SZBPB v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 875

FEDERAL COURT OF AUSTRALIA

SZBPB v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 875

SZBPB AND SZBPC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 543 OF 2005

STONE J
17 JUNE 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 543 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZBPB FIRST APPELLANT
SZBPC SECOND APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	17 JUNE 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellants pay the respondent’s costs in the amount of $2,000.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 543 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZBPB FIRST APPELLANT
SZBPC SECOND APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	STONE J
DATE:	17 JUNE 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from the judgment of a Federal Magistrate given on 22 March 2005 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘Tribunal’) made on 22 August 2003 and handed down on 18 September 2003. The Tribunal affirmed a decision of a delegate of the respondent made on 5 November 2002 to refuse the appellants protection visas. On 27 May 2005, Acting Chief Justice Wilcox determined, pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), that the appeal should be heard and determined by a single judge.

   BACKGROUND

2. The appellants are husband and wife and citizens of India.  They arrived in Australia on 18 September 2002 and lodged an application for protection (class XA) visas on 8 October 2002.  The claims for refugee protection are those of the first appellant; the second appellant relying on her membership of her husband’s family.

3. The first appellant claimed to fear persecution on account of his religion (Hindu) and his political opinions, having been a candidate for the BJP party in 2001 local municipal elections in Gujarat, India.  He claimed that he belonged to a long established Hindu family and to be a strong supporter of the Bharatiya Janata Party (‘BJP’) and the RSS, a political organisation in India.  In the application for protection visas, the first appellant claimed to be a ‘businessman’ who was a director of a company from June 1982 until his departure for Australia.

4. The first appellant claimed that before the local municipal election he was pressured to withdraw his candidature.  He claimed that he was threatened with ‘dire consequences’ if he did not do so.  In spite of the claimed threats, the first appellant contested the election, however, he was defeated by the Muslim League Party candidate.  The first appellant claimed that after the election Muslim extremists targeted him and threatened his family with death if he did not close down his business.

5. The first appellant claimed that following the Gujarat train tragedy in early February 2002 his shop was destroyed by fire and he and his wife only survived by going into hiding for a month.  He claimed that despite lodging complaints with the police and senior authorities in Gujarat, no assistance was given to him.  He alleged that his business was completely destroyed and following a serious assault by Muslim League extremists he was hospitalised for two days.  The first appellant also claimed that in August 2002 he was kidnapped by Muslim League extremists, however, he was able to escape.

6. The first appellant claimed that he and his family had considered relocation, however, they believed that because they were on the ‘hit list’ of the Muslim extremists, they would be found sooner or later. 

7. By letter dated 7 July 2003 and addressed to the first appellant, the Tribunal wrote to the appellants advising them that it had considered the material before it in relation to the appellants’ application for review, but was unable to make a decision in their favour on that information alone.  The Tribunal invited the appellants to come to a hearing of the Tribunal on 21 August 2003 to give oral evidence and present arguments in support of their claims.  The letter also stated that if the appellants did not attend the hearing at the time and place noted and a postponement was not granted, the Tribunal could make a decision on their case without further notice.  The letter was copied to the appellants’ migration advisor.

8. In its reasons, the Tribunal noted that no response was received from the appellants or their migration advisor to the letter dated 7 July 2003.  The Tribunal also noted that on 14 August 2003, an officer of the Tribunal attempted to contact the appellants on the telephone number provided in their application for review, however, a recorded message reported that the service had been disconnected.  Also on 14 August 2003, the Tribunal sent a facsimile to the appellants’ migration advisor requesting that he contact the Tribunal in respect of the appellants’ hearing.  The Tribunal’s reasons note that no response was received from the migration advisor.

9. The appellants did not appear before the Tribunal at the time notified in the letter dated 7 July 2003. In the circumstances, the Tribunal decided, pursuant to s 426A of the Migration Act 1958 (Cth) (‘the Act’), to make a decision on the review without taking any further action to enable the appellants to appear.

   THE TRIBUNAL’S REASONS

10. The Tribunal set out the claims made by the appellants in their application for protection visas and their submissions to the Tribunal in their application for review.  The Tribunal experienced difficulty with a number of the first appellant’s claims as follows:

    ‘- The [first appellant] has provided no detailed particulars of the nature and extent of the mistreatment to which he claims to have been subjected;

    -On the data bases readily available to me and from an internet search, I have been unable to find any reference to the “Muslim League Party” in the state of Gujarat.  The only Muslim party with a somewhat similar name listed in the latest British Home Office report on India (April 2003) is the “Indian Union Muslim League” which is said to be concerned with the interests of Muslims in Kerala;

    -According to the independent information…(all of which I accept) the BJP party is the ruling party in Gujarat and that the Hindu community in Gujarat comprises about 88% of the population and the Muslim community only about 9%;

