SZBXZ v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT Introduction 1 This is an appeal from a decision of Federal Magistrate Driver given on 21 March 2005 dismissing an application for review of a decision of the Refugee Review Tribunal ("the RRT") handed down on 23 October 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicants' protection visas. 2 The appellants are husband and wife from Gujarat state in India. They arrived in Australia on 26 October 2002 and on 29 November 2002 they lodged an application for protection visas. The husband claims a well-founded fear of persecution on the basis of his religion, which is Hindu, and his political opinion. The wife's claim is dependent on her husband's, and I will refer to him as the appellant. 3 The appellant claims that he lived peacefully with people of other religions in his village. In December 2000 he was elected secretary of an organisation called the Brotherhood of Humanity which attempted to heal rifts between Muslims and Hindus in Gujarat and represent the village in discussions with the government and politically influential organisations. 4 After the World Trade Centre attack in September 2001, the organisation wanted to pass a resolution condemning the act of the Muslim extremists, which caused dissension within the group and the Muslim members left the organisation. These Muslims planned an attack on the organisation, and their president is said to have been assassinated. This provoked Hindus, and clashes resulted. Supporters of the organisation were said to have been attacked and some killed. The appellant claims that his property was burnt and that he was targeted in particular because of the position he held in the organisation as secretary. 5 In its reasons for decision, the RRT notes that on 11 August 2002 it sent a letter to the appellant advising that it had considered all the material before it but it was unable to make a favourable decision on that information alone, and it invited the appellants to a hearing on 9 September 2003. 6 On 26 August 2003 the RRT received a facsimile from both of the appellants by their authorised representative advising that the appellants did not wish to attend a hearing and that they consented to the RRT proceeding to make a decision on the review without taking any further action to allow or enable them to appear before it. 7 The RRT proceeded to determine the application on the evidence available to it. The RRT observed that the appellant made a number of assertions about clashes in his village, that a number of villagers were killed and his property destroyed, but provided little detail and made no reference to when the violence was said to have occurred. The RRT noted that in early 2002 communal violence sparked by clashes between Hindus and Muslims overwhelmed Gujarat. The RRT found that it was more likely that the violence in the appellant's district was part of broader sectarian clashes rather than a localised dispute. 8 The RRT considered that in light of these findings, the main question unanswered in respect of the appellant's claim was a matter of state protection. The RRT noted that Hindu is the majority religion in Gujarat and in India generally, and that independent country information indicated that protection of Gujarati citizens was partisan. The forces of the state were ranged against Muslims, who suffered grievously. The RRT concluded that the appellant, as a Hindu, would have enjoyed the full protection of the state, although this did not preclude him being injured or his property destroyed by a random event. The RRT noted that recent elections in Gujarat have returned the government, so it would seem that Hindu interests would continue to be protected. 9 In the circumstances, the RRT was not satisfied that the appellant had a well-founded fear of persecution within the meaning of the Convention. 10 The learned Federal Magistrate observed that the appellant's amended application which he reproduced in full at [2] was difficult to understand. He noted at [3] that as he understood it, the appellant asserted that the RRT failed to take into account a relevant consideration because the RRT failed to consider the claims of both of the appellants as members of a particular social group. 11 The Federal Magistrate also noted that the amended application seemed to assert that there was no rational or logical foundation for the views formed by the presiding member of the RRT, but the learned Magistrate rejected this allegation, finding it to be clearly wrong. He observed at [3] that the decision and reasons of the RRT plainly provide a rational and logical foundation for the decision made. 12 The learned Federal Magistrate observed that the appellants' claim could be characterised as that of religious or political persecution or membership of a particular social group but that, at [4]:- "however one might characterise that claim, it was considered by the presiding member. The first applicant confirmed to me that the presiding member's description of this claim was an accurate statement of the claim he had made. The presiding member did not specifically characterise the claim as a claim of a fear of persecution by reason of religion or political association or membership of a particular social group. The presiding member appears to have proceeded on the basis that, however one might characterise the claim, the harm that the applicants feared stemmed not from the first applicant's activities in his local village but to general communal violence in Gujurat in the early part of 2002. The presiding member found that the applicants as Hindus would find effective State protection in Gujurat from that communal violence. I find that the applicants' claims of a well‑founded fear of persecution were considered by the RRT. There was no failure to take into account a relevant consideration." 