SZDOY v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 380

FEDERAL COURT OF AUSTRALIA

SZDOY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 380

SZDOY v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 1846 OF 2004

EMMETT J
21 MARCH 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1846 OF 2004

ON APPEAL FROM A JUDGMENT OF THE FEDERAL MAGISTRATES COURT

BETWEEN:

SZDOY
FIRST APPELLANT

SZDOZ
SECOND APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

21 MARCH 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.the appeal be dismissed;

2.the appellants pay the respondent’s costs in the sum of $2,000.

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	NSD1846 OF 2004

ON APPEAL FROM A JUDGMENT OF THE FEDERAL MAGISTRATES COURT

BETWEEN:

SZDOY
FIRST APPELLANT

SZDOZ
SECOND APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:	EMMETT J
DATE:	21 MARCH 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellants are husband and wife.  They are citizens of India and arrived in Australia on 7 February 2003.  On 17 March 2003, they lodged an application for protection (class XA) visas, under the Migration Act 1958 (Cth). On 15 April 2003, a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), refused to grant them protection visas. On 29 April 2003, they applied to the Refugee Review Tribunal (‘the Tribunal’) for a review of that decision. On 26 March 2004, the Tribunal affirmed the decision not to grant protection visas. The reasons for that decision were published on 20 April 2004.

2. On 18 May 2004, the appellants commenced a proceeding in the Federal Magistrates Court of Australia, seeking relief under the Judiciary Act 1903 (Cth), in respect of the Tribunal’s decision. The grounds of review are without particulars. On 2 December 2004, the Federal Magistrates Court ordered that the application be dismissed and that the appellants pay the Minister’s costs in the sum of $4,000.

3. On 10 December 2004, the appellants filed a notice of appeal to this Court, from the orders of the Federal Magistrates Court.  The grounds of appeal to this Court are also without particulars.  No written submissions were filed on behalf of the appellants.  When invited to address the Court in support of the appeal, the only response was that they do not know English well enough to be able to identify judicial errors.  I had no reason to doubt that assertion but I can only deal with the matter on the basis of the submissions and contentions before the Court.  Nevertheless, having regard to the fact that the appellants have no legal representation, although they are assisted by an interpreter, I shall say something about the reasons of the Tribunal and the reasons of the Federal Magistrates Court. 

4. The Tribunal observed that the husband appellant is of Hindu religion, from Ahmadabad, in India.  He completed nine years schooling in 1978 and ran his own business before coming to Australia.  The wife appellant completed nine years schooling and was a housewife before coming to Australia.  The appellants have two children who remain in India.  The appellants claimed to be at risk of persecution in India, for reasons of religion.

5. According to the statement provided with their protection visa application, the husband operated a successful spare parts business form 1995 until 2000.  At that time, his shop, which was located in an area populated by Muslims, was burnt down by extremists from the Muslim League.  After that, the family went to the United Kingdom, for three months for safety.  After they returned, the husband continued his business, but began to receive threats from Muslim extremists.  On one occasion, he was hit while on his motorcycle and received minor injuries.  He said that he lodged a complaint with the police, but they did not take proper action.  He claimed to have received death threats and, after the Gujarat train tragedy, an incident in which a number of Hindus were killed, he says his name was placed on a hit list.  The husband claimed that he was afraid and tried to relocate with his family, but he believed that sooner or later the extremists would catch up with him.  He said his business began to suffer losses and was eventually shut down.

6. The husband attended a hearing of the Tribunal on 26 March 2004.  The wife was aware of the invitation to the hearing, but was unwell.  Her husband said that she was happy for him to speak on her behalf at the hearing, and did not wish to have the hearing postponed.

7. The Tribunal’s reasons set out, in some detail, the claims that were made by the husband at the hearing.  However, the Tribunal did not find the husband to be an entirely credible witness.  For example, the Tribunal did not accept that the husband would have mentioned being knocked off his motorbike and suffering relatively minor injuries, but would have failed to mention that his shop was seriously damaged by a fire in 2000, if the latter claim were true.  The Tribunal also had difficulty in accepting that the appellant received no assistance from the police despite being constantly and seriously harassed.  In any event, the Tribunal considered that, even if those claims were accepted, the appellants could avoid the possibility of continuing problems with Muslim neighbours by relocating to another part of India.

