FEDERAL COURT OF AUSTRALIA

SZOJT v Minister for Immigration and Citizenship [2010] FCA 1205

THE COURT ORDERS THAT:

The appeal be dismissed with costs.

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

1                     This is an appeal against the decision of Driver FM delivered on 30 July 2010 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 15 April 2010. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant.

BACKGROUND

2                     The appellant is a citizen of India who arrived in Australia on 15 May 2008. On 4 November 2009 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 1 February 2010. On 22 February 2010 the appellant applied to the Tribunal for a review of that decision.

3                     In his application for a protection visa, the appellant claimed that he belonged to a low caste Hindu called “Showders”. He claimed that he was discriminated against by the teachers and other students at school and that his father could not get a job and suffered at the hands of the upper class.

REFUGEE REVIEW TRIBUNAL

4                     The Tribunal invited the appellant to appear before it to give evidence and present arguments by letter dated 12 March 2010. As the appellant did not appear at the scheduled hearing, the Tribunal elected, pursuant to s 426A of the Migration Act 1958 (Cth) (“the Act”), to proceed to make a decision without taking any further action to allow the appellant to appear before it.

5                     On the basis of the independent information, the Tribunal accepted that discrimination occurs against low caste Hindus in India. However, having not had the opportunity to explore with the appellant his claims at a hearing, the Tribunal was not satisfied that he was in fact a lower caste Hindu, and was thus unable to find that he suffered discrimination and ill treatment and would continue to suffer such discrimination and ill treatment if he returned to India.

6                     The Tribunal therefore found that the appellant did not satisfy the criterion for a protection visa, and affirmed the decision of the delegate.

FEDERAL MAGISTRATES COURT

7                     On 4 May 2010 the appellant filed an application for judicial review of the Tribunal’s decision. In that application the appellant essentially contended that the Tribunal erred in its application of s 91R of the Act; failed to consider the evidence before it; and denied the appellant natural justice. The appellant also filed an amended application on 25 June 2010 which substantively repeated his claims for a protection visa.

8                     The Federal Magistrate was satisfied that the Tribunal’s decision was free from jurisdictional error. His Honour found, inter alia, that there was no breach of the procedural fairness provisions of the Act, namely ss 424A, 425, 425A and 426A. In particular, his Honour noted that the Tribunal invited the appellant to appear before it pursuant to s 425(1) of the Act by letter dated 12 March 2010. That letter gave the applicant notice of the day, time and place at which he was scheduled to appear, and was sent on the same day that it was dated by registered post to the last address for service provided by the appellant. Further, it gave more than the prescribed 14 days notice and contained a statement to the effect of s 426A of the Act. His Honour stated that the Tribunal’s rejection of the application was the inevitable consequence of the appellant’s non-attendance at the hearing (see NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5]), and that its decision to do so was without error.

9                     Having found that the Tribunal decision was not affected by jurisdictional error, his Honour dismissed the application for review.

APPEAL TO THIS COURT

10                  By Notice of Appeal filed on 16 August 2010, the appellant raised three grounds of appeal against the decision of Driver FM. The grounds of appeal are a combination of grounds and submissions in support of those grounds. They are as follows:

1. That the Learned Federal Magistrate court and the respondents below failed to go in to the question of Hindu Caste system. The applicant is a Shudras class, it means untouchable, as such is outside the caste system our traditional occupations include leather working, manual scavenging, sweeping, cremation work, removing the dead animals carcasses and agricultural labours on the others farms. It is believed that our groups are impure and are untouchables. The above has led to many farms (sic) of discriminations against us, as we have restrictions to join other professions. The other professional are to be reserved for the other classless, ritually polluting and have been barred access to many public resources. To date untouchables are twice as likely as other caste tp (sic) work poorly paid wages labours. Most of our class peoples are jobless, and even if they get the job they are not paid specially on the farms, which belongs to the Hindus of the upper class. WE are socially and economically out casted. The learned Court and the respondents failed to take all these factors in to account, this is an jurisdictional error on the part of the respondents. They have as failed to determine the actual harm to which the appellant is faced with, the appellant belongs to the LOW CASTE HINDU, THE APPLICANT FORMED a welfare organization to fight these evils, but the applicant/appellant was mercilessly beaten by the Hindus of the upper class. I along with my friends tried to help those who are the most disadvantaged class in India. I was bashed by the peoples of the upper class, I was detained by them, there is no law to protect the peoples like us in India, although there are some so-called laws of discrimination, but the ground reality is quite different from the so-called law makers. They were bashed and confined. The applicant and his close relatives were made to under go lot of persecutions and the harms caused to them, the appellant had to undergo untold miseries by the hands of the authorities in the country of origin by these Hindus of high political profiles. There occurs a legal and jurisdictional error committed by the respondent. These acts of atrocities happened with almost every low caste Hindu, and many of my friends are the victim by the hands of the upper class Hindus.

