which it reached its conclusions. The first ground merely asserted the matters that the Tribunal had accepted. It makes no direct allegation of a jurisdictional error. The second ground claims that the applicant gave adequate evidence to the Tribunal that he was physically assaulted and that he had provided evidence to the Tribunal that a friend of his who had been with him in the Babri Mosque incident had been killed by Muslim criminals. He argued that the member failed to consider his genuine claim.
11. In regard to this complaint the Tribunal stated at [CB 108]:
    • “The applicant provided to the Tribunal several graphic photographs of persons who had been decapitated and maimed. When asked about these photographs the applicant claimed that they were photographs of associates of his killed by Muslim extremists after the applicant had come to Australia. The applicant also provided newspaper articles about the killing of a certain person who he said he knew. However, while the Tribunal accepts that these photographs are photographs of persons brutally killed, they do not establish that the persons depicted are associates of the applicant or were people killed by Muslim extremists. The Tribunal does not place weight upon them as establishing that the applicant faces such harm on his return to India. Nor does the Tribunal place weight on the newspaper article as establishing the applicant faces harm on his return to India.”

The Tribunal is the finder of fact in these matters and whilst it may have been a jurisdictional error not to consider the evidence put forward by the applicant it is not a jurisdictional error to come to a conclusion about it which the applicant finds inimicable: SZDFZ v Minister for Immigration & Anor [2008] FCA 390 at [40] per Flick J.

12. Before me today the applicant essentially repeated his claims to be a person to whom a protection visa should have been granted. He provided me with certain additional evidence concerning a phone call that had been made by the driver of the motor vehicle which killed his grandmother. He said that this driver had told the responders, who ever they may have been, that it was not their intention to injure the grandmother but merely to kill the applicant. This evidence was not before the Tribunal and is, therefore, unable to be taken into account by me in this application. The applicant also told me that he had not been provided with legal advice pursuant to the Minister’s Scheme as he had requested. There does appear on the file an invoice from the provider of that legal advice but the applicant denies it ever having been given. I propose to have this matter investigated by the Court but in the mean time would note that the provision of legal advice is a privilege and not a right. The failure to provide legal advice for a hearing in this Court cannot be held to be a jurisdictional error on the part of the Tribunal.
13. In the circumstances, I am unable to find any grounds upon which the Tribunal fell into jurisdictional error in the manner in which it came to its decision. I dismiss the application. I order that the applicant pay the respondent’s costs which I assess in the sum of $4,000.00.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 18 February 2009