SZOCI v Minister for Immigration and Citizenship

[2010] FCA 867

FEDERAL COURT OF AUSTRALIA

SZOCI v Minister for Immigration and Citizenship

[2010] FCA 867

Citation:		SZOCI v Minister for Immigration and Citizenship [2010] FCA 867
Appeal from:		SZOCI v Minister for Immigration [2010] FMCA 336
Parties:		SZOCI and SZOCJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 580 of 2010
Judge:		RARES J
Date of judgment:		9 August 2010
Date of hearing:	9 August 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	19
Counsel for the Appellants:	The appellants did not appear
Counsel for the First Respondent:	Y Shariff
Solicitor for the First Respondent:	Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 580 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOCI
First Appellant

SZOCJ
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE OF ORDER:	9 AUGUST 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellants pay the first respondent’s costs fixed at the sum of $2,300.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 580 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOCI
First Appellant

SZOCJ
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE:	9 AUGUST 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

1. Neither appellant appeared when this appeal was called on this morning. The Minister asked that the appeal be dismissed pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) by reason of the failure of the appellants to attend the hearing of this appeal. The Minister had filed a substantive outline of submissions and I have been informed by counsel for the Minister that these were sent to the appellants. In my opinion, this appeal should be dismissed.

2. The appellants are husband and wife, being citizens of the Republic of India.  They arrived in Australia in June 2009 and applied for protection visas in July 2009.  A delegate of the Minister refused to grant those visas in late August 2009.  The appellants applied to the tribunal for a review of that decision.  The tribunal considered the appellants’ claims and the evidence that the husband gave.  It noted that there were significant inconsistencies between what the husband had told the tribunal and what he had previously put in his application for a protection visa.  The tribunal affirmed the delegate’s decision.

   THE GROUNDS OF APPEAL

3. The notice of appeal from the decision of the Federal Magistrate’s Court in SZOCI v Minister for Immigration [2010] FMCA 336 was formulaic. It did not identify any ground of appeal that would enable the Court to perceive an error in her Honour’s judgment. The grounds were merely that her Honour:

   ·“failed to find error of law, jurisdictional error, procedural fairness and relief under s 39B of the Judiciary Act 1903”;

   ·dismissed the case without considering the legal and factual errors contained in the decision of the tribunal;

   ·failed to take into consideration that the tribunal’s decision was unjust;

   ·made her decision without taking into account the full gravity of the appellants’ circumstances and the consequences of the claim.

4. What was asserted as the first ground was undoubtedly correct.  Her Honour did fail to find any error of law or other basis on which the appellants could be granted relief.  That was because, having read the decision of the tribunal and her Honour having carefully considered it, no error entitling the appellants to constitutional writ relief was disclosed.  This ground needs no further consideration.

   THE APPELLANTS’ ORIGINAL CLAIMS

5. In his application for the protection visa, the husband claimed that he and his wife lived in a village about 30 km from Ahmedabad.  He asserted that the place was dominated by Muslims.  He asserted that few Hindu families lived in the area.  He claimed that he was a farmer and had five acres of land cultivated twice a year in order to live.  He claimed he had problems caused by a Muslim named Gulab Bhai, who lived in the village and always dominated Hindus by interrupting their cultural activities.  He claimed that Mr Gulab had contacts with an underworld gang and, although he had been arrested by police many times, Mr Gulab had several contacts with politicians.  He claimed Mr Gulab was planning to build a factory in the village close to his land and that due to water problems on Mr Gulab’s site, he wanted to grab the appellant’s land at a cheap price.  The husband claimed that he had refused to sell, but Mr Gulab had produced false documents obtained by use of his influence and forced the appellants to leave.  He claimed that Mr Gulab had come to their home and asked the family to vacate the land, alleging that it belonged to Mr Gulab’s wife.  The husband claimed he had a fight with Mr Gulab and that they had been attacked in their home twice by his gang.  He claimed to have made a complaint to the police but that no action had been taken.

6. The husband claimed that they had managed to sell a part of their land to a third party, which further enraged Mr Gulab and that since that time, Mr Gulab had tried to kill the appellants twice.  He claimed that if they returned to India their lives would be in danger and that as they were elderly, it was very hard to live in any other place than in their village.

   THE DELEGATE’S DECISION

7. The delegate rejected these claims on the basis that no Convention ground was raised by them.  In essence, he found that the essential and significant reason for the harm feared was the husband’s refusal to sell his farm cheaply or to allow himself to be swindled out of the possession of his land through fraud.  He did not consider that the husband or wife were, or were part of, a meaningful particular social group for the purpose of the Convention.