13 The Magistrate concluded that the RRTs findings in respect of state protection were clearly available to it and there was no jurisdictional error in the decision. 14 None of the grounds of appeal in the notice of appeal discloses any appellable error. The grounds are expressed in general terms without any particulars. 15 At a directions hearing on 28 April 2005 I directed that the appellant file any amended notice of appeal setting out proper grounds of appeal by 5 May 2005. No such document was filed nor were any written submissions filed notwithstanding my direction to the appellant to do so. 16 The appellant appeared before me in person this morning. He addressed me very briefly saying only that the decision of the RRT was not right and that it did not look at the circumstances existing in Gujarat State. This is plainly incorrect as the background of the matter set out above reveals. Since the appellant is unrepresented I will for completeness deal with each of the grounds for appeal set out in [2] - [8] of the notice of appeal. 17 Paragraph 2 of the notice of appeal merely asserts that the Federal Magistrate failed to find error of law, jurisdictional error, procedural fairness and relief under section 39B of the Judiciary Act 1903 (Cth). No particulars are given and there is nothing to indicate any possible basis for this assertion. 18 Paragraph 3 states that the grounds of relief are "very much similar" to the decision of the High Court in Muin v Refugee Review Tribunal (2002) 190 ALR 601. No such case was argued before the Federal Magistrate. There is not the faintest suggestion of anything to bring the proceeding within the principles stated in that decision; see NADR v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 465. 19 Paragraph 4 of the notice of appeal asserts that the Federal Magistrate erred in considering "the real state of affairs and my persecution" in India. This is a challenge to the merits of the RRT decision. It is not a ground of appeal. 20 Paragraph 5 asserts that s 474 of the Migration Act 1958 (Cth) is ineffective "as per the recent two decisions of the High Court". The decisions are not stated in this paragraph although they do seem to be referred to later in the notice of appeal. There is nothing to show how any of the decisions has application to the present matter. 21 Paragraph 6 asserts that the appellant will face persecution if he returns to India. This is another challenge to the merits of the RRT decision. 22 Paragraph 7 merely states the "recent High Court judgment in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 1" and [8] states "the recent Federal Court judgment in SGDB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 74". The last mentioned decision is a judgment of Mansfield J. There is no suggestion in the notice of appeal that either of the cases which are mentioned has any relevance to the present matter. 23 I said earlier that the appellant appeared before me in person without legal representation. He told me that he was authorised to speak on behalf of his wife. She did not appear at this morning's hearing. I have taken into account the fact that the appellant is not legally represented. However, the failure of the husband and wife to take up the RRTs invitation to attend the hearing in September 2003 effectively disposed of the matter. 24 A number of Full Courts have dealt with cases where an appellant has failed to attend the hearing before the RRT. See, for example, Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 (Black CJ, Sundberg and Bennett JJ); see also NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 (Beaumont, Merkel and Hely JJ). 25 The present case is not one in which the RRT said it was unable to reach a state of satisfaction by reason of the appellant's failure to attend the hearing. Nevertheless, that must have been a consequence of the letter of 11 August 2003 to which I referred above. 26 Since the letter said that the RRT was unable to make a favourable decision on the material before it, it must have followed that the appellants failure to attend the hearing left the RRT in the position that it could not attain the necessary state of satisfaction. It was therefore bound to affirm the delegate's decision. There was nothing arbitrary or capricious in the approach to the matter taken by the RRT. The consequence therefore is that the appeal must be dismissed with costs.