SZATT v Minister for Immigration - [2004] FMCA 639

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZATT v MINISTER FOR IMMIGRATION

[2004] FMCA 639

MIGRATION – Review of RRT decision – where applicant claims to have a well-founded fear of persecution for convention reason of religion – where applicant was involved in a revenge attack on Hindu community – where applicant fears Hindu community will seek retribution if he returns and police will fabricate evidence against him – where applicant alleges the Tribunal told him there was no need for him to submit evidence – where applicant did not provide the Court with any evidence of what occurred at Tribunal hearing – where applicant failed to particularise how the Tribunal fell into jurisdictional error – whether findings and reasons of Tribunal decision evidence jurisdictional error or lack of procedural fairness.

Judiciary Act 1903 (Cth)
Migration Act 1958 (Cth), s.427(1)

VCAK of 2002 v MIMA (2004) FCA 459
WAGJ of 2002 v MIMA [2002] FCAFC 277
W389/01A v MIMA (2002) 125 FCR 407

Applicant:

SZATT

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ1086 of 2003

Delivered on:

2 September 2004

Delivered at:

Sydney

Hearing date:

2 September 2004

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

Applicant in Person

Counsel for the Respondent:

Mr J A C Potts

Solicitors for the Respondent:

Clayton Utz

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1086 of 2003

SZATT

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of India who arrived in Australia on

26 October 2001. On 26 November 2001, he lodged an application for a protection (Class XA) visa with the Department of Immigration Multicultural and Indigenous Affairs. On 21 May 2002 a delegate of the Minister refused to grant the protection visa and on 19 June 2002 the applicant applied for a review of that decision. The Tribunal advised the applicant that it could not make a favourable decision upon the information before it alone and offered him the opportunity of a hearing, which he took.
On 29 April 2003, the Tribunal determined to affirm the decision not to grant a protection visa and it handed down its decision on 21 May 2003. I should state here that, before the matter was determined by the delegate, a letter had been written to the applicant putting to him certain country information concerning the situation in India and requesting his response.
The applicant's claim to have a well-founded fear of persecution for the Convention reason of religion arises out of the fact that he is a Muslim living in Tamil Nadu. He told the delegate and the Tribunal that in September 2001 some inter-faith clashes took place in his home town. He was a shop-keeper there. He told that someone had set fire to the house next door to his shop. He recognised the person and was aware that he was a Hindu. He told the Tribunal that his Muslim neighbour beat up the Hindu who he thought was responsible for setting fire to his house and then a large mob returned with the Hindu person. The mob then set fire to all the houses and shops in the area including the applicant's shop. Although the applicant was not in his shop at the time, his father was, and he was injured. The riot lasted about two hours.
What happened next was that the applicant and his friends decided to attack the low-caste Hindu colony which was situated nearby, but by the time that the mob reached there, the inhabitants had vanished. They were unable to beat them up, so they burnt down their houses. The police were called, but the instigators ran away, some were arrested, but the applicant managed to avoid capture. Those that were arrested were released on bail.
The applicant told the Tribunal that he is afraid that, if he returns to Tamil Nadu, the Hindus will kill him and the police will fabricate evidence against him. He fears he will be detained under the Prevention of Terrorism Act and, inferentially, will be maltreated whilst in custody.
The country information put to the applicant by both the delegate and the Tribunal involved the constitutional status of India, its commitment to a pluralist society, its adherence to the rule of law and the impartiality of its judiciary. After hearing the applicant and discussing his claims with him, the Tribunal came to the conclusion that he was fleeing prosecution of a law of general application and found that there was no evidence that the criminal laws were being applied discriminately or selectively against Muslims.
The Tribunal noted that the applicant had admitted that he was part of a mob which had committed what was clearly a criminal assault upon the property of other citizens. The Tribunal found that the applicant did not face a real chance of being persecuted for reasons of his religion or for any other Convention reason should he return to India now or in the reasonably foreseeable future.
The applicant filed an application under the Judiciary Act 1903 and Migration Act 1958 with this Court on 16 June 2003 seeking review of the Tribunal's decision. He set out four grounds for that application. The first ground was:
RRT refused to grant protection visa. I think RRT did not review my application properly. I have got true information about my genuine refugee application.
When the matter came before me this morning, the applicant told me that he had told the Tribunal that he had a lot of evidence to submit but was told by the Tribunal that there was no need to produce such evidence. He said that the whole hearing before the Tribunal was over in an hour and he only received one tape. This statement could be construed as either an entirely new ground of appeal or as an articulation of ground one.
It would be more generous to the applicant to consider it as the latter so that it could not be said against him that he had thought of a new ground at the last moment. However, the applicant suffers from the difficulty that over a year ago orders were made requiring him to file and serve any amended application and any evidence upon which he proposed to rely by 1 November 2003. He did not do so. I have no evidence of what happened before the Tribunal. I have no transcript.
I have no affidavit from the applicant telling me what the information was that he wished to give the Tribunal or why it would have been relevant. I note there is nothing in the Tribunal's decision about an attempt to provide evidence or any rejection of evidence. Insofar as this ground raises the possibility that the applicant was not provided with procedural fairness, I am not satisfied that he has established that ground. If the applicant is now saying that he has further information which would convince a Tribunal that his application was a genuine one, being information that he did not put before the Tribunal, then this has regrettably come too late.
The second ground was in the following form:
I strongly believe that there may be some errors of law and the RRT Member did not take into account my genuine claim properly.
The applicant has failed to provide the Court with any clues as to the errors of law that he believes the Tribunal fell into, nor has he told us in what way the Member failed to take account of his genuine claim. At a guess, he is arguing that the Tribunal wrongly defined his actions, but that is a matter of fact which is the Tribunal's responsibility, and even if wrong it would not ground a jurisdictional error.
The third ground is:
The RRT Member overlooked my fear of persecution without any investigation.
To the extent that this ground asserts some obligation on the Tribunal to investigate the applicant's claims, the Tribunal was under no duty to investigate, nor under any duty to consider utilising such permissible statutory powers as it had which might enable it to investigate, eg, s.427(1)(d) of the Migration Act: VCAK of 2002 v MIMA (2004) FCA 459 at [27]; WAGJ of 2002 v MIMA [2002] FCAFC 277 at [21], [24] – [25]; W389/01A v MIMA (2002) 125 FCR 407 at [74] – [78]. I am unable to find any jurisdictional error in this alleged failure.
The final ground is:
Present minority situation under the BJP Coalition Government in India all over. Part of the country Muslim minority are always persecuted. I was the victim of religious persecution.
This is a statement of fact and not a ground of review. As the applicant is self-represented, I carefully read the decision and reasons for decision as well as the information contained in the court book. It is quite clear to me that the Tribunal accepted the evidence of the applicant but, for the reasons given, came to the view that his complaints were not Convention-related. In coming to that view, the Tribunal rightly considered independent country information that had been provided to the applicant and upon which the applicant had been asked to comment.
The Tribunal took into account the applicant's own admissions concerning his activities. The reasons for decision are well argued and thorough. I am unable to find within them any grounds to assert a jurisdictional error. In all the circumstances, I must dismiss this application, which I do. I order that the applicant pay the respondent's costs, which I assess in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 23 September 2004