SZBXZ v Minister for Immigration
[2005] FMCA 366
•21 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBXZ & ANOR v MINISTER FOR IMMIGRATION | [2005] FMCA 366 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visas – applicants claiming persecution in India – uncertain characterisation of the claim – no reviewable error found – application dismissed. |
First Applicant: Second Applicant: | SZBXZ SZBYA |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG2500 of 2003 |
| Judgment of: | Driver FM |
| Hearing date: | 21 March 2005 |
| Delivered at: | Griffith |
| Delivered on: | 21 March 2005 |
REPRESENTATION
The applicants appeared in person
| Counsel for the Respondent: | Mr A Markus |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicants are to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2500 of 2003
| SZBXZ |
First Applicant
SZBYA
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 30 September 2003 and handed down on 23 October 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. The applicants are a husband and wife from Gujurat State in India. The relevant protection visa claims were made by the first applicant, the applicant husband. I adopt by way of background relevant part of paragraphs 2‑11 of written submissions prepared on behalf of the Minister by Mr Markus:
The applicants are husband and wife and citizens of India[1]. The applicants arrived in Australia on 26 October 2002[2]. On 29 November 2002 the applicants lodged an application for Protection (Class XA) visas[3]. Only the applicant husband (hereafter “the applicant”) made specific claims under the Refugees Convention, the applicant wife relying on her membership of his family.
[1] court book, pages 1, 13, 30
[2] court book, page 13
[3] court book, pages 1, 84.2
The applicant’s claims were detailed in a statement attached to the protection visa application[4] and in the application for review to the RRT .[5]
[4] court book, pages 18-20
[5] court book, page 68
In summary, the applicant claimed a well founded fear of persecution in India on the bases of his religion (Hindu) and political opinion. In particular, he made the following claims:
·in December 2000 he was elected secretary of an organisation that represented his village in discussions with “the government and politically influential organisations”;
·after the World Trade Centre attack in September 2001 the organisation wanted to pass a resolution condemning the act of the Muslim extremists, which caused dissension in the organisation and the Muslim members left;
·the applicant learnt that an attack was planned on the organisation and their president was assassinated;
·this provoked the Hindus and clashes resulted;
·supporters of the organisation were attacked and some killed;
·the applicant’s property was burned; and
·the applicant was targeted in particular because of his involvement as the secretary[6].
[6] court book, pages 18-20
After the Minister’s delegate refused the applicants’ application for a protection visa on 16 December 2002, the applicants applied to the RRT to review that decision on 14 January 2003[7].
[7] court book, pages 66-69, 70.4
On 11 August 2003 the RRT sent a letter to the applicants[8], at their mailing address[9], which was copied to their authorised recipient[10], stating:
The Tribunal has considered the material before it in relation to your application but it is unable to make a decision in your favour on this information alone.
The letter invited the applicants to a hearing on 9 September 2003.
On 26 August 2003 the RRT received a facsimile from the applicant’s authorised recipient, which advised that the applicants did not wish to attend a hearing and that they consented to the RRT proceeding to make a decision on the review without taking any further action to allow or enable them to appear before it[11].
The RRT’s decision
In view of the response to the hearing invitation received by the RRT requesting that the matter be decided without a hearing, the RRT proceeded to determine the application on the evidence available to it[12].
In summary, the RRT noted that the applicant’s claims lacked detail, but appeared to relate to broader sectarian clashes in the early part of 2002. The RRT proceeded to conclude that the applicant, as a Hindu in Gujarat, would have enjoyed the full protection of the state, and that such protection will continue to be available in the future.
In the circumstances, the RRT was not satisfied that the applicant had a well-founded fear of persecution within the meaning of the Convention[13].
[8] court book, pages 74-75
[9] court book, page 66.9
[10] court book, page73
[11] court book, page 76
[12] court book, page 86.6
[13] court book, page 90.5
The applicants rely upon an amended application filed on 28 June 2004. Mr Markus deals with the content of that application in paragraph 14 of his written submissions. I adopt that paragraph for the purposes of this judgment:
Relevantly, the amended application states as follows:
The applicant claims:
1.A writ of certiorari to quash the RRT decision
2.A writ of mandamus to compel the RRT considers the application according to law and cost.
On the following grounds:
That the RRT decision was effected to take into account a relevant consideration when it assessed weather the delegate of the Minister raised reasonable grounds for not granting a protection visa. I will provide more grounds after meeting with the pilot scheme barrister.
Particulars:
(a)The Tribunal to consider in assessing the chance of the applicant being persecuted on his return to India, based on the fact he was a member of a particular social group and political opinion in India.
(b)The Tribunal’s satisfaction that the applicant is not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief.
Particulars:
The applicant repeats the particulars to grounds
The amended application is difficult to understand. I raised the difficulty in interpreting it with the first applicant this afternoon. As best as I can understand it, the applicants appear to be asserting that the RRT failed to take into account a relevant consideration. The applicants appear to be asserting that the RRT failed to consider their claims as members of a particular social group. The amended application also asserts that there was no rational or logical foundation for the views formed by the presiding member. The second allegation is clearly wrong. The decision and reasons of the RRT[14] plainly provide a rational and logical foundation for the decision made.
[14] appearing from page 83 of the court book
Mr Markus characterises the applicants’ claims as claims of religious and political persecution. It may be that the applicants prefer to characterise them as membership of a particular social group. In essence, the first applicant asserted that he had suffered harm as a member of a local village organisation called Brotherhood and Humanity, which attempted to heal rifts between Muslims and Hindus in Gujurat. It is clear that however one might characterise that claim, it was considered by the presiding member. The first applicant confirmed to me that the presiding member’s description of this claim[15] was an accurate statement of the claim he had made. The presiding member did not specifically characterise the claim as a claim of a fear of persecution by reason of religion or political association or membership of a particular social group. The presiding member appears to have proceeded on the basis that, however one might characterise the claim, the harm that the applicants feared stemmed not from the first applicant’s activities in his local village but to general communal violence in Gujurat in the early part of 2002. The presiding member found that the applicants as Hindus would find effective State protection in Gujurat from that communal violence. I find that the applicants’ claims of a well‑founded fear of persecution were considered by the RRT. There was no failure to take into account a relevant consideration.
[15] court book, page 87
In other respects I agree with and adopt Mr Markus’ written submissions set out in paragraph 17-19 of his written submissions:
Whilst it is accepted that the applicants are not satisfied with the decision of the RRT, it is not surprising that the RRT reached the decision it did in view of the fact that:
·it informed the applicants that it was not able to make a favourable decision on the material and evidence before it;
·invited the applicants to a hearing;
·the applicants declined that invitation, and
·the applicants did not submit any other material to the RRT.
In those circumstances the claims made by the applicants in their application for review to this Court are baffling.
In any event, the respondent submits that the RRT’s finding in respect of state protection was clearly available to it on the evidence. There is no error, let alone error amounting to a jurisdictional error, arising from the way in which the RRT dealt with the applicant’s claims.
There is no jurisdictional error in the decision of the RRT. The decision is therefore a privative clause decision.
The application for judicial review must be dismissed.
The application having been dismissed, costs should follow the event. Mr Markus seeks an order for costs fixed in the sum of $4,000. The applicants are concerned about that amount being required of them. However, I am satisfied that costs of not less than $4,000 have been reasonably and properly incurred on behalf of the Minister. A book of relevant documents has been prepared. The Minister has been represented at a directions hearing and today. Mr Markus has been briefed and has prepared written submissions. I will order that the applicants are to pay the Minister’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 4 April 2005
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