Abbas v Minister for Immigration and Multicultural Affairs

[2001] FCA 1113

FEDERAL COURT OF AUSTRALIA

Abbas v Minister for Immigration & Multicultural Affairs [2001]FCA 1113

GHULAN ABBAS v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W 105 OF 2001

HELY J
10 AUGUST 2001
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 105 OF 2001

BETWEEN:	GHULAN ABBAS APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	10 AUGUST 2001
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The application is dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 105 OF 2001

BETWEEN:	GHULAN ABBAS APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	HELY J
DATE:	10 AUGUST 2001
PLACE:	PERTH

REASONS FOR JUDGMENT

1. This is an application under Part 8 of the Migration Act 1958 (Cth) (“the Act”) for review of a decision of the Refugee Review Tribunal (“RRT”) given on 16 March 2001. By that decision the Tribunal affirmed a decision of the Minister’s delegate not to grant a protection visa.

2. The applicant arrived in Australia on 17 December 2000.  He claimed that he had a well-founded fear of persecution if returned to India by reason of a political opinion imputed to him by the authorities in that he is suspected by the authorities of involvement with the Mujaheddin.

3. The applicant was born and lived in Kargil, Kashmir until he left India.  He claims not to be a member of the Mujaheddin, but believes they are good people.  He gave an account to RRT of detention and mistreatment by Indian soldiers by reason of his suspected involvement with the Mujaheddin.  His cousin was killed, his brothers were taken by soldiers and have not been seen since.  The soldiers burned down houses, including his own house.

4. The applicant left Kargil.  With others he went to Lahore in Pakistan and thence to Australia via Indonesia.  The applicant claims that he will be killed by Indian forces if he returns.

5. RRT accepted that the applicant faces a real chance of persecution for a Convention reason should he return to the Kashmir area.  In RRT’s view, the real issue for its determination was whether the applicant could relocate to another area in India.  RRT accepted that if relocation is not a reasonable option in the particular circumstances of the case, it may be said that, in the relevant sense, the applicant’s fear of persecution in relation to India as whole is well-founded.

6. RRT came to the conclusion that it was reasonable for the applicant to relocate to another part of India for the following reasons:

   -the difficulties encountered by the applicant were localised in the regions of Kashmir and Jammu.  The country information was that there are virtually no reports of Kashmir-based militants operating outside Jammu and Kashmir.  Relocation is a feasible option for applicants concerned about living in those areas;

   -the applicant is young and resourceful, with a demonstrated ability to survive outside India.  He lived in Indonesia for a few months before arriving in Australia;

   -although the applicant cannot read or write the Hindi language, he speaks it, thus it is not unreasonable for him to relocate to another part of India where, for example, Hindi and not his native tongue is spoken.  The applicant speaks only Urdu and Kashmiri;

   -relocating to another part of India would not cause the applicant such hardship as to make it unreasonable for him to do so.

7. The applicant’s written submissions assert that relocation is not a reasonable option in the particular circumstances of the applicant’s case.  The submissions do not challenge RRT’s expression of the principles to be applied.  The submissions do not rise above a contention that RRT reached a wrong conclusion on the facts.  They do not expose any reviewable error. 

8. The submissions address the gravity of the situation in Kashmir, but this was accepted by RRT.  The submissions assert that the applicant’s inability to read and/or write Hindi make it unreasonable for him to locate to another part of India.  But this is a question of fact and degree for RRT to assess.  RRT took into account the language problem.  The conclusion which it reached was open to it.  There is no reviewable error.

9. The application is dismissed with costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:             15 August 2001

Counsel for the Applicant:	Mr J J Hockley
Counsel for the Respondent:	Mr R Hooker
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	10 August 2001
Date of Judgment:	10 August 2001