SZCIQ v Minister for Immigration
[2005] FMCA 1423
•29 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCIQ & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1423 |
| MIGRATION – Review of decision of RRT – where the applicant failed to attend the Tribunal – whether the tribunal came to its decision in bad faith and failed to accord the applicant natural justice – where the applicant did not provide any particulars to support his claims. |
| Migration Act 1958, s.426A Federal Magistrates Court Rules 2001 |
| Applicants: | SZCIQ & SZCIR |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2920 of 2003 |
| Judgment of: | Raphael FM |
| Hearing date: | 29 August 2005 |
| Date of Last Submission: | 29 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 29 August 2005 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondent: | Ms s McNaughton |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
Application dismissed.
Applicant to pay respondent’s costs in the sum of $4,000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
The Refugee Review Tribunal be joined as second respondent to these proceedings.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2920 of 2003
| SZCIQ AND SZCIR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of India who, together with his wife, arrived in Australia on 7 December 2002. On 9 January 2003 he lodged an application for protection (Class XA) visas with the Department of Immigration and Multicultural and Indigenous Affairs. On 26 March 2003 a delegate of the Minister refused to grant them protection visas and on 15 April 2003 they applied for a review of that decision.
The Refugee Review Tribunal wrote to the applicant on 19 September 2003 advising him that it had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone. The applicant was invited to a hearing on 5 November 2003 but on 28 October 2003 he sent a response to hearing invitation back to the Tribunal advising it that he did not wish to appear [CB 85].
On 4 November 2003 the Tribunal determined to affirm the decision not to grant a protection visa and handed that decision down on 2 December 2003.
The grounds upon which the applicant says that he is a person to whom Australia owes protection obligations are set out in a statement of claim commencing at [CB 31] and concluding at [CB 33]. The applicant is a lower caste Hindu who says that he was involved with the Congress Party for some time but he appears to have left the party in disgust at its treatment of persons, such as himself.
His claims are succinctly contained in the last paragraph of his statement at [CB 33]. He says:
“The social organisations of the applicant could not live long as the applicant and his colleagues and other office bearers bashed and all of us were badly humiliated. The applicant was roped into many false cases, the applicant was beaten by the Hindus of the upper class. The applicant was confined without any lawful reasons. The applicant was persecuted many times, the applicant was discriminated on the bases of his race and cost [caste] and belonging to a particular social group. The applicant's life was in danger, the applicant obtained an Australian visa and the applicant arrived in Australia in order to escape save his life, his dignity and the honour. The applicant has a well founded fear of his being killed in India, the applicant has both the subjective and objective fear due to the convention based reason of the race and social group in India.”
When the applicant applied to the Tribunal for review of the delegate's decision he stated at [CB 68] that a detailed submission would follow shortly. It did not do so.
The Tribunal proceeded to consider the application pursuant to s.426A of the Migration Act 1958 (Cth) (the “Act”). At [CB 84] the Tribunal sets out in a series of dot points the failings of the application. It notes that the applicant did not:
.Provide details of his involvement in the Congress Party.
.Provide details of his involvement in the social committee to uphold the rights of lower caste Hindus.
.Provide details of the caste of which he and his wife was a member and whether this was a scheduled or other backward class.
.Provide details of the exploitation, abuse and mistreatment of lower class Hindus in his region.
.Provide details of any mistreatment he has suffered for reasons of his caste, support of the rights of lower casts or for his membership of the Congress Party.
.Provide details of the charges made against him and the outcome of those charges.
.Provide details of his detention including the date and circumstances of his arrest and detention.
.Explain how he was able to obtain a passport and leave India with charges outstanding against him.
The Tribunal then considered certain independent country information relating to lower caste Hindus and notes that the allegations made by the applicant were not supported by the legislation which existed in India to provide affirmative action for such people.
The Tribunal concluded that it could not be satisfied on the evidence before it that the applicant had a well founded fear of being persecuted for a convention reason if he returned to India now or in the foreseeable future.
The applicant in his application to this court dated 30 December 2003 suggested that the Tribunal made its decision in bad faith and deprived him of natural justice. He provides no particulars of the allegation of bad faith which the High Court and Federal Court made clear is a very serious allegation to make and requires the fullest particulars and the most stringent proof.
Likewise the applicant has not provided any particulars of the alleged breach of natural justice so it is difficult to understand what his complaint is, particularly when he failed to attend before the Tribunal and thus give the Tribunal the opportunity to question him on matters of concern that it held.
The applicant makes other complaints in his grounds of application but these are in standard form and he has not said anything to me today about them. Ms McNaughton, in her helpful written submissions, has dealt with each of them in turn and a copy will be placed with the papers so that any future appellate court can see that the matters have all been considered and rejected.
In the absence of the particularisation of the claims made in the application and in the absence of anything from the applicant at all concerning the conduct of the Tribunal I am unable to find any grounds upon which this decision can be impugned. I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $4,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
It is requested by the respondent that I order that the Refugee Review Tribunal be joined as second respondent to these proceedings. I do so.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM
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