SZCIQ v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 1543

FEDERAL COURT OF AUSTRALIA

SZCIQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1543

SZCIQ & ANOR v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ANOR

NSD 1698 OF 2005

EMMETT J
26 OCTOBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1698 OF 2005

BETWEEN:

SZCIQ
FIRST APPELLANT

SZCIR
SECOND APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

26 OCTOBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed. 

2.        The appellants pay the first respondent’s costs of the appeal.

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	NSD1698 OF 2005

BETWEEN:

SZCIQ
FIRST APPELLANT

SZCIR
SECOND APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	EMMETT J
DATE:	26 OCTOBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellants are husband and wife.  They claim to be citizens of India.  They arrived in Australia on 7 December 2002.  On 9 January 2003, the appellants lodged applications for Protection (Class XA) Visas under the Migration Act 1958 (Cth) (‘the Act’). On 26 March 2003, a delegate of the first respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), refused to grant protection visas. On 15 April 2003, the appellants applied to the second respondent, the Refugee Review Tribunal (‘the Tribunal’), for review of the delegate’s decision. On 4 November 2003, the Tribunal affirmed the decision not to grant protection visas. The appellants were notified of that decision on 2 December 2003.

2. On 30 December 2003, the appellants commenced a proceeding in the Federal Magistrates Court of Australia seeking Constitutional writ relief under s 39B of the Judiciary Act 1903 (Cth) (‘the Judiciary Act’) in respect of the Tribunal’s decision. On 29 August 2005, Raphael FM ordered that the application be dismissed and ordered the appellants to pay the Minister’s costs. On the same day, his Honour gave reasons orally for making those orders.

3. On 15 September 2005, the appellants filed a notice of appeal to this Court from the orders of Raphael FM.  That appeal came before me for directions on 12 October 2005, when the first appellant appeared without legal representation.  By consent, I gave directions for the preparation of an appeal book and the filing of written submissions and fixed the matter for hearing at 10.15 am today.  The directions included a requirement that the appellants file and serve written submissions no later than five clear working days before the hearing date.  That direction has not been complied with. 

4. When the matter was called on for hearing this morning there was no appearance for the appellants.  The Minister nevertheless asked the Court to proceed with the hearing.  On 21 October 2005, the Minister’s solicitors sent a letter to the appellants at their address for service shown in the notice of appeal.  The letter was sent by courier.  The letter made perfectly clear that the matter was listed for hearing today.  In the circumstances, I propose to accede to the Minister’s request to proceed with the hearing of the appeal, notwithstanding the non-appearance of the appellants.

5. Before the Tribunal, the appellants claimed that they are low-caste Hindus and that the first appellant was an active member of the Congress Party.  He claimed that he established a local social committee to uphold the rights of lower caste Hindus in the region.  He claimed that lower caste Hindus were exploited, abused and financially mistreated by the upper caste Hindus.  He also claimed that they were segregated from upper caste Hindus and claimed that the Congress Party was headed by upper caste Hindus who do not wish to change the status quo.  He claimed that the present government in India supports the situation and takes a fundamentalist view of the caste system.

6. The first appellant resigned from the Congress Party and the social committee was forced to disband because he and other office-bearers were subjected to physical attacks and humiliations.  The first appellant made general claims about discrimination against low caste persons and the domination of Indian society by upper caste Hindus.  He claimed that false charges were laid against him and he was detained without reason.  He claimed that he believed that his life was in danger and so he fled to Australia.

7. On 19 September 2003, the Tribunal wrote to the appellants, by letter addressed to the first appellant, advising that the Tribunal had considered all the material before it relating to their application, but was unable to make a favourable decision on that information alone.  The Tribunal invited the appellants to give oral evidence and present arguments at a hearing on 5 November 2003.

8. On 29 October 2003, the Tribunal was informed in writing that the appellants did not wish to give oral evidence, and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable them to appear before it.  The Tribunal therefore determined the review on the evidence then available to it.

9. The Tribunal was satisfied that the appellants are citizens of India.  The Tribunal considered, however, that the claims before it were stated in the most general of terms and that the level of detail was insufficient for the Tribunal to make findings in favour of the appellants.  The Tribunal observed that the appellants’ claims were not supported by any of the country information cited by the Minister’s delegate.  That information suggests that legislation has been introduced to protect members of disadvantaged classes in India from harm and to provide affirmative action policies in relation to employment and education.

10. The Tribunal accepted that India is a long-established democracy with an impartial and fair judicial system.  It found that persons brought before the courts have a right to representation and open trial, and that the decisions of the judiciary are subject to appeal. 

11. In view of the vagueness and generality of the appellants’ claims and the independent country information available to the Tribunal, the Tribunal did not accept the appellants claims that the first appellant has been subject to persecution for reasons of his membership of a low class, his support for the rights of lower caste individuals or for reasons of his political opinion.  The Tribunal was therefore unable to be satisfied on the evidence before it that the first appellant has a well-founded fear of being persecuted for a Convention reason if he returns to India now, or in the reasonably foreseeable future.  No independent claim was made on behalf of the second appellant.

12. In their application to the Federal Magistrates Court, the appellants asserted that the Tribunal made its decision in bad faith and deprived the appellants of natural justice.  No particulars of the allegation of bad faith were provided, nor did the appellants provide any particulars of the alleged denial of natural justice.

13. Raphael FM referred to those matters and observed that it was difficult to understand the complaint about denial of natural justice when the appellants failed to attend the Tribunal and give the Tribunal the opportunity to put questions on matters of concern.  Raphael FM was unable to find any grounds upon which the Tribunal’s decision could be impugned.

14. In their notice of appeal to this Court, seven so-called grounds are set out. None of them discloses any matter of substance. The first simply makes an assertion that the Federal Magistrates Court failed to find error of law, jurisdictional error, procedural fairness and relief under s 39B of the Judiciary Act.

15. Other grounds refer to decisions of the High Court in proceedings arising under the Act. None of them appears to have any bearing on the proceeding presently before the Court, and no specific ground is articulated in the notice of appeal. One of the grounds is a bare assertion that the first appellant will face persecution if he returns to India. Another ground asserts that the Federal Magistrates Court erred in considering the real state of affairs of the first appellant’s persecution in India.

16. There is no substance whatsoever in the grounds of appeal.  It follows that the appeal must be dismissed.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             1 November 2005

No appearance for the Appellants:
Counsel for the Respondent:	Ms R. Henderson
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	26 October 2005
Date of Judgment:	26 October 2005