SZDRC v Minister for Immigration - [2004] FMCA 1036

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDRC & ANOR v MINISTER FOR IMMIGRATION

[2004] FMCA 1036

MIGRATION – RRT decision – Hindu in India fearing Muslim extremists – did not attend Tribunal hearing – no error identified.

Migration Act1958 (Cth), s.483A, Part 8

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476

Applicants:

SZDRC & ANOR

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 1570 of 2004

Delivered on:

22 December 2004

Delivered at:

Sydney

Hearing date:

22 December 2004

Judgment of:

Smith FM

REPRESENTATION

Counsel for the Applicants:

Applicants in person

Counsel for the Respondent:

Mr D Jordan

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
The applicants to pay the respondent's costs in the sum of $4000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1570 of 2004

SZDRC & SZDRD

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under s.483A of the Migration Act 1958 (Cth) challenging a decision of the Refugee Review Tribunal dated 8 April 2004 and handed down on 4 May 2004. The Tribunal affirmed a decision of the delegate refusing an application for protection visas made by the two applicants, a husband and wife.
Under s.483A the Court has the same jurisdiction as the Federal Court, which is its judicial review jurisdiction subject to limitations under Part 8 of the Migration Act. As interpreted by High Court in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 and subsequent cases, the Court's powers are limited to providing relief only when jurisdictional error can be found in the proceedings or reasoning of the Tribunal.
In the present case the applicants arrived in Australia on 18 September 2003 on a short-term visitor's visa. They applied for the protection visa on 1 October 2003. In a narrative attached to their visa application the male applicant indicated that he was a person of Hindu religion living in the Indian State of Gujarat. He indicated that he moved to the city of Ahmedabad and started a business in an electronics and electrical shop in 1981. Around the same time he joined the political party BJP and started taking part in its activities. He said that things were going normal up to the period of year 2002. He said his shop was located in an area which was basically dominated by the Muslim community.
He referred to an episode in February 2002 at a station in Gujarat where a passenger train was set afire by Muslim extremists. He referred to subsequent major Hindu/Muslim riots and said that in March 2002 he was attacked and severely beaten by Muslim extremists and his shop was looted and burned down. He said a further attack occurred in his home in May 2003. He said he reported both of these matters to the police but they failed to find the culprits. He said that his whole family was terrified, and with his wife he decided to leave the country and come to Australia.
In response to the question:
Do you think the authorities of that country can and will protect you if you go back?
He said:
Though BJP rules the nation and the state of Gujarat as well but authorities are failed in giving an adequate protection in order to protect the lives
.....
We still owing a fear of persecution upon our return to India by the hands of Muslim extremists and terrorists organisations.
After the delegate refused to grant protection visas, the applicant appealed to the Refugee Review Tribunal assisted by an agent. The application said: “A detailed submission will be filed later”, but no submission or other material in support of the application was ever given to the Tribunal. As was the delegate, the Tribunal was left without any corroborative or supportive material against which to test the veracity of the applicants’ claims.
On 12 January 2004, the Tribunal sent a letter to the male applicant at his stated residential address, with a copy to his immigration agent and “authorised recipient”, indicating that the Tribunal had considered the material before it but was unable to make a decision in the applicants’ favour on that material alone. The letter invited the applicant and his wife to attend a hearing of the Tribunal to give oral evidence and present arguments in support of their claim. An appointment was made for 8 April 2004.
On 25 March 2004 the Tribunal received a note from the agent stating that the applicant: “Is not willing to attend the hearing.”
In these circumstances, the Tribunal decided to make a decision without taking further action to inquire into the applicants' claims. Section 426A of the Migration Act authorised it to take this course.
In its reasons, the Tribunal accepted that the applicants have a fear of Muslim extremism, living as they had done in a Muslim dominated neighbourhood in a State that had seen a deal of ugly violence between Hindus and Muslims. However, the Tribunal referred to the absence of evidence indicating Hindus were denied protection in Gujarat, or suggesting that the police in Gujarat or elsewhere in India were unwilling and unable to offer protection to Hindus threatened by Muslim extremism. The Tribunal said: “the suggestion is fanciful, given that Hindus are a powerful majority in India.”
The Tribunal was not satisfied that the applicants lacked protection in India in relation to their claims. It also thought that the applicants could remove themselves from a possible position of particular vulnerability by moving away from their Muslim dominated neighbourhood to a Hindu neighbourhood in India.
The Tribunal's reasoning is expressed shortly and tersely, but in my view it has adequately addressed the claims made by the applicant. I can find no error of law in its reasoning or procedures.
The application filed in this Court contained a list of heads of judicial review without any particulars allowing them to be meaningfully applied to the Tribunal’s present decision.
Prior to the hearing the applicant filed two documents by way of submission. The authorship of these documents is not clear. However, they are in terms familiar to the Court and contain a general allegation of "actual bias" for which I can find no substance.
They also make a garbled submission addressing the proposition that:
The grounds and relief is very much similar with a recent High Court judgment –Muin v Refugee Tribunal.
The applicant was unable to explain this submission so that I could understand how it might relate to his case. Indeed he told me that he was not able to find errors in what the Tribunal did. It is enough for me to say that Muin’s Case has no application to the present case since there is no evidence of any favourable information which the applicant was mislead into thinking was considered by the Tribunal but which it ignored. Nor is there any evidence of any adverse material which was taken into account, and which the applicants did not have a proper opportunity to answer.
For the above reasons I dismiss the application.

RECORDED : NOT TRANSCRIBED

I shall order the applicants to pay the respondent’s costs in the sum of $4,000.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 12 January 2005