8. The Tribunal observed that the vast majority of the Indian population is Hindu and that the current main party in the national government coalition is the Hindu Nationalist Party.  The material before the Tribunal persuaded it that the Indian government generally respects human rights, including freedom of religion, and that, while it does not always act effectively to counter religious violence, such violence is more likely to impact upon followers of minority religions than upon Hindus.

9. The Tribunal noted that the appellant himself stated, during the hearing, that he had been safe from harm at the hands of those who had harassed him in the area where his shop was located when he returns to his local village, where he was no longer the only Hindu.  The Tribunal was satisfied, therefore, that the appellants could avoid problems in India by relocating to another part of the country.  The Tribunal considered that it would not be unreasonable to expect the husband to take that step if necessary.

10. The Tribunal found that the husband appellant is relatively young, relatively well educated, and speaks English and Hindi, in addition to Gujarati.  Since the husband had sufficient resources to take his family to the United Kingdom in 2000 and to travel to Australia in 2003, it would not be unreasonable for him to re-establish himself in another part of India, where he would be safe from any harm that may be threatened.  For those reasons the Tribunal was not satisfied that the appellants are persons to whom Australia has protection obligations under the Refugees Convention.

11. As I have said, the grounds of review in the application to the Federal Magistrates Court are without particulars.  They are as follows:

    ‘(1)the Tribunal made its decision in bad faith;

    (2)the Tribunal deprived me of the natural justice;

    (3)the Tribunal denied the evidentiary proof of my claim;

    (4)the Tribunal’s decision did not reflect the material facts of my claim;

    (5)the Tribunal has given a decision which was pre-set in the back of its mind;

    (6)the Tribunal mixed up many facts with this decision which affected the decision;

    (7)the Tribunal concentrated in particular fact while it ignored many other facts in this condition;

    (8)the Tribunal make up its mind without any inquiry regarding my claim and he did not believe my genuine convention based refugee claim;

    (9)I will provide more details later.’

12. The primary judge observed that, notwithstanding the statement that a detailed submission would be filed later, no submission was ever sent to the Tribunal.  His Honour considered that the reasons of the Tribunal indicated that the appellant was fully exposed to all of the concerns of the Tribunal about his case.  His Honour observed that the grounds of review were without particularity.  On the first hearing date before the Federal Magistrates Court, the appellants were directed to file an amended application, with particulars of grounds and written submissions.  That direction was not complied with, and no attempt was made at the hearing of the proceeding before the Federal Magistrates Court, to direct the Court's attention to any flaw in the Tribunal's procedures or reasoning.

13. The grounds of appeal to this Court, as I have said, are without particularity.  They are simply as follows: 

    ‘His Honour Smith FM erred in failing to hold that the decision of the Tribunal made on 26 March 2004 involved an error of the law, being an error including an incorrect interpretation of the applicable law or an incorrect interpretation of the facts as found by the Tribunal.’

14. No error has been demonstrated on the part of the Federal Magistrates Court.  The appeal should be dismissed.

15. The Minister asks for her costs of the appeal.  The appellants advanced no argument against an order for costs.  The Minister also asks that I assess the costs in the sum of $2,000 to avoid further expense in determining an amount of costs.  Nothing was said in opposition to that course by the appellants, other than that they have no money and are unable to meet an order for costs.  The possibility of there being an order to costs was drawn to their attention when the matter came before me for directions.  In the circumstances, it is appropriate to accede to the Minister’s request.  I order that the appeal be dismissed.  I order the appellants to pay the Minister’s costs in the sum of $2,000.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             6 May 2005

The Appellants appeared in person.
Solicitors for the Respondent:	Sparke Helmore
Date of Hearing:	21 March 2005
Date of Judgment:	21 March 2005