    -Assuming that evidence was produced that satisfied me that…there is a party known as the Muslim League Party in Gujarat, I find it, prima facie implausible, given the strength of the BJP party in Gujarat that Muslim League Party members would target the [first appellant] prior to the Council election in 2001;

    -If the [first appellant] did have trouble with members of the Muslim League Party I have great difficulty accepting that the [first appellant] would not seek the assistance of police.  I find it equally difficult to accept that the Hindu dominated police would not respond to the [first appellant’s] requests for help or would deny the [first appellant] protection;

    -There is no evidence produced by the [first appellant] which satisfies me that the [first appellant] had a high profile in Gujarat as  BJP party functionary such that he would be likely to be targeted by Muslims.’

11. The Tribunal also rejected the first appellant’s claim that he was kidnapped by Muslim extremists in August 2002.  While accepting that, though implausible, it was possible the first appellant’s business premises might have been targeted by Muslims following the riots of February 2002, the Tribunal found that even if the first appellant’s store was destroyed, it was a ‘random act of violence in a time of heightened religious tension and is not Convention based persecution’. 

12. In short, the Tribunal found, in the absence of an opportunity to discuss and test the claims of the first appellant, that it could not be satisfied that he had suffered any mistreatment in the past, nor that he would suffer serious harm in the foreseeable future upon his return to India.  As such, the Tribunal was not satisfied that the appellants had a well-founded fear of persecution for a Convention reason and affirmed the decision of the delegate of the respondent.

    FEDERAL MAGISTRATE’S DECISION

13. On 7 October 2003, the appellants sought judicial review of the Tribunal’s decision in the Federal Magistrates Court.  The Federal Magistrate adopted the submissions of the respondent and held that the Tribunal’s reasons did not contain jurisdictional error.  His Honour dismissed the application.

    THIS APPEAL

14. On 8 April 2005, the appellant filed a notice of appeal in this Court.  The entirely unparticularised grounds of appeal are that the Federal Magistrate failed to find errors of law, jurisdictional error and procedural unfairness.  The notice of appeal also makes reference to a number of cases of this Court and the High Court, however, the relevance of the judgments to the appellants’ circumstances was not apparent and was not demonstrated. 

15. On 4 May 2005, I ordered that the appellants file and serve an amended notice of appeal giving full particulars of each ground of appeal relied on by 18 May 2005.  I further ordered that, should the appellants fail to comply with the above order, the respondent could file a summary dismissal application.  The appellants did not comply with the order to file and serve an amended notice of appeal, however, the respondent did not avail herself of the opportunity to seek to have the proceedings dismissed summarily. 

16. As noted above, the appellants’ notice of appeal is of limited assistance.  Insofar as I understand, the grounds appear simply to take issue with the merits of the Tribunal’s decision.  However, the appellants have been unable to point to any jurisdictional error in the Tribunal’s reasons.  At the hearing of the appeal today, the appellants both appeared and the second appellant indicated that the first appellant was authorised to speak on her behalf.  The first appellant first took issue with the fact that the interpreter at the hearing was interpreting in Hindi, not Gujara as he requested.  The interpreter indicated that she did not have any difficulty with understanding the appellants and I decided to proceed until any difficulty became apparent.  As it happened, however, the appellants did not wish to make any submissions in support of their appeal.  The first appellant said that everything he wanted to say was said in the notice of appeal.  That being so, I am satisfied that any limitations in the interpreting were not significant to the hearing of the appeal.

17. In the absence of any particulars in the notice of appeal and any submissions made at the hearing of the appeal, there is simply nothing to indicate that there was any jurisdictional error in the Tribunal’s reasons or that the Federal Magistrate erred in failing to discern such an error.

18. The Tribunal’s decision to decide the matter without further notice to the appellants was authorised by s 426A of the Act and was procedurally fair. Given the appellants are unrepresented before me today, I note that the Tribunal at [46] of its reasons states that it cannot be satisfied that the first appellant ‘will’ suffer serious harm for a Convention reason. While this misstates the test for protection under the Convention (see, for example, Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379), in my opinion the Tribunal did not apply the wrong test in concluding that the appellants did not have a well-founded fear of persecution and its reasons should not be subject to over-zealous review by the Court; see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

19. In my view the Tribunal’s decision is not affected by jurisdictional error.  As such, the Federal Magistrate was correct in dismissing the application for judicial review.

    CONCLUSION

20. The appeal must be dismissed.  I further order that the appellants pay the respondent’s costs in the amount of $2,000.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:             28 June 2005

The First Appellant appeared on behalf of the Appellants
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	17 June 2005
Date of Judgment:	17 June 2005