   THE TRIBUNAL’S DECISION

8. The tribunal found that the population of India was 80.5% Hindu and 13.5% Muslim, and that the 2001 census had indicated that in the appellants’ district, Muslims made up 3.7% of the population.  It also found that the BJP was the political party in power in Gujarat and that that party was linked to Hindu nationalists.

9. The tribunal examined a number of inconsistencies between what the husband had asserted in his visitor’s visa application made in May 2009 and during the course of his evidence.  Among others, it noted that in his visitor’s visa application, he had said that he was a partner in a business of wholesaling and distributing medicines in India in contrast to his more recent assertion that he was a farmer.  His explanation to the tribunal concerning the information in the earlier visa application was that the material that had supported it had been fraudulently obtained by him.

10. The tribunal did not accept that explanation nor did it accept the husband’s claims or his evidence.  It found that he did not have a well-founded fear of persecution.  It found that even if it had been prepared, as it was not, to accept that the husband had been harassed by Mr Gulab, the reason for the conduct was not for matters of religion but because Mr Gulab wanted the water and the amenity which the husband’s land offered to water.  The tribunal found that any harm inflicted or threatened by Mr Gulab was not motivated by any Convention reason and that in addition, the authorities in India would not discriminatorily withhold protection from the actions of Mr Gulab for any Convention reason.

    THE TRIAL JUDGE’S DECISION

11. Her Honour considered the tribunal’s reasons and the grounds of the appellants’ application to the Federal Magistrates Court, namely, that the tribunal had:

    ·failed to honour an undertaking to put matters to the appellants under s 424A of the Migration Act 1958 (Cth) to make submissions about matters;

    ·not given country information to the appellants in alleged contravention of s 424A;

    ·failed to find the appellants to be refugees;

    ·failed to investigate their claims, specifically of their alleged persecution in India, resulting in the tribunal’s decision being biased.

12. Her Honour rejected those grounds. She found that the tribunal had indicated orally to the husband, during the course of the hearing, that he could provide a written response to matters it had raised, within 14 days pursuant to s 424AA. Her Honour found that the tribunal had no obligation in the circumstances to put any material to the appellants in writing under s 424A. The trial judge found that the tribunal had given the appellants the opportunity to provide further responses and information within 14 days, but that no material at all had been received by it, nor was there any evidence before her Honour that an attempt had been made by the appellants to provide the tribunal with any such information or response. I am unable to perceive any error of her Honour’s rejection of the first ground.

13. The second ground was that the tribunal had failed to comply with s 424A in respect of country information. This ground was hopeless by reason of s 424A(3)(a). Her Honour correctly rejected it.

14. The third ground was, again, one that identified no error and was at best an invitation for her Honour to engage in impermissible merits review.  Her Honour correctly rejected it.

15. The last two grounds were, also, at best an invitation for her Honour to engage in impermissible merits review, which her Honour correctly resisted.  Her Honour also rejected the allegation of bias as having no foundation.  I agree with the reasons that she gave.

16. Her Honour raised a concern with counsel for the Minister about whether the tribunal’s decision may have miscarried because it had been rescheduled at the appellants’ request to take place in Queensland.  On the rescheduled day for the hearing, the husband asserted that his wife was not well and could not attend the video link hearing.  The tribunal informed the husband, during the hearing, that if he provided evidence, such as a medical certificate, within 7 days that his wife was unwell, it would provide her with another opportunity to give evidence to the tribunal.  No such material was provided to the tribunal.  Therefore, it was entitled to proceed pursuant to s 426A of the Act, as her Honour found.  The trial judge noted that the wife had not attended the hearing before her, but that no issue was raised about that matter.

    THIS APPEAL

17. In my opinion, there is no basis on which this appeal could succeed.  Despite the Minister’s application for it to be dismissed for failure of the appellants to appear, in my opinion, it should be dismissed on the merits.  The matter had been set down for hearing today.  The Court has been convened.  The material in the appeal book does not reveal any basis upon which the appeal could have succeeded.

18. For these reasons, the appeal should be dismissed.

19. The Minister applied for costs based on an estimate in an affidavit of Jamie Dinihan of 6 August 2010.  The affidavit made a claim for costs to be fixed in the sum of $2,845.  I have had regard to the material in that affidavit.  However, in my opinion, because of the way in which the proceedings were conducted today, a number of the costs anticipated to be incurred in that affidavit will not be incurred.  Having regard to the contents of the affidavit, in all the circumstances, I am satisfied that I should fix $2,300 as the costs in this matter.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:       13 August 2010