SZDSK v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 876

FEDERAL COURT OF AUSTRALIA

SZDSK v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 876

SZDSK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 380 OF 2005

STONE J
28 JUNE 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 380 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDSK APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	28 JUNE 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs.

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	NSD 380 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDSK APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	STONE J
DATE:	28 JUNE 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from the judgment of a Federal Magistrate given on 4 March 2005 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘Tribunal’) made on 21 April 2004 and handed down on 18 May 2004.  His Honour’s reasons are to be found at [2005] FMCA 303.  The Tribunal affirmed the decision of a delegate of the respondent, made on 29 July 2003, refusing to grant a protection visa to the appellant.

2. The appellant, a citizen of India, arrived in Australia on 20 October 2002.  On 29 November 2002, he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs.

   THE TRIBUNAL’S DECISION

3. The appellant claimed to fear persecution for reasons of his race, caste and membership of a particular social group namely, a low caste Hindu family, specifically the Harijan caste.  He claimed that as a result of discrimination that he experienced he formed a social committee to support low caste Hindus and launched protest rallies protesting about their treatment.  He claimed that his activity resulted in him, along with his colleagues, being bashed and humiliated.  He claimed to have been ‘roped into many false cases’ and ‘confined without lawful reason’.

4. The appellant gave oral evidence before the Tribunal.  The Tribunal pressed the appellant to be more specific about what he feared might happen if he returned to India and summarised his response as follows:

   ‘When the applicant was pressed in his oral evidence as to what he specifically feared might happen to him he stated that he had been mistreated by members of the upper caste.  He referred to being part of a group opposing those of the upper caste and as a result being tied to a tree and hit.  However the applicant was not more forthcoming or specific about when this event occurred.  When the applicant was asked as to when this incident occurred he replied that it had always been there since he was very young.  In this sense his oral evidence appears to suggest that there may have been other incidents of assault but if so he did not detail or provide any further information to this effect in his oral evidence.’

5. The Tribunal accepted the appellant’s account of the incident in which he was tied to a tree and also accepted that there may have been other incidents in which he was mistreated by those of higher castes.  However, the Tribunal did not accept that the appellant had a well-founded fear of persecution for a Convention reason. 

6. The Tribunal noted that the appellant had received 13 years of education including a three-year diploma course in mechanical engineering that ‘qualified him to work on boilers and engines including maintenance’.  The Tribunal found that this degree of education, the fact that the appellant learned to read and write in three languages and his family ownership of several acres of land was difficult to reconcile with independent evidence that  Harijans are ‘among the poorest of citizens, generally do not own land and are often illiterate’.  However, the Tribunal was impressed by the independent evidence that there were affirmative action programs in India to redress imbalances owing to caste and was of the opinion that the appellant had benefited from these and ‘could avail himself of these programs in the areas of employment if he so chose’. 

7. The Tribunal found that the essentially social discrimination suffered by the appellant did not constitute serious harm within the meaning of s 91R(2) of the Migration Act 1958 (Cth). The Tribunal also stated:

   ‘I find that there are avenues of protection in India available to persons who fear that their rights may be abused.  Independent information is that there is a fair if slow legal system, a functioning police force, a National Human Rights Commission and a number of human rights organisations.  The applicant does not dispute that these mechanisms exist.  However he claims that those with money and power can use the police and politicians, and that even a person who had a good caste would not win unless they had money.  I accept that those with money and power can at times influence the outcome of legal proceedings. Nonetheless I find that the applicant is able to access the protection of the state against threats of harm emanating from those of higher castes and such protection would not be denied to him for any Convention based reason.’

8. It is apparent that not only did the Tribunal reject the claim of a well-founded fear but also that it doubted that the appellant had a genuine subjective fear.  In this regard the Tribunal stated:

   ‘…in my view if the applicant genuinely felt that his physical safety was seriously and systematically threatened over a number of years at the hands of those belonging to the higher castes then it is surprising that as an educated man, and who in my view was not without a personal capacity and ability to assert his rights, he did not take some steps to complain to the police, human rights agencies or simply remove himself from his situation.

   It is not clear to me why the applicant did not at least attempt to move somewhere else in India and thus remove himself from the reach of these individuals.  Rather he appears to have been content to remain in his town … for many years and then suddenly in 2002 to leave the borders of his country without taking any steps or making any serious attempt to address or avoid what he saw as his predicament.  Indeed his evidence does not even refer or point to any specific event which would serve as a catalyst for his departure in 2002.’

9. The Tribunal did not accept the appellant’s claim that his caste difficulties would follow him where he went in India.  The Tribunal instead accepted the independent country information that caste differences are not as prominent in Indian cities and found that the difficulties that the appellant had experienced in his local area would not follow him elsewhere.  The Tribunal emphasised that its findings on the issue of relocation should not be read as implying a finding that the appellant had a well-founded fear of Convention persecution in his local area but were put forward as ‘an additional reason’ for finding that the appellant was not a refugee. 

   FEDERAL MAGISTRATE’S DECISION

10. Although the appellant put several grounds for an application for review before the Federal Magistrate, his Honour noted that the grounds were not pleaded with sufficient detail to allow him to understand their relevance to the Tribunal’s decision.  Although the appellant was present at the hearing of his application he made neither written nor oral submissions.  Not surprisingly his Honour was unable to find any jurisdictional error in the Tribunal’s reasons and dismissed the application.

    THIS APPEAL

11. The amended notice of appeal similarly lists a number of grounds of appeal that are entirely without particulars and largely replicate those put before the Federal Magistrate.  I do not propose to canvass those that were dealt with by his Honour other than to say that I agree with his Honour for the reasons he gave. 

12. The remaining grounds are that the Federal Magistrate failed:

    (a)‘to render justice’ under the Migration Act or the Judiciary Act 1903 (Cth);

    (b)to follow the procedures required by the Migration Act; and

    (c)to find that the Tribunal had not made a proper and thorough investigation of the appellant’s case.

    I find nothing in his Honour’s reasons that would support such claims.  To the contrary his Honour appears carefully to have reviewed the Tribunal’s reasons and the grounds of the appellant’s application in so far as his Honour understood them. 

13. At the hearing of his appeal today the appellant again did not make any submissions either oral or written.  In the circumstances the appeal must be dismissed with costs. 

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:             28 June 2005

The Appellant appeared in person
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	28 June 2005
Date of Judgment:	28 June 2005