2. That the Appellants submits that this fact can be verified from the US country Information, and from other international media, and other sources. There is a great discrimination being done to the peoples like the appellant by the ruling parties, all the major so-called political parties are badly influents (sic) by the upper class Hindus. Although the constitution looks very democratic, but who rules the country, all these peoples are from higher class of Hindus. The Indian history is clear on the hierocracy that they appoint one person from some minority group with no powers to support himself, they make an examples of that. The upper class Hindus have roped the applicant and his friends in different cases, but there is no justice for lower class they are deemed to be untouchables. This issue was not dealt by the respondents or by the lower court. All the country information’s are well available with them but why they are not followed, this a question of law, which this honourable courts if thinks fit may address in the circumstances of the cases, the applicant requests that these issue may kindly be addressed. The laws are not taken in to consideration by not taking in to the situation of the applicant as required under the laws laid down by the UNHCR.

3. That the Respondents did not applied the proper law and procedure, this has resulted in the error of the law. The applicant/appellant has fulfilled all four key elements of being a refugee, as the applicant/apapellant has submitted in his statement of claim. (Errors in original)

11                  In summary, these grounds allege that the Federal Magistrate should have found that: the Tribunal failed to address the question of the Hindu Caste System; the Tribunal failed to consider the independent country information; and the Tribunal failed to apply the proper law and procedure.

12                  In my view these grounds of appeal cannot succeed.

13                  In relation to the first ground of appeal, it is clear from the record of decision of the Tribunal that the Tribunal had invited the appellant to appear before it but that the appellant had not attended the hearing. No reason was given by the appellant for his failure to attend. Pursuant to s 426A of the Act the Tribunal made its decision on the review without taking any further action to enable the appellant to appear before it. In that decision, it is clear that the Tribunal did consider the claim of the appellant that he was from a low caste in India on the basis of the material which was before it. The Tribunal also considered in detail independent country information concerning the castes in Indian society, and discrimination against low caste members. However in the absence of further information from the appellant at the hearing, the Tribunal concluded that there was insufficient information before it to find that the appellant was, in fact, a lower caste Hindu as he claimed, or that he had been subjected to the discrimination he alleged in his visa application. Accordingly, the Tribunal was unable to find that he would face persecution by people of the higher class Hindu if he returned to India. These findings were open to the Tribunal in light of the absence of evidence before it supporting the appellant’s claims.

14                  In substance, the appellant in his first ground of appeal seeks a merits review of the decision of the Tribunal. This is not an option open to this Court.

15                  The second ground of appeal is clearly linked with the first ground. To the extent that the appellant claims, however, that the Tribunal did not consider independent country information supporting his allegations that low caste Indians are the subject of discrimination in India, this is plainly not the case. Indeed the Tribunal devotes several pages of its decision to replicating material from numerous sources on the plight of low caste Hindus. Driver FM found that the appellant did not submit any country information to the Tribunal, and did not particularise any country information that was before the Tribunal which the Tribunal failed to consider (SZOJT v Minister for Immigration [2010] FMCA 572 at [33]). In my view the second ground of appeal is not substantiated.

16                  In relation to the third ground of appeal, I am not persuaded that the Tribunal’s decision exhibits errors in the application of proper law and procedure as claimed by the appellant. The Tribunal made its decision on the basis of the material before it. It is unfortunate that the Tribunal did not have the benefit of further information provided by the appellant. However, it appears that the appellant, despite being notified by the Tribunal of the date and time of the hearing, did not attend, with no explanation being provided to the Tribunal in respect of that non-attendance. As I have already observed, the subsequent decision of the Tribunal on the basis of the material before it was open to the Tribunal in accordance with s 426A of the Act.

17                  In Court this morning the appellant, in summary, repeated statements included in the notice of appeal. The appellant submitted that he had put before the Tribunal all information that he had, but in my view this is not true. The appellant could for example have appeared in person before the Tribunal and answered any questions it had. He did not, and the Tribunal was entitled to make a decision on the basis of the material before it.

18                  The appeal should be dismissed with costs.

Associate:

Dated:         4 November 2010