SZOJH v Minister for Immigration and Citizenship

[2010] FCA 1235

FEDERAL COURT OF AUSTRALIA

SZOJH v Minister for Immigration and Citizenship [2010] FCA 1235

Citation:		SZOJH v Minister for Immigration and Citizenship [2010] FCA 1235
Appeal from:		SZOJH v Minister for Immigration and Citizenship [2010] FMCA 445
Parties:		SZOJH v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 854 of 2010
Judge:		SIOPIS J
Date of judgment:		12 November 2010
Date of hearing:	9 November 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	23
Counsel for the Appellant:	The Appellant appeared in person.
Counsel for the First Respondent:	Ms E Baggett
Solicitor for the First Respondent:	DLA Phillips Fox

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 854 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOJH
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE OF ORDER:	12 NOVEMBER 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant is to pay the first respondent’s costs.

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 854 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOJH
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE:	12 NOVEMBER 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of India who arrived in Australia on 2 April 2009.  On 27 August 2009, the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship.

2. In his protection visa application, the appellant claimed to fear persecution on the basis that he was a member of a particular social group.  Specifically, he claimed he faced persecution in India from the upper class of Hindus, as he belonged to the Harijan caste of Hindus.  He claimed that his father was a farmer, but was discriminated against because of his membership in the Harijan caste.  He claimed that as a result, the family had to stop farming.

3. The appellant claimed that he formed a “social committee” with other low caste Hindus, with the aim to uphold rights for lower caste Hindus in his district.  He protested against the treatment of low caste Hindus, wrote a “chart of demand”, and advocated for better employment opportunities for them.

4. The appellant claimed the Rashtriya Swayamsevak Sangh and Bharatiya Janata Party, who are “Hindu hard liners”, are in power and that India “…is a theocratic state” which now firmly believes in fundamental principles of Hinduism.  He also claimed that he was “roped into many false cases”, beaten by upper class Hindus, unlawfully detained, and discriminated against.

5. A delegate of the first respondent found there was no indication that the Indian government was unable or unwilling to offer effective protection.  On 16 November 2009, the delegate refused the appellant’s application for a protection visa.

   THE TRIBUNAL

6. On 7 December 2009, the appellant applied to the Refugee Review Tribunal (the Tribunal) for a review of the delegate’s decision.

7. On 23 December 2009, the Tribunal wrote to the appellant advising him that it had considered all the material before it relating to his application, but that it was unable to find in his favour based on that information alone.  The Tribunal invited the appellant to give oral evidence and present arguments at the hearing on 1 February 2010.  In that letter, the Tribunal enclosed a “Response to Hearing Invitation” form and directed the appellant to complete and return that form by 13 February 2010.  The appellant did not respond in any way to the letter of invitation by the Tribunal.

8. Subsequently, the Tribunal appears to have realised it had put an incorrect date for the appellant to return the “Response to Hearing Invitation” form. In the circumstances, the Tribunal decided to reschedule the hearing. On 1 March 2010, the Tribunal sent an invitation to the appellant to appear before the Tribunal in a hearing scheduled for 30 March 2010. The invitation letter requested the appellant to complete and return the “Response to Hearing Invitation” form by 17 March 2010. On 29 March 2010, the Tribunal received the “Response to Hearing Invitation” form from the appellant, indicating that he did not wish to take part in the Tribunal hearing. As a result, the Tribunal decided to determine the matter on the information available to it, pursuant to s 426A of the Migration Act 1958 (Cth) (the Act).

9. The Tribunal found that it was not satisfied as to the appellant’s claims.  At [37] of its reasons for decision, the Tribunal stated that:

   There are insufficient particulars as to the detail of the applicant’s claims to enable the Tribunal to establish the relevant facts.  Because he did not attend a hearing, the Tribunal has been unable to explore the detail of his claims...or their truthfulness.  Therefore the Tribunal is unable to be satisfied that any of his claims are true.

10. By a decision signed on 31 March 2010, the Tribunal affirmed the decision of the delegate.

    THE FEDERAL MAGISTRATES COURT

11. The appellant brought an application for judicial review of the Tribunal’s decision in the Federal Magistrates Court.  The grounds of review were set out in the appellant’s amended application for review, filed on 10 June 2010.  As noted by the Federal Magistrate, the amended application sets out one ground for review over three typed pages.  The claims and statements made in the amended application were not clear, but the Federal Magistrate was able to discern the following complaints:

    1.On the basis of the country information the Tribunal should have accepted his claim as being in need of refugee protection.

    2.The Tribunal did not properly, or fully, consider his claims.

    3.The Tribunal should have addressed the question of whether the appellant fell within a particular social group.

    4.The Tribunal’s letter of invitation to a hearing revealed that it had made up its mind at that time to find against the appellant.

    5.The appellant’s factual claims as set out in his initial statement reveal that he met the necessary elements to be recognised as a refugee.

12. The Federal Magistrate held that in all the circumstances the appellant consented to the Tribunal proceeding to make a decision without him appearing before it, and pursuant to s 425(2) and s 425(3) of the Act, he, therefore, lost his entitlement to appear before the Tribunal as set out in s 425(1) of the Act. The Tribunal was thus entitled to proceed in the way that it did pursuant to s 426A of the Act.

