Applicant A174 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 716

FEDERAL COURT OF AUSTRALIA

Applicant A174 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 716

APPLICANT A174 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

S 742 of 2003

SELWAY J
16 APRIL 2004
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 742 OF 2003

BETWEEN:	APPLICANT A174 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SELWAY J
DATE OF ORDER:	16 APRIL 2004
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.          The application is dismissed.

2.          The applicant to pay the costs of the first respondent.

3.          No order in relation to the costs of the second and third respondents.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 742 OF 2003

BETWEEN:	APPLICANT A174 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SELWAY J
DATE:	16 APRIL 2004
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. In this matter, the applicant seeks prohibition, certiorari, mandamus and/or injunctions in relation to a decision of the Refugee Review Tribunal (‘The Tribunal’) made on 14 February 2003, which affirmed the previous decision not to grant the applicant a protection visa.  The parties are agreed that in order to succeed the applicant must show that there was some jurisdictional error in the process, reasons or decision of the Tribunal.

2. The applicant is an Indian citizen of Tamil ethnicity.  He sought a protection visa on the basis that he had a well‑founded fear of persecution on the ground of his ethnicity.  The details of the claim are explained in the reasons of the Tribunal as follows:

   ‘The Applicant claims that he is a Tamil holding Indian citizenship who was born in Bangalore.  He claims that during his childhood as a Tamil he encountered discrimination from native Kannadigas and the police did not support Tamils.  He claims he faced problems at school as a result of racial discrimination towards Tamil students.  He claims that he went without proper education as a result.  He speaks 6 languages and reached year 12.  He is a Hindu as are the majority of the 1 billion people in India.  He claims he faced discrimination in his career and he worked for 4 companies.  He worked as an executive in the marketing department of his last company for 4 years and appears to have risen from the position of office assistant which was his occupation in his first job in 1988.

   The Applicant’s oral evidence to the Tribunal was given on Friday, 14 February 2003.  The Applicant gave evidence consistent with his above mentioned claims.  He said he will have difficulty upon return to India because he has no proper qualifications so he will have difficulty getting a job.  He said he is 33 and he is still not settled.  The Applicant said at hearing that he will have problems finding employment as local employers give preference to local people in jobs.  He said as a Tamil working with native people who are locals he will encounter hardship and he will not get a proper job.

   The Applicant said that if he moves to another state he will not be given an opportunity to grow because he does not have the language skills.  He said there are political problems in India and the country is always fighting about language and other things.  The Applicant said local politics causes problems for Tamil groups and will [sic] politics will make problems for him.  The Applicant said police discriminate against Tamils.  The Applicant claims he, as a Tamil, faced difficulties after the abduction of the Indian film star Raj Kumar as authorities searched trains and crossing points at this time.

   The Applicant said at hearing that he will have more opportunity in Australia.  He said his brother in India who he mentioned in his application to DIMIA has a BA from Bangalore and his sister has a undergraduate science qualification from college.  Both siblings work in private companies.  In Australia the Applicant works in a car wash.’

   In relation to these claims, the Tribunal made the following comments:

   ‘I accept that Tamils in India may face some discrimination.  The Tribunal has perused various reports including India Country Reports on Human Rights Practices – 2001 released by the Bureau of Democracy, Human Rights, and Labor March 2, 2002.  This Report in Section 5 discusses Discrimination Based on Race, Sex, Religion, Disability, Language, or Social status.  I note that there is no specific reference in the section covering racial discrimination towards Tamils.  Further Tamils have political control over some areas of India and do not appear to be a group who face serious discrimination.  Tamils from Sir Lanka are mentioned in the Report as a group who do face particular difficulty.

   Acts of regular but petty discrimination are undesirable and annoying but do not necessarily amount to the denial of human dignity in the sense of the refugee Convention.  The standard of a sustained or systemic denial of core human rights is simply not met by the allegations made by the Applicant of discrimination.

   Overall, the level of discrimination experienced by Indian Tamils, assessed cumulatively, falls well short of the persecution standard, namely “some serious punishment or penalty or some significant detriment or disadvantage”, selective harassment or serious violations of human rights and measures “in disregard” of human dignity.  The discrimination, although abhorrent, definitely does not rise to the level of persecution.  Low level discrimination experienced by the Applicant will have a minimal impact.  He may have difficulty finding the job he wants as he is unqualified but he has found a job without difficulty in the past.  He may encounter general problems because of politics but not so serious as to amount to persecution.  Low level racism or other discrimination may well continue to exist, however, this falls short of what is required to constitute “persecution” for the purposes of the Convention.

   CONCLUSION

   Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.  Therefore the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.’

3. The applicant says that the Tribunal has failed properly to understand the meaning of ‘serious harm’ as defined in s 91R(2) of the Migration Act 1958 (Cth). The short answer to this is that the Tribunal expressly referred to that subsection in its reasons:

   ‘Second, an applicant must fear persecution.  Under s.91R(1) of the Act persecution must involve “serious harm” to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)).  The expression “serious harm” includes, for example, a threat to life or liberty, significant physical harassment or ill-treatment, or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant’s capacity to subsist:  s.91R(2) of the Act.’

4. There is no reason, from its conclusions, to think that the Tribunal has misunderstood the meaning or effect of 91R(2) of the Act.  No jurisdictional error is shown.

5. The application is dismissed.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.

Associate:

Dated:             4 June 2004

Counsel for the Applicant:	M Clisby
Solicitor for the Applicant:	M Clisby
Counsel for the Respondent:	M Roder
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	16 April 2004
Date of Judgment:	16 April 2004