SZCJR and Ors v Minister for Immigration and Anor (No.2)
[2006] FMCA 640
•10 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCJR & ORS v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2006] FMCA 640 |
| MIGRATION − Where applicants chose not to attend Tribunal hearing to provide further evidence − where Tribunal refused application for protection visa on basis of lack of detail in written submissions − whether jurisdictional error. |
| Migration Act 1958, s.65 Federal Magistrates Court Rules 2001 |
| Applicants: | SZCJR, SZCJS, SZCJT |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 12 of 2004 |
| Judgment of: | Raphael FM |
| Hearing date: | 10 April 2006 |
| Date of last submission: | 10 April 2006 |
| Delivered at: | Sydney |
| Delivered on: | 10 April 2006 |
REPRESENTATION
| For the Applicants: | In person |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
Applicants to pay the respondent’s costs assessed in the sum of $5,500.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG12 of 2004
| SZCJR, SZCJS, SZCJT |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicants, a husband, wife and daughter, are citizens of India. They arrived in Australia on 29 January 2003. On 19 February 2003 they lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 6 June 2003 a delegate of the Minister refused to grant a visa and on 30 June 2003 the applicants applied for a review of that decision.
On 29 September 2003 the Tribunal wrote to the male applicant a letter in which it stated:
“Please note you must tell all persons named above about this letter and, if they wish, reply to the Tribunal for them.”
The letter continued:
“The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.
We now invite you and any persons listed above to come to a hearing of the Tribunal to give oral evidence and present arguments in support of your claim. You can also ask the Tribunal to obtain oral evidence from another person or persons.”
On 5 November 2003 the Tribunal received from the applicant a letter entitled Response to Hearing Invitation and signed by him on behalf of all the applicants, stating that he did wish to attend a hearing.
On 16 November 2003 the male applicant wrote to the Tribunal a letter reproduced at [CB 67]:
“We had decided to come to the hearing which was fixed for coming 18 November 2003. Now, due to personal reasons, we would be unable to attend the hearing and requesting you to kindly make the decision on the facts and our statement of claim provided in the Departmental file. Our claim is fitting in the definition of the term "refugee" as provided by UN Convention. Thanks.”
The male applicant's ground for seeking the protection of Australia was based upon his history of being a Muslim born and living in Mumbai, where he ran a wholesale and retail business of readymade garments for 20 years prior to his arrival. The applicant stated that in 1992 when the Babri Mosque was demolished by Hindu extremists, he suffered an attack on his life when some extremists stopped him and tried to burn him alive by spreading kerosene on his body. He was saved by a bystander.
The applicant claimed that during this period he had a loss in his business and thereafter received threats from extremist groups. The applicant claimed that he managed to continue to live in Mumbai until the February 2002 Gujerat train tragedy. In March 2002 he and his family suffered an attack on their home from Hindu extremists. He claimed they beat him up to protest about Hindu loss of life in the tragedy. The applicant claimed that these actions by extremists caused him terrible anxiety and led to a loss in his business. Although the applicant stated that further submissions would be made at the hearing none were received by the Tribunal.
The Tribunal's decision is short. Its findings and reasons commence at [CB 88] and complete at [CB 89]. The relevant passages can be extracted simply:
“The Tribunal notes that the independent evidence cited above [CB 80-87] indicates that there is religious freedom in India and the independent evidence indicates that state and federal governments generally take vigorous and active steps to put an end to communal violence. However, the Tribunal also acknowledges that the independent evidence indicates that in India religious tensions regularly arise and that there is ample evidence of sporadic inter-religious-based communal violence. Moreover, the independent evidence also indicates a disturbing trend of federal and some state governments, to align themselves with Hindu extremist movements for electoral advantage, and that Maharastra and its capital, Mumbai, has been a particular area of Hindu extremism.
However, without further evidence, the Tribunal cannot be satisfied that the applicant husband's fears for himself and his family are well founded. In order to be satisfied that the applicant husband's fears are well founded, the Tribunal would need to satisfy itself as to the veracity of the applicant's above claims, including the circumstances surrounding the events he claims to have suffered. The Tribunal further would wish to have further evidence of the applicant's role in the Samajwadi Party such that this might bring him to the attention of Hindi nationalists as he claimed.
Without further evidence, the Tribunal cannot be satisfied that the applicant, a businessman living in Mumbai, has been, as he claims, implicated in an event in Gujerat.”
(The Tribunal then discusses the possibility of relocation.)
“In the light of the evidence before it, the Tribunal is not satisfied that the applicant husband and his family have a well-founded fear of persecution within the meaning of the Convention. Therefore, the Tribunal finds their fear is not well founded.”
It will be seen from the above that the decision in this case is simply one of a failure of satisfaction due to the lack of detail in the applicant's written submissions and his failure to attend the hearing to give further assistance to the Tribunal. The legislation is quite clear under s.65 of the Migration Act 1958.
If the Tribunal is satisfied, it must grant a visa; but if it is not satisfied, it must not grant a visa. I cannot see any jurisdictional error in the way in which the Tribunal formulated and described its lack of satisfaction based upon insufficient evidence in this case.
I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $5,500, to include several adjournments made at the request of the applicant, pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
1
0
2