FEDERAL COURT OF AUSTRALIA

SZCIZ v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 746

SZCIZ AND SZCJA v Minister for Immigration and Multicultural and Indigenous Affairs

nsd 545 OF 2005

JACOBSON J

SYDNEY

8 JUNE 2005

THE COURT ORDERS THAT:

1. The appeal by dismissed; and
2. The appellants pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

Introduction

1                     This is an appeal from a decision of Federal Magistrate Driver given on 22 March 2005 dismissing an application for review from a decision of the Refugee Review Tribunal (“RRT”) handed down on 3 December 2003.  The RRT affirmed a decision of a delegate of the Minister not to grant the appellants protection visas. 

2                     The appellants are husband and wife from Gujarat State in India.  They arrived in Australia on 8 November 2002 and on 13 December 2002 they lodged an application for protection visas.  The husband claims to have a well-founded fear of persecution on the ground of his membership of a particular social group, namely, the claim that he is a low-caste Hindu.  The wife's claim is dependent on her husband and I will refer to the husband as the appellant.

3                     The appellant claims that he and his family are low-caste Hindus and that he is a farmer who worked on different farms but because of his caste on at least one occasion he and his father were discriminated against and forced to cease farming.  He claims that low-caste Hindu families are discriminated against in India and that although the Constitution of India provides rights for them, in practice those rights do not exist.  The appellant also claimed that although it is said that India is a democracy, in practice it is a theocratic state based on hard and fundamentalist Hindu principles. 

4                     The appellant claims to have formed a social committee aimed at upholding the rights of low-caste Hindus which received support and he also claims that he launched protest rallies against the inhumane treatment experienced by low-caste Hindus.  The committee did not last long because he and his colleagues were said to have been bashed and humiliated by upper caste Hindus. He claimed that he was "roped into" many false cases, confined without legal reason, persecuted many times and discriminated against on the basis of his race, caste and membership of a particular social group.  He claimed that his life was in danger and that he travelled to Australia to save himself, his dignity and his honour.

5                     In its reasons for decision, the RRT noted that on 9 September 2003 it sent a letter to both of the appellants advising them that it had considered all the material before it but that it was unable to make a favourable decision on that information alone and it invited the appellants to a hearing on 3 November 2003.  The letter advised that if the appellants did not attend the hearing and a postponement was not granted, the RRT may make a decision on their case without further notice.  The RRT observed that the letter was sent to the residential address provided by the appellants and a copy was sent to their adviser but no response was received. The letters were not returned unclaimed.

6                     On 30 October 2003, the RRT examined its files and the files of the Department for any more recent address.  The RRT also telephoned the appellants' adviser who stated that the appellants were aware of the hearing date but the adviser was unaware of their intentions as to whether they would attend.  The appellants did not attend the scheduled hearing.  In the circumstances the RRT proceeded to determine the application on the evidence available to it pursuant to section 426A of the Migration Act 1958 (Cth). 

7                     The RRT inferred from the application that the appellant was claiming to be a member of a low-caste family and that he had been persecuted and that he risked being killed because of this.  The RRT concluded that in the light of the independent evidence before it and the vague and contradictory claims advanced by the appellant it was not satisfied that the appellant had a well-founded fear of persecution under the Convention because of his membership of a low-caste or any other Convention related reason.  In particular the RRT noted that although the appellant's claims were not specific as to what caste he says he belongs to, the application and other materials submitted by the appellant suggested that he claims that he belongs to a caste of "untouchables" or Dalits.

8                     The RRT also noted, however, that other aspects of the appellants' claim were inconsistent with independent country information about the position of Dalits in India.  The RRT accepted independent country information to the effect that Dalits occupy the lowest levels of the Indian caste system and face systematic and severe discrimination.  However, the RRT found that the appellant did not fit the profile of those who belonged to the Dalit caste and in all the circumstances the RRT was not satisfied that the appellant was a member of the Dalit caste.

9                     The application for review in the Federal Magistrates Court was filed on 31 December 2003.  It identified in very general terms a number of grounds of review.  The appellant filed written submissions which were considered by the learned magistrate.  The grounds pleaded in the application for review were not supported by particulars.  The appellant's written submissions relied on a number of claims including a claim of bias.  In addition, the appellant sought to draw support from the decision of the High Court in Muin v Refugee Review Tribunal (2002) 198 ALR 601 (“Muin”). 

10                  The appellant did not file any evidence to bring the claim within the principles stated by the High Court in Muin and the learned magistrate correctly rejected that submission; see NADR v Minister for Immigration & Multicultural & Indigenous Affairs  (2002) 124 FCR 465. 

11                  The learned Federal Magistrate dealt comprehensively with all of the appellant's arguments but found that there was no jurisdictional error in the decision of the RRT.

12                  The notice of appeal in the present matter is in identical terms to the notice of appeal which I considered yesterday in the matter of SZBXZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 741 (“SZBXZ”).  It does not identify a coherent ground of appeal and fails for the reasons which I gave in SZBXZ. 

13                  The appellant filed written submissions in a document entitled "Written Argument by Applicant", filed 24 May 2005.  The document makes a number of sweeping assertions without any attempt to relate them to the facts or circumstances of the present matter.  To the extent that there is any reference to the decision of the RRT, the document attacks the merits of that decision but does not raise any proper claim of jurisdictional error.

14                  In dealing with the Federal Magistrate's decision, the written submission states that the magistrate "did not find error of law" and the judgment is "not acceptable to me".  As was stated in the Minister's written submissions, this makes it abundantly clear that although the appellants were dissatisfied with the outcome of their application for review in the Federal Magistrates Court, they are unable to articulate any legal error in respect of his Honour's judgment. 

15                  The appellant appeared before me this morning without legal representation. His wife was not present but he told me that he was authorised to speak on her behalf.  He did not add to his written submissions.  He asked for an adjournment for one or two months to go to India but I rejected his request for an adjournment because there was no reason put to me for any delay in dealing with the matter.  Nothing was put to me to suggest that any adjournment of the hearing would assist me in resolving this matter. 

16                  The failure of the appellants to attend the hearing before the RRT effectively disposed of the matter for the reasons stated yesterday in SZBXZ.  I have taken into account the fact that the appellant is not legally represented. However, there is no basis whatsoever for any attack on the decision of the Federal Magistrate nor can I see any jurisdictional error in the decision of the RRT. 

Orders

17                  Accordingly, the orders I will make this morning are that the appeal be dismissed and, in accordance with the ordinary practice, I will order that the appellant pay the Minister's costs of the appeal.

Associate:

Dated:              14 June 2005