SZCIA v Minister for Immigration - [2005] FMCA 1426

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCIA v MINISTER FOR IMMIGRATION

[2005] FMCA 1426

MIGRATION – Application for review of a decision of the Refugee Review Tribunal – where applicant did not attend Tribunal hearing – whether the Tribunal failed to take into account a relevant consideration – whether the Tribunal’s satisfaction was based upon logical reasoning – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.424A, 426A

SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Singh v Minister for Immigration & Multicultural & Indigenous Affairs (2001) FCA 1679

Applicant:

SZCIA

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 2899 of 2003

Judgment of:

Pascoe CFM

Hearing date:

6 October 2005

Delivered at:

Sydney

Delivered on:

17 November 2005

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Nil

Solicitors for the Respondent:

Blakes Dawson Waldron

ORDERS

That the Refugee Review Tribunal be joined as a party to these proceedings.
That the application be dismissed.
That the applicant pay the respondent’s costs fixed in the sum of $3300.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2899 of 2003

SZCIA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

In his amended application filed 19 April 2004 the applicant seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 5 November 2003 and handed down on 2 December 2003 affirming a decision of a delegate of the Minister not to grant a protection visa to the applicant. Consistent with SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24, I join the Tribunal as a party to these proceedings.
The applicant, who is a citizen of India, arrived in Australia on

23 March 2005. On 15 April 2003 the applicant lodged with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) for a protection (class XA) visa. On 5 May 2003 a delegate of the Minister refused to grant a protection visa and on 4 June 2003 the applicant sought review of that decision.
In his protection visa application the applicant claimed to be of Muslim religion and feared being killed by members of the Hindu nationalist Party, Siva Sena (SS) and the militant Hindu organisation, Vishwa Hindu Parishad (VHP). He claimed that he attempted to make complaints to police and on the two occasions when he did so his possessions were looted and his home attacked yet the police refused to register the complaints and threatened him. More specifically, the applicant claimed that:
a)He saw and suffered from the carnage of the anti-Muslim riots between 1992 and 1993 which followed destruction of an ancient Muslim mosque;
b)In the current world climate of suspicion against Muslims there is a tension simmering under the surface in Mumbai which could turn into a disaster for Muslims at any time;
c)He knew the VHP and SS henchmen who killed a friend of his and since then they have been waiting to eliminate him;
d)The VHP and SS are in power and planning to create communal mistrust and orchestrate anti-Muslim riots;
e)Since 1992 anti-Muslim feelings have been deeply rooted in Mumbai which reached new heights because of Islamic terrorism. Local cadre members of the local Hindhu political party act as assassins when trouble breaks out. They use official local government allotment list to locate houses and buildings belonging to Muslims, mark them, and burn them and kill the Muslims. His house was marked on two occasions and his house looted and ransacked; and
f)He has continuously been harassed by local cadres of the SS.
The applicant relies upon his amended application dated 16 April 2004 and his written submissions filed 27 July 2005. His amended application contains two grounds of review, namely:
a)The Tribunal’s decision was affected by jurisdictional error in that the Tribunal failed to take into account a relevant consideration when it assessed whether the delegate of the Minister raised reasonable grounds for not granting a protection visa; and
b)The Tribunal's satisfaction that the applicant was not a refugee was not based upon reasoning which provided a rational or logical foundation.
The applicant raised other grounds by way of affidavit not contained in his amended application. Those grounds allege that the Tribunal decision was affected or induced by actual bias and bad faith in that it failed to address the applicant's claims. Those grounds were withdrawn at the hearing before me. I note that I questioned the applicant after he first indicated he did not wish to pursue these grounds in order to ensure that this was indeed what he wanted to do and that he affirmed his decision.
The Tribunal in a letter dated 11 September 2003, invited the applicant to a hearing on 4 November 2003. The letter indicated that the Tribunal had considered the material before it in relation to his application but that it was unable to make a decision in his favour on that information alone and therefore invited him to give oral evidence and present arguments in support of his claims at that Tribunal hearing. The applicant did not attend the hearing and did not contact the Tribunal to explain his failure to attend. As the Tribunal notes in its decision at page 57 of the Court Book the Tribunal then proceeded to determine the application pursuant to s.426A of the Migration Act 1958 (Cth) (“the Act”). The Tribunal at page 61 of the Court Book states:
The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. The invitation was sent to the applicant’s authorised recipient and a copy was sent to the applicant’s residential address as shown on his review application. No response was received. Although the copy of the invitation sent to the applicant’s residential address was returned unclaimed to the Tribunal, the invitation sent to the authorised recipient was not returned.
The applicant indicated both in his written and oral submissions that he was aware of the hearing but did not attend because he had not collected documentary evidence to support his claims.
The Tribunal set out the applicant's claims that he was a Muslim and that he feared being killed by agents of the Hindu Nationalist Party. The Tribunal noted that the applicant had not provided specific details about fundamental aspects of his claims. It noted that he did not provide the date that his friend was allegedly killed by VHP and SS ‘henchmen’ or explain why they killed him. He did not provide the dates on which he claimed his house was looted and ransacked, the name of the local political party whose members he claimed were responsible or details relating to the threats made by police officials when he stated that he attempted to complain to them about the alleged attacks. The Tribunal also noted that the applicant had not provided any details about the nature of the harassment he claimed to have been subjected to continuously by local cadres of the SS.
The Tribunal was not satisfied that the applicant would face future harm because he is a Muslim. It found that he had not provided sufficient details about important aspects of his claims and therefore the Tribunal was not prepared to accept mere assertions about the past and future. In particular I note that the Tribunal said the applicant did not provide the dates on which he claimed his house was looted and ransacked and had provided no details of the nature of the harassment to which he claimed to have been subjected by local cadres of the Hindu Nationalist Party. Accordingly, the Tribunal proceeded to affirm the delegate's decision to refuse the protection visa application.
The two grounds of review are each particularised with an allegation that the Tribunal failed to consider the real chance test on the basis of the applicant being Muslim. The applicant contends that this constitutes a failure to take into account a relevant consideration and that the Tribunal's satisfaction was not based upon reasoning which provided a rational or logical foundation for its decision.
These allegations must fail. The Tribunal's findings were open to it for the reasons it gives. There is nothing to suggest that any considerations the Tribunal is required to take into account were overlooked. In this case the applicant had been clearly informed that the Tribunal was unable to be satisfied on the material before it. It had invited him to attend a hearing to present additional material but the applicant failed to attend. The decision of the Tribunal reached was the only one that was reasonably open to it on the evidence before it.
I note that the Tribunal did not send to the applicant a letter pursuant to s.424A. However, this is not indicative of error (SAAP (supra)) because the decision of the Tribunal was not based on information falling within the provision of s.424A. Rather, the decision was based on the fact that it was not satisfied as to elements of the applicant’s claims as a result of the lack of specificity provided by the applicant (Singh v Minister for Immigration & Multicultural & Indigenous Affairs (2001) FCA 1679 at [25], per Merkel J).
I am not satisfied that the applicant has demonstrated jurisdictional error or error of law. The decision of the Tribunal was reached on the basis of the information it had before it and in my view was a decision reasonably open to it.
Accordingly, for the foregoing reasons, I am satisfied that the application should be dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Pascoe CFM

Legal Associate: Peter Smith

Date: 17 November 2005