SZBXX v Minister for Immigration
[2005] FMCA 1888
•19 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBXX & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1888 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in India – no reviewable error found – application dismissed. |
| Minister for Immigration v Respondents S152/2003 (2004) 205 ALR 487 NAVX v Minister for Immigration [2004] FCAFC 287 |
First Applicant: Second Applicant: | SZBXX SZBXY |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2499 of 2003 |
| Judgment of: | Driver FM |
| Hearing date: | 19 December 2005 |
| Delivered at: | Sydney |
| Delivered on: | 19 December 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kumar |
| Solicitors for the Applicant: | Chandra Jayawardena, Solicitor |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The Refugee Review Tribunal is joined as the second respondent to the proceedings.
The judicial review application is dismissed.
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2499 of 2003
| SZBXX |
First Applicant
SZBXY
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application to review a decision of the Refugee Review Tribunal (“RRT”) handed down on 23 October 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. There are two applicants, a husband and wife from India. They arrived in Australia on 26 October 2002 and on 2 December 2002 they lodged an application for protection visas with the Minister's department.
A delegate of the Minister refused to grant protection visas on 13 December 2002 and on 14 January 2003 the applicants applied for review of that decision. As is noted by the RRT in its decision, in essence, the principal applicant claimed that he was and will continue to be targeted by Muslims in his home state of Gujarat, and that these Muslims are supported secretly by the Congress Party. He also claimed that the police not only took no action to redress the Muslim threats but also actively persecuted him.
The applicants were invited to attend an oral hearing before the RRT by letter dated 11 August 2003.[1] That invitation was declined on 25 August 2003.[2]
[1] Court book (“CB”) 47
[2] CB 49
The applicants rely upon their amended application filed on 17 June 2005. That application raises the following grounds of review. First, an asserted jurisdictional error based upon an alleged factual error in that the RRT is said to have misunderstood and misconstrued information given by the principal applicant in his original protection visa application about moving to a remote area. Secondly, the amended application asserts unreasonableness both in the Wednesbury sense and also manifest unreasonableness. The amended application is supported by written submissions.
The Minister's written submissions filed on 14 December 2005 deal with these asserted jurisdictional errors in paragraphs 2-13. Mr Kumar for the applicant also relied upon written submissions filed on 9 December 2005 and made brief oral submissions in addition. I find myself in complete agreement with the Minister's written submissions which were adopted by Mr Reilly in oral argument and I adopt paragraphs 2-13 of the Minister's submissions for the purpose of this judgment:
Ground 1 – relocation claim
The applicants submit that the RRT misunderstood and misconstrued the information given in their protection visa application. In particular that the RRT wrongly concluded that first applicant had moved to a remote area, when in fact he had merely changed his “place of living”. The applicants’ written submissions state that the first applicant “did not relocate permanently to any other state”.
In considering the factual findings of the RRT it must be borne in mind that the RRT had indicated to the applicants that it was unable to find in their favour on the basis of the material in its possession and invited them to a hearing to give evidence and to make submissions in support of their application for review. The applicants declined to do so. As such, the RRT was obliged to make a finding based on the information before it, and to assess that information as best it could, without the assistance of the applicants.
Since the applicants declined to attend, where the RRT had previously indicated it could not find for them on the basis of the material already provided it was inevitable that the application would fail. However, in the respondent’s submission, having failed to avail themselves of the opportunity to explain their position to the RRT, it is not now open to the applicants to seek to do so on appeal (see NAVX v Minister for Immigration [2004] FCAFC 287 at [5]).
It is therefore submitted that this ground should be rejected.
Ground 2 – Wednesbury unreasonableness
As understood by the respondent, it is the applicants’ submission that the RRT’s finding that they would have enjoyed the full protection of the state was unreasonable in a Wednesbury sense.
In the respondent’s submission, the RRT, having satisfied itself that the first applicant was Hindu, then used independent country information to assess the state of police protection in Gujarat, as it was clearly entitled to do. Based on the information before it, it was open to the RRT to conclude that although the protection of Gujarati citizens was partisan it was Muslims rather than Hindus who were denied protection, and that Hindus could expect to received full protection.
The RRT was satisfied that the first applicant was a Hindu. It is submitted that his finding was also clearly open to the RRT.
Having made these two findings of fact, it cannot be unreasonable for the RRT to have concluded on that basis that the applicants would receive the full protection of the state.
To the extent that the applicants’ submission is based on the RRT’s statement that “this does not preclude the [first applicant] from being injured in a random or opportunistic incident”, it must also fail. This statement is no more than an observation that no state can absolutely guarantee protection of its citizens. As such, it reflects a well-established understanding of the nature and extent of protection afforded by countries to their citizens: see for example Minister for Immigration v Respondents S152/2003 (2004) 205 ALR 487 at 494, [26], per Gleeson CJ, Hayne and Heydon JJ.
This ground should be rejected.
Ground 4 [sic] – Manifest unreasonableness
The applicants submit that the RRT found that the first applicant had “fabricated information in order to gain refugee status”. Clearly, this was not the case. At CB61.5 the RRT said:
“The applicant’s claims that his relatives were kidnapped and that he himself was detained and tortured are mere assertions. He has given no the slightest detail to add weight to these claims, nor any mention of the timeframe in which these events may have occurred, and has also voluntarily forsaken the opportunity to speak to these very serious claims at hearing.”
The RRT did not suggest that the first applicant had “fabricated” his claims. It merely found that, on the basis of the assertions made, it could not be satisfied that the claims were genuine. As noted earlier, the applicants had previously been informed that the RRT could not made a decision in their favour on the basis of the material submitted, and had invited them to supplement that material at hearing. This invitation was declined. As an inevitable result their application failed. This cannot found the basis of a successful appeal (see NAVX v Minister for Immigration [2004] FCAFC 287 at [5]).
Fundamentally, the applicants failed before the RRT because the RRT was not satisfied on the fairly sparse information before it that the applicants had a well founded fear of persecution in India. Although there was limited material before the RRT, it was sufficient for the RRT to reach the decision it did. I see no unreasonableness in any sense in the RRT’s reasoning. Neither do I see that the asserted factual error if it exists supports any claim of jurisdictional error. I find that there is no jurisdictional error in the decision of the RRT.
Accordingly, I dismiss the judicial review application.
Costs should follow the event. I have assessed the Minister’s costs in the sum of $5,000 on a party and party basis and I will order that they be paid by the applicants.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 22 December 2005
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