13. Furthermore, the Federal Magistrate noted that in any case, the Tribunal waited until the scheduled hearing date before proceeding to a decision. However, the appellant did not appear at the scheduled hearing. Therefore, the Federal Magistrate held that on either of these two bases, the Tribunal was entitled to proceed in the way that it did pursuant to s 426A.

14. In respect of the complaint that the Tribunal did not consider country information, the Federal Magistrate noted that there was no obligation on the Tribunal, in these circumstances, to conduct an investigation to find independent sources which may verify an applicant’s general claims.  Whether the Tribunal had regard to country information was a matter for the Tribunal.  Further, the weight to be given to any country information is for the Tribunal to determine.  However, the Federal Magistrate went on to state that the reason the appellant’s claim failed was because it was not sufficiently particularised.

15. The contention that the Tribunal did not address the question of whether the appellant fell within a particular social group was also rejected by the Federal Magistrate.  The Federal Magistrate held that a fair reading of the Tribunal’s decision indicated that it did in fact consider his claims carefully, and did engage in an active intellectual consideration of his claims.  The complaint that the Tribunal did not properly consider his claims also failed for the same reason.

16. As to the complaint that the Tribunal had already made up its mind when it sent him the letter of invitation, the Federal Magistrate did not accept that the Tribunal’s letter suggested a closed mind, since, by its terms, it invited the appellant to make submissions and present evidence.  Further, the Federal Magistrate found that the terms of the letter was clearly an insufficient basis on which to allege bias or the apprehension of bias.

17. The Federal Magistrate found that the remainder of the amended application sought an impermissible merits review, and dismissed the application for judicial review.

    THE APPEAL

18. The appellant filed a notice of appeal on 9 July 2010, which contained three grounds of appeal.  Those grounds are repeated below:

    1.That the Learned Federal Magistrate has failed to determine the question of law that the RRT failed to give the satisfactory decision points raised by the applicant the question of law were ignored as such there is a jurisdictional error.  The applicant has challenged the statement of decision wherein the learned FM failed to answer the applicants assertions on the decision.  The applicant is not represented by a lawyer, the applicant by way of claim submitted his claim before the respondents.  The applicant had to undergo lot of persecution and the discriminations by the hands of the upper class of Hindus.  The applicants father was based with the result that he become paralyzed.  There occurs a legal and jurisdictional error committed by the respondent.

    2.That the applicant/appellant submits that there are number of atrocities committed upon the applicants class, the applicant caste is so much facing the discriminations that the applicants peoples are not allowed to use the water, and the applicants class of lower Hindu Harijian class, there are reports that the peoples from the applicants class are forced to do the work in latrines, and are forced to work even without any salary, they are forced to undergo the as salves, as it is widely known to the various human rights commission, there are reports from the U S country information that in many instances the Harijans were burnt alive, this can be found in many human rights reports.  These fats were not considered by the respondents.  The issues were not addressed by the RRT,  This issue was not dealt by the respondents or by the lower court.  This is a question of law, which this honorable courts if thinks fit may address in the circumstances of the cases, the applicant requests that these issues may kindly be addressed.

    3.That the Respondents have failed to address the claim as submitted by the applicant and also the RRT also failed to give an judgment/decision on the issue raised by the applicant.  This has resulted in the error of the law.

19. The appellant advanced no submissions at the hearing identifying any error by the Federal Magistrate.  However, the appellant’s notice of appeal can be construed as contending that the Federal Magistrate had made the following errors.  First, the Federal Magistrate erred in failing to find that the Tribunal had not addressed the appellant’s claim.  Secondly, the Federal Magistrate erred in failing to find that the Tribunal had not had regard to relevant country information.  Thirdly, the Federal Magistrate erred in failing to undertake a merits review of the appellant’s application.

20. As to the appellant’s complaint that the Tribunal had not addressed the appellant’s claim, which I have treated as being the gravamen of grounds one and three of the grounds of appeal, the Federal Magistrate did not err.  The Tribunal correctly summarised the appellant’s claim which was that the appellant had been persecuted because he was a member of a lower caste of Hindus and he had become an activist, seeking to uphold the rights of the lower caste.  Further, the Tribunal addressed that claim by finding that it was not sufficiently particularised for it to be satisfied of the facts alleged.  It was clearly open to the Tribunal to come to that view.  The Tribunal did not fall into jurisdictional error, and the Federal Magistrate did not err in so finding.

21. As to the appellant’s complaint that the Tribunal did not have regard to country information supporting his claim, which I have treated as being the gravamen of ground two of the grounds of appeal, the Federal Magistrate did not err.  The Federal Magistrate noted that the country information to which the Tribunal had regard was a matter for it, but went on to state that the reason that the appellant’s claim failed was that the Tribunal was not satisfied that the appellant himself had suffered or would suffer persecution as alleged, because of the lack of particularity of his claim.  The Tribunal did not reject the appellant’s claim on the basis that it was not satisfied that there was discrimination against the Hindu Harijian caste.  The Tribunal did not fall into the jurisdictional error contended for, by the appellant.  The Federal Magistrate did not err in so finding.

22. As to the complaint that the Federal Magistrate did not undertake a merits review of the appellant’s claim, the Federal Magistrate did not err.  The Federal Magistrate did not have the jurisdiction to consider the merits of the appellant’s claim that he was a person who held a well-founded fear of persecution for a Convention reason.

23. The appeal is dismissed.

I certify that the preceding twenty‑three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:

Dated:        12 November 2010