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MIGRATION - RRT decision - Indian Hindu feared persecution from Muslim extremists - no error identified.

SZDOY v Minister for Immigration [2004] FMCA 951 (2 December 2004)

SZDOY v Minister for Immigration [2004] FMCA 951 (2 December 2004)
Last Updated: 22 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDOY v MINISTER FOR IMMIGRATION
[2004] FMCA 951




MIGRATION - RRT decision - Indian Hindu feared persecution from Muslim extremists - no error identified.




Migration Act 1958 (Cth), ss.483A, Part 8

Judiciary Act 1903 (Cth), s.39B

Applicants:
SZDOY & SZDOZ




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG 1465 of 2004




Delivered on:


2 December 2004




Delivered at:


Sydney




Hearing date:


2 December 2004




Judgment of:


Smith FM




REPRESENTATION

Counsel for the Applicants:


In Person




Counsel for the Respondent:


Ms R. Pepper




Solicitors for the Respondent:


Sparke Helmore Lawyers




ORDERS

(1) Application dismissed.

(2) Applicants to pay the respondent's costs in the sum of $4000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG 1465 of 2004

SZDOY & SZDOZ



Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
(revised from transcript)

1. This is an application invoking the Court's jurisdiction under s.483A of the Migration Act 1958 (Cth) challenging a decision of the Refugee Review Tribunal handed down on 20 April 2004. In that decision, the Tribunal affirmed a decision refusing to grant a protection visa to the applicants.

2. Section 483A gives the Court "the same jurisdiction as the Federal Court in relation to a matter arising under this Act". That jurisdiction is a judicial review jurisdiction given by s.39B of the Judiciary Act 1903 (Cth) subject to limitations under Part 8 of the Migration Act. As interpreted by the High Court of Australia, these provisions require an applicant in a case such as the present to establish that the Tribunal's decision was affected by a serious legal error which can be characterised as a jurisdictional error.

3. Unless jurisdictional error can be found in the procedures or reasoning of the Tribunal, this Court has no power to send the case back for a re-hearing by the Tribunal. The merits of the Tribunal's decision are not themselves a matter that this Court can revisit.

4. In the present case the applicants, a husband and wife, applied for a protection visa with the assistance of an agent and solicitor on 17 March 2003, shortly after arriving on a tourist visa from India. The solicitor summarised his instructions, putting forward a claim as follows:

2. The applicant states that he is Hindu by religion. He is stated to be under matriculate.

3. The applicant states that he started his business of spare parts in the year 1995 in the name of XX co.

4. The applicant states that till 1999 he was running his business successfully. In the year of 2000 he became the victim of Hindu - Muslim riots. His shop which was located in Muslims populated area was burnt down by the extremists group belongs to Muslim league party.

5. Applicant states that he and his family members were also started receiving life threats and demand for ransom to save their lives from Muslim extremists group of Muslim league.

6. The applicant states that to avoid the situation and to save him and his family from the life threats he went to UK with his wife for about three months.

7. The applicant states that after coming back from UK in Feb. 2001 he concentrated on his business but the extremists of Muslims party started threatening him again. Once he was hit on the motorbike by some notorious activists of Muslim league party and sustained minor injuries. He lodged the complaint to police but no proper action was taken.

8. The applicant states that he again started receiving life threatening calls from the Muslim extremists. As stated by the applicant after Gujrat train tragedy in March 2002 his name was put in the hit list. He was severely beaten and mentally tortured by the extremists groups of Muslim league and threatened not to lodge the complaint with the police.

9. The applicant states that he and his family members were scared and tried to relocate in some other part of the country but thinking that nothing is beyond the reach of extremists they can do whatever they want sooner or later as it is very clear from the past incidents.

10. The applicant states that his business also gradually suffering losses due to consistent fear of life threats finally shutdown. Applicant stated to be threatened to be killed by the Muslim extremists group who were also responsible of killing 40 Hindu pilgrims in a temple after opened up an indiscriminate firing.

11. The applicant states that after discussing the whole matter with family members he along with his wife came to Australia on 07 Feb 2003 in order to save his life.

12. The applicant states that due to his fear of getting persecuted they have decided to seek the protection of this country and applying for a protection visa.

5. The application for a protection visa contained no further information and was not accompanied by any corroboration of the instructions given to the solicitor.

6. A delegate refused the application on 15 April 2003, drawing attention to the absence of corroborative material and also refusing to accept that the applicants could not settle somewhere within India safely.

7. On appeal to the Refugee Review Tribunal the applicants were again assisted by their migration agent and although the application said: "a detailed submission will be filed later", no submission was ever sent. One of the applicants attended a hearing before the Tribunal on 26 March 2004. The transcript of what happened is not in evidence before me but the Tribunal describes the hearing in its reasons and I have no reason to doubt that the applicant was not fully exposed to all the concerns of the Tribunal about his case.

8. In its reasons under the heading "findings and reasons", the Tribunal expressed some doubt about the credibility of the applicants but decided the case on the assumption that their claims were accepted "at face value". The Tribunal considered that, even on that basis, "I believe that he could avoid the possibility of continuing problems with his Muslim neighbours and thus any real chance of persecution by reasons of religion by relocating to another part of India".

9. The Tribunal noted that there was nothing in evidence suggesting that Hindus were generally at risk of persecution from Muslims or anyone else because of their religion, or that the Indian authorities would fail to protect Hindus from religious or other violence for reasons of religion or for any other Convention reason.

10. The Tribunal noted some foreign country information concerning India in this respect, and also noted that the applicant "himself stated during the hearing that he had been safe from harm at the hands of those who harassed him in the area where his shop was located when he returned to his local village where he was no longer the only Hindu." The Tribunal concluded "in these circumstances, I am satisfied that, if necessary, SZDOY could avoid problems in India by relocating to another part of the country".

11. The Tribunal also concluded that it would not be unreasonable to expect him to take this step if necessary, and pointed to rational reasons for forming that view.

12. On the material before me I can see no arguable error of law in the procedures or reasoning of the Tribunal, and certainly no jurisdictional error affecting its decision.

13. The application filed in this Court set out a list of eight grounds, all of them expressed in general and particularised language, and none of them capable of comprehension and application to the decision of the Tribunal in this case. There is no point in my attempting to speculate on what might or might not have been argued in their support. Moreover, no arguments were presented to me attempting to explain or elaborate the grounds.

14. The applicant at the first hearing date were directed to file an amended application with particulars of his grounds and written submissions and has not done so. Before me today, no attempt has been made to find a flaw in the Tribunal's procedures or reasoning.

15. Essentially two points were made to me. First, that given more time the applicants would receive, "papers" from India which would assist their case to be accepted as refugees. The second point was a plea to "just give us some more time as going back to India is a big problem."

16. To enable them to get the additional "papers", the applicants also sought an adjournment of today's hearing, which I declined to give. It is not relevant for this Court to consider fresh evidence concerning the applicant's claims, if that evidence had not been put to the Tribunal. Nor do I have power to send the matter back just so that the applicants could enjoy an opportunity to present further evidence the Tribunal. To obtain that second chance the applicant must show error in the Tribunal's present decision and has failed to do so. Neither of the points made by the applicant can, therefore, provide grounds for relief from the Court.

17. For the above reasons I dismiss the application.

RECORDED : NOT TRANSCRIBED

18. I shall order the applicant to pay the respondent's costs in the sum of $4000.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 15 December 2004
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