SZMWB v Minister for Immigration & Anor [2009] FMCA 128 (16 February 2009)

Last Updated: 26 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMWB v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 128

MIGRATION – RRT decision – Indian fearing persecution for imputed membership of political group – disbelieved by Tribunal – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth)

Applicant:

SZMWB

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2703 of 2008

Judgment of:

Smith FM

Hearing date:

16 February 2009

Delivered at:

Sydney

Delivered on:

16 February 2009

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the First Respondent:

Mr T Reilly

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

(1) The application is dismissed.
(2) The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2703 of 2008

SZMWB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant came to Australia in May 2007. He arrived at Cairns on a three-day transit visa, en route to Papua New Guinea. However, he travelled to Hilston, and since that time has given a residential address in Hilston and a post office box at Kogarah.
2. The applicant did not apply for a protection visa until 20 March 2008. His application said that it was prepared without assistance. It gave the shortest of answers to questions as to why he feared return to India. He said that he had left the country because of political persecution, and because “the local administration is completely against me. They will get me arrested and I will not be treated lawfully”. The application said: “documents will later be provided depending on the needs and after it is completely assessed by the advisor. Including those, possible documents will be country information, evidence of individual claims and also legal arguments.”
3. However, no further material was forwarded to the Department of Immigration, and a delegate made a decision on 6 May 2008 refusing the protection visa. The delegate said that he was unable to determine that the applicant's fears were related to any of the reasons covered by the Refugee's Convention, because of the absence of relevant facts supplied by the applicant. The delegate also pointed to the applicant's delays in making a protection visa application.
4. The applicant appealed, and again did not appoint a representative. He attended two hearings convened by the Tribunal on 11 July 2008 and again on 8 August 2008. The applicant has not submitted a transcript of what was said at either hearing, but the Tribunal gave a detailed description in its statement of reasons, and I have no reason not to accept it.
5. The Tribunal sufficiently summarised the applicant’s refugee claims which were elicited after extensive questioning:
   • Essentially, the applicant’s claims are that he was arrested in January 2000 and June 2001, as he had minded a bag for his friend, Mr K, and the bag contained firearms and ammunition, and Mr K was a leader in the Khalistan Movement. The applicant is a Hindu and has never had any involvement with the Khalistan Movement but he was suspected of being an associate of Mr K by the police and also by unknown persons who harmed the applicant’s father in 2006. The applicant’s family had to pay a bribe or fine for the applicant’s release in 2000 and 2001 and this caused the family financial problems, as they had to sell their house.
6. At the second hearing, the applicant tendered a statement from his village leader which purported to corroborate some parts of his claims. According to the Tribunal, it discussed with him at the second hearing various aspects of his claims which it had had difficulty with. It put to him country information suggesting that the Khalistan Movement was a movement of Sikh separatists and “as the applicant is Hindu, it is difficult to know why anyone would have thought that he was involved in the Khalistan movement”. It also put to him concerns about his claim not to have known about making a protection visa, and about the truthfulness of his claims.
7. The Tribunal handed down a decision on 11 September 2008 affirming the delegate's decision. In its findings and reasons, the Tribunal explained why it had “serious concerns about the credibility of the applicant's evidence regarding his personal circumstances and the events in India in 2006, which led to his departure from India and which form the basis of his protection claims”.
8. The Tribunal referred to the unsatisfactory manner in which the applicant had given evidence about his claims. It said they were presented “in a piecemeal way”, with responses which were both “vague and inconsistent” and appeared to be embellishments in the course of the hearing.
9. The Tribunal did not accept that the applicant had any association with a person who was a member of the Khalistan Movement. It did not find credible that he would have been released twice after paying a bribe, if he was really suspected of being a person with an association to that movement. It found his claims to have been visited by police after the second arrest highly improbable if, as he had told the Tribunal, he had continued to live in his village until he left for Australia.
10. The Tribunal considered the document given to it by the applicant, but gave it no weight after taking into account its concerns about the applicant's credibility. The Tribunal accepted that the applicant's father had a lower leg amputated, but found that the applicant's account of how this had happened in 2006 was not credible. It said that it was “highly implausible” that the applicant’s father would have been assaulted many years after the events involving the applicant's claimed assistance to Mr K.
11. The Tribunal also took into account the applicant's delay in making the protection visa, and the fact that he had lived in Hilston at an address with other people who had lodged protection visa applications. This had been put to the applicant previously.
12. Because the Tribunal did not accept that the applicant's claims were credible, it did not accept that he would be involved in or provide support to the Khalistan Movement if he returned to India, nor that he would be perceived by authorities as a terrorist or Sikh militant if he returned to India. It did not accept that he was a person to whom Australia has protection obligations under the Refugee's Convention.
13. The applicant's application asks the Court to set aside the Tribunal's decision and to remit the matter. I have power to do this only if the Tribunal's decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant should be believed, nor whether he qualifies for a protection visa or any other permission to stay in Australia.
14. The applicant was represented at a First Court Date by a solicitor, Mr Jack Singh, who remained on the record until 31 December 2008 when he filed a notice of ceasing to act. However, no amended application or written submissions have been filed by the applicant or his solicitor, and he relies upon grounds set out in his original application:
    • 1. The Tribunal did not observe procedures that were required by the Migration Act or the Regulations to be observed in connection with the making of the decision.
      • Its treatment of Applicant’s claim that that the Tribunal member did not consider the facts described in the applicant’s statement.
      • Its Treatment of claim that the Tribunal member did not follow the rules of natural justice and the merits of the case. Natural Justice was not adopted and applied for by the Tribunal.
      • Its treatment of the claim that Tribunal did not adopt the proper legal procedure or follows the Guidelines and rules while deciding the case.
      • Its treatment of the applicant’s claim that the decision involves an error of law being incorrect interpretation of the applicable law or an incorrect application of the laws to the facts as founded by the Tribunal.
    • 2. The Tribunal did not have jurisdiction to make the decision.
15. In my opinion there is no merit in these contentions. The first dot point under ground 1 is falsely premised, since the applicant never presented a “statement” of his own in support of his refugee claims. It is clear that the Tribunal did consider the affidavit of the village leader which was submitted at the second hearing.
16. The second, third and fourth dot point under ground 1 do not provide any particulars of the allegations of failure of natural justice or “the proper legal procedure” or “an error of law being incorrect interpretation of the applicable law or an incorrect application of the law”. I cannot give them any meaningful application to the present matter.
17. Ground 2 is similarly unexplained.
18. The applicant himself did not attempt to explain these contentions today, but addressed the Court only about his concerns that he had not been able to obtain a permission to work in Australia.
19. I have taken into account the submissions by the Minister's counsel, and accept his submission that the Tribunal's decision is not affected by any jurisdictional error. It is therefore a privative clause decision, and I must dismiss the application.

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

Associate: Michael Abood

Date: 24 February 2009