SZCJZ v Minister for Immigration - [2005] FMCA 1958

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCJZ v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1958

MIGRATION – RRT decision – Indian member of BJP fearing Muslim extremists – did not attend Tribunal hearing – no error found.

Migration Act 1958 (Cth), ss. 474(1), 477(1A), 483A, Part 8
Federal Magistrates Court Rule 13.10(c)
Acts Interpretation Act 1901 (Cth) s.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41
Judiciary Act 1903 (Cth), s.39B

Applicant:

SZCJZ

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1765 of 2005

Judgment of:

Smith FM

Hearing date:

12 December 2005

Delivered at:

Sydney

Delivered on:

12 December 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms B Rayment

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $3,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1765 of 2005

SZCJZ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 6 July 2005 under s.483A of the Migration Act 1958 (Cth). It seeks orders by way of judicial review in relation to a decision of the Refugee Review Tribunal dated

21 November 2003 and handed down on 16 December 2003. The Tribunal affirmed a decision of a delegate made on 13 June 2003 which refused to grant a protection visa to the applicant.
Section 483A was repealed by the Migration Litigation Reform Act 2005 (Cth), however this does not affect the continuance of the present proceeding (see Sch.1 cl.41 of the amending Act and Acts Interpretation Act 1901 (Cth), s.8).
Section 483A gives the Court the jurisdiction of the Federal Court under s.39B of the Judiciary Act 1903 (Cth). This is subject to limitations under Part 8 of the Migration Act, which have the effect that I do not have power to set aside the Tribunal decision and send the matter back to the Tribunal unless I am satisfied that the Tribunal's decision was affected by jurisdictional error. I do not myself have power to decide whether the applicant's claims to be a refugee should be believed, nor whether he qualifies for a protection visa or any other permission to stay in Australia.
This is the second application which the applicant has brought seeking review of the Tribunal's decision. His first application was filed on

5 June 2004, and was dismissed by Driver FM on 1 September 2004 due to the failure of the applicant to file an amended application identifying particulars of any ground of jurisdictional error. The applicant then waited another 10 months before starting a new case.
This conduct is the subject of a response by the first respondent, which claims that the Court should dismiss the application in the exercise of its discretion. I am attracted by that submission, but do not need to address it due to my conclusion below about the substantive merits of the matter.
The applicant was put on notice at a first court date on 2 August 2005 that I would be addressing his matter on a final basis today, and I propose to follow that course.
The applicant arrived in Australia in March 2003 and applied for a protection visa on 22 April 2003 assisted by an agent, Mr Ajay Kumar. In his application form he explained his fears of returning to his country of nationality, India. He said he was a farmer in a small town in Gujurat State and “took active part in all the political activities of BJP”.
He said that he was selected to be a leader of the farmers’ group and, following an incident in February 2002 when Hindu pilgrims were the subject of an attack on a train, he organised a relief camp for the victims. As a result, he claimed to have been attacked by an extremist group, and required treatment in hospital for four weeks. He claimed that no action was taken by the police when he complained. He claimed his crops were set on fire, his home was looted, and his wife and mother were abused. He claimed:
I have been receiving constant threats from the Muslim extremists groups that they would cut my throat if I even dared to lodge a complaint against them.
A delegate refused the claim on 13 June 2003. The delegate in his reasons said that the applicant had provided no relevant details, such as dates and places, for the incidents he claimed. The delegate also thought that there was no valid reason why he could not return to another part of India, where friction between Muslims and Hindus was not as serious as in his home town.
The applicant filed an application for review by the Refugee Review Tribunal on 30 June 2003. He employed Mr Kumar as his agent to receive correspondence, and authorised him to act on his behalf in relation to the case. The application was not accompanied by any additional material, but invited the Tribunal to refer to the Department file. It said a detailed "decision" will be filed later on, but nothing further was submitted.
The Tribunal on 30 September 2003 sent a letter to the applicant at his Griffith address for service, and also sent a copy to his agent, inviting him to attend a hearing on 12 November 2003. The letter told the applicant that the Tribunal had been unable to make a decision in his favour on the information before it.
The letter sent to the applicant's Griffith address was returned "unclaimed", but on 29 October 2003 the applicant's agent lodged a ‘response to hearing invitation’ which indicated:
No, I do not want to come to a hearing. I consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me to appear before it.
The Tribunal did proceed on that basis and, in my opinion, it was entitled to so and made no error when it did.
The applicant today expressed surprise when taken to the documents showing the hearing invitation and its refusal by his agent. However, he has not presented any evidence which suggests that there was any error by the Tribunal in acting upon the communication sent to it by the applicant's authorised agent.
In its statement of reasons handed down on 16 December 2003, the Tribunal referred to the claims made by the applicant and to the history of the matter before it. It also referred to country information and, in particular, a United States Department report in March 2003. This referred to the fact that the applicant's party headed a coalition government in the central government of India and also won elections in December 2002 held in Gujurat. It referred to tensions between Muslims and Hindus, including in Gujurat, but suggested that the police and state government in Gujurat tended to support Hindu fundamentalists rather than the Muslims.
Under the heading "Findings and Reasons" the Tribunal referred to the applicant having presented “minimal detail and supporting information” in connection with his claims to have been attacked by Muslim extremists. It said:
Taking account of the independent country information cited above, the Tribunal finds these claims implausible. The BJP is the ruling party at national level and in the applicant’s home state. The applicant, as a Hindu, belongs to the dominant religious group in his country. He himself states that he lived in the town of his birth in Gujarat until his departure, completing 10 years of education and continuing his work as a farmer until his departure for Australia. He states in his protection visa application that his wife, father, mother and brother remain resident in his home town. On the basis of these facts about the applicant’s life before leaving India and the continuing life there of his family members, the Tribunal is unable to accept that he genuinely holds the fears he claims about his treatment on return.
The applicant's claims are unsupported by details that might enable the Tribunal to reach a finding that his fears about his treatment on return to India are well-founded. …
The Tribunal also addressed the applicant's general situation in relation to general violence between Hindu and Muslim communities, but thought that the independent country information did not support the applicant's contention that the police would be unable to provide assistance against the perpetrators of communal violence. It said:
In view of these factors, the Tribunal is unable to find that the applicant faces a real change of experiencing Convention persecution on his return to India in the conditions applying now or in the reasonably foreseeable future.
I have considered the Tribunal's reasoning, and am unable to identify error made by it which could provide grounds of jurisdictional error.
The original application filed in this Court followed a precedent which contains paragraphs which plainly cannot apply to his case, for example, criticising the interpreter provided at a hearing.
There are also general allegations of failure to exercise jurisdiction, denial of natural justice, bias and failing to conduct proper investigation. However, I can find no substance in those contentions, and the applicant did not attempt to give them meaning in any written or oral submission.
The amended application filed on 30 September 2005 is even less helpful for the applicant, and essentially does no more than assert his refugee status. I reject the contention that the Tribunal's reasoning did not proceed upon a rational or logical foundation.
The applicant filed a written submission which repeated almost verbatim his original visa claims to be a refugee. He also requested more time to get documents from India. The applicant today repeated that request to me but, as I have explained to him, further documents to support his refugee claims cannot assist him in his case in this court, since they would not show that the previous decision of the Tribunal was invalid.
When invited to explain what the Tribunal did which was wrong he said to me that he did not know, and he had nothing to say.
For the above reasons I have not been able to identify jurisdictional error affecting the Tribunal's decision. It is therefore a privative clause decision for which relief is barred by s.474(1) and the applicant's present application is long out of time under s.477(1A). I must therefore dismiss the application.

I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 12 January 2006