SZGHB v Minister for Immigration

[2006] FMCA 1814

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGHB v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1814

MIGRATION – RRT decision – Hindu from India claiming persecution by Muslims – Tribunal found effective protection was available – application for judicial review dismissed for non‑attendance – reinstatement refused.

Federal Magistrates Court Rules 2001 (Cth), rr.13.03A(c), 16.05(2)(a)
Migration Act 1958 (Cth), s.483A

Applicant: SZGHB

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG1223 of 2005

Judgment of: Smith FM

Hearing date: 21 November 2006

Delivered at: Sydney

Delivered on: 21 November 2006

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Ms E Palmer

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The Tribunal is included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent. 

2. The applicant’s application under r.16.05(2)(a) to set aside orders made on 28 September 2006 is refused.

3. The applicant must pay the first respondent’s costs in the sum of $400. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1223 of 2005

SZGHB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The substantive matter in this proceeding is an application filed on 12 May 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”), which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 29 March 2005 and handed down on 20 April 2005.  The Tribunal affirmed a decision of a delegate made on 23 September 2004, which refused to grant a protection visa to the applicant. 

2. The application was listed at a first court date before a Registrar on 27 May 2005 and was adjourned due to the absence of an interpreter.  On 10 June 2005 the applicant attended before a Registrar where a Malayalam interpreter was available.  The Registrar made orders allowing the applicant to file an amended application and evidence, and listed the matter for final hearing before me on 28 September 2006 at 10.15 am.  The applicant was ordered to file a written submission 14 days before the hearing.  He was also informed about the Court’s free legal advice scheme, and received a referral under that scheme to an experienced barrister.  He did file an amended application but did not file any written submissions.  

3. At the hearing on 28 September 2006, there was no appearance by the applicant or on his behalf, and no contact was made to the Court to explain his absence. I was satisfied that he had received proper notice of the hearing, and dismissed the application under r.13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) due to his absence.

4. On 8 November 2006, the applicant filed an application which in effect sought the setting aside of my previous order.  The only evidence in support of that application is in his affidavit, which says: 

   1.I could not attend the hearing on 28th September 06.  I was sick and [illegible] and there were no one to help me. 

   2.Also I get this letter too late so I could not apply on right time, therefore I pray that honourable Court may be pleased to excuse me the delay of the days. 

5. No evidence corroborative of the claim of incapacity to attend has been provided, and the applicant had no medical evidence to present today.  He claimed in unsworn evidence that he had been sick on that day with an unspecified illness, and had received medication from an unnamed hospital. 

6. I was not persuaded by the applicant’s evidence that he had a good explanation for his absence, but the representative of the Minister did not seek to cross‑examine him.  I might have been inclined to have given him the benefit of the doubt, if I had been satisfied that his application for judicial review had any prospects of success.  However, I have decided that it does not have any arguable substance. 

7. The applicant arrived in Australia in August 2004.  On 16 August 2004 he lodged an application for a protection visa assisted by a migration agent.  In a handwritten attachment he explained why he sought protection in Australia against return to his country of nationality, India. 

8. The applicant said he was a Hindu from Kerala State, aged 30 years.  He referred to his schooling, and a period when he had worked in Dubai from 1996 to 2000.  He said that he had then returned to India and started an interior decoration business.  He said that he had attended religious meetings, and in August 2003 politicians from the Muslim League had come to his office, smashed everything and beaten him.  He claimed that false allegations had been made against him which led to his imprisonment for 15 days.  He claimed police had not protected him.  He claimed further harms from Muslim fanatics raiding his home, and that in 2004 “twice I was caught by Kerala Police and tortured”.  He claimed that in June 2004 he conducted a rally on behalf of the majority Hindus, and had become a target for Muslim fanatics. 

9. The applicant presented no corroborative evidence to the Department nor to the Tribunal, but attended a hearing before the Tribunal on 25 January 2005. 

10. In its statement of reasons, the Tribunal identified the claims made by the applicant, and the evidence he had given at his hearing.  He claimed that he had become “an active member” of the RSS, an organisation espousing a return to Hindu values.  He repeated the claims that he had made in his written statements. 

11. The Tribunal set out extensively background independent information concerning the position of Hindus in India, and in Kerala in particular.  It considered the situation of RSS members. 

12. At the commencement of its “Findings and Reasons”, the Tribunal expressed a conclusion: 

    Even if I accept the applicant’s claims I do not accept, as plausible, that Hindus or members of the RSS or their supporters do not receive the protection of the Indian authorities or of the Kerala authorities if attacked by Muslims or members of the Muslim League.  Nor do I accept as plausible that the police of Kerala actively torture Hindus or RSS members.  

13. The Tribunal referred to the sources of the information which it preferred over the evidence of the applicant.  The Tribunal made a clear finding that it was satisfied that the applicant did not suffer Convention‑related persecution in India, and rejected the applicant’s claims that he had been denied protection by police, and that the police had been complicit in attacks on him and favoured Muslims. 

14. The Tribunal considered the situation if the applicant returned to India, and made a finding that:  

    In the event that the applicant did not wish to reside in an area in India where there was an increasing Muslim population the applicant would be able to live elsewhere. 

15. The Tribunal referred to the applicant’s leaving Kerala on at least two occasions to work elsewhere, and to the applicant’s ability to travel to Australia, find a job, and live here away from his family. 

16. The Tribunal made a clear finding in relation to the availability of protection in India.  It said:  

    Practical protection from harm is available in India.  India has effective judicial and law enforcement agencies, is governed by the rule of law and has an infrastructure of laws designed to protect its nationals against harm of the sort feared.  India has a functioning police force and an independent judiciary.  I have found no evidence to suggest that the applicant would not have the practical protection of the Indian state. 

    I am satisfied that the applicant, a Hindu from Kerala is able to return to India. 

17. I have considered the reasoning and procedures of the Tribunal and am unable to identify any arguable jurisdictional error. 

18. The applicant’s original application in this Court contains two general allegations of jurisdictional error: “the RRT has not considered my claims and evidence produced” and “RRT denied natural justice”.  No particulars of these contentions are provided, and no substance has been given in any subsequent documents filed by the applicant or submissions made by him.  I am unable to give them any substance myself. 

19. The applicant’s amended application filed on 4 August 2005 contains nine paragraphs criticising the Tribunal’s decision and claiming error on its part.  However, in my opinion, the criticisms do not extend beyond criticisms of the merits of its factual conclusions.  To the extent that they suggest that the Tribunal failed to consider the applicant’s claims and evidence, I do not consider that this has any support in the material before me.  I am unable to identify in the amended application any argument which might win the case for the applicant if I reinstated his application. 

20. The applicant today had no submissions to make in support of allowing the reinstatement of his application, other than a claim that he could not return to India.  However, it is not the function of this Court to consider whether he is a refugee.  Before I could give him any relief, he would need to establish jurisdictional error by the Tribunal. 

21. For the above reasons I do not consider that he has shown any argument with any prospect of success.  In the circumstances, I consider it is appropriate to refuse his application to set aside my previous order. 

I certify that the preceding twenty‑one (21) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  15 December 2006