BZAA of 2004 v Minister for Immigration
[2004] FMCA 667
•16 August 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BZAA of 2004 v MINISTER FOR IMMIGRATION | [2004] FMCA 667 |
| MIGRATION – Application for review of a decision of the Refugee Review Tribunal affirming a decision not to grant a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.411, 414, 415, 474, 475A, 476
| Applicant: | BZAA of 2004 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | BZ 184 of 2004 |
| Delivered on: | 16 August 2004 |
| Delivered at: | Brisbane |
| Hearing date: | 16 August 2004 |
| Judgment of: | Jarrett FM |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr Bickford |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application is dismissed.
The applicant pay the respondent's costs of and incidental to the application, including reserve costs, fixed in the sum of $6,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BZ 184 of 2004
| BZAA of 2004 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application appealing against the order and decision of the Refugee Review Tribunal given on 19 February 2004. The basis of the application is not clear and there is no express claim that it is an application pursuant to s.39B of the Judiciary Act1903. The decision is a privative clause decision[1] and therefore, I intend to treat the application as made pursuant to s.39B.
[1] see ss 411, 414, 415, 474, 475A and 476 of the Migration Act 1958
The applicant, who is a citizen of India, arrived in Australia on
7 February 2002. On 6 March 2002, he lodged an application for a protection (class XA) visa with the Department of Immigration, Multicultural and Indigenous Affairs under the Migration Act1958 ("the Act"). On 16 January 2003, a delegate of the Minister for Immigration, Multicultural and Indigenous Affairs refused to grant a protection visa to the applicant and on 3 February 2003 the applicant applied for a review of that decision by the Refugee Review Tribunal. The Tribunal handed down its decision on 12 March 2004 and dismissed the application for review.
The application filed by the applicant in this Court on 8 April 2004 does not set out any grounds upon which the application is based. Rather, the applicant says this:
Ground Of Appeal:
I, Born In The Year 1979 At Karim Nagar, State Of Andhra Pradesh, Completed Year 10 In 1995 And Joined Nsui (National Student Union Of India In Year 11th And 12th With Noble Junior College And Remained Member Until 1999 While Completing Graduation From Osmania University.
I, Left The Party In 1999 When I Completed The Studies, But The Then President Of Nsui Needed Me As I Was The Senior Worker Of Party Throughout Andhra Pradesh. On Several Occasions I Visited Deli With The Then President Of Nsui And Attended Assembly Session With President And Was Also Well Known In The State Of Andhra Pradesh
The Opposition Party Was Abvp Which Was Liked With Bjp Rullin Party Of India. The Opposition Party Workers Were Angry With Me As I Was Working For Nsui And Several Attacks Were Made On Me Pre-Planned By The Opposition Party Workers. As Everybody Knows That Bjp Is Strong Party And Abvp Is Criminal Party Doing Crime In Support With Bjp Due To Which Even Police Did Not Support Our Party Workers. On Several Occasions I Along With My Party Workers Arrested By The Police On False Charges.
One Occasion, I Was Working In The Party Office Arranging Meetings When A Group Came Into The Office And Bashed Me.
I Was Unable To Walk And Left Me In The Bush In Critical Condition. After That I Was Admitted To Hospital And Stayed There For Approximately 25 Days. On Another Occasion There Was A Rally For The Congress Party In Our Area. I Was Setting Up The Stage And Seating Arrangements When A Group Of 15-20 People Came And Attacked Tour Workers With Hockey Sticks, Bamboos And Knives. One Of The Attackers Has A Gun. Two Of The Members Were Shot Dead But I Was Able To Escape After Being Beaten. I Was Admitted To Hospital And I Was Injured With Knives. Even The Hospital Refused To Admit Me Because It Was A Police Case And Said That I Will Have To Wait Till The Arrival Of Police After That They Will Start My Treatment. After Using Heavy Sources I Received Treatment From The Hospital Staff.
The Complaint Was Lodged With The Police About This Attack And Even Pointed Out The Person Who Attacked On Our Workers But Police Did Not Take Any Action, After Heavy Pressure From Our Party The Police Arrested Three Of The Accuse, Who Belonged To Criminal Gang Abvp. But During The Proceedings With Court The Accused Were Released On Bail Without Taking My Evidence Or Statement.
On The Same Evening, They Attacked My House, Till The Police Arrived They Fled Awa. Even They Attacked The Police Officer Who Was Involved In Their Case On My Witnesses.
These Opposition/Criminal People Were Behind Me Just To Take Revenge That Why Should I Complaint Against Them. Me And My Family Was Very Much Upset And Was Changing Our Whereabouts From One Place To Another, They Were Behind Me. My Father Advise Me To Leave The Country And I Fly To Malaysia For 1 Month In May 2001 And Thought That Matter Will Be Resolved> But The Criminal People Kidnapped My Father And Under Heavy Pressure I Have To Come Back To India.
On The Second Hand My Party Refused To Support Me As I Left The Country Without Informing Them, After Which My Life Was Miserable, And With The Assistance Of My Friend I Took Business Visa Of Australia And Left India For Ever.
The People Of Vhp And Avbp Are Spread All Around The Country And Are Perusing Me And My Family Every Where. The Local Authorities Could Not Protect Me Because They Have Good Contact With The Present Ruling Party.
All This Is Explained Briefly In My Statement Submitted To Dimia With My Protection Visa Application And Same With Refugee Review Tribunal With My Review Application And Also Given Brief Explanation During My Personal Interview With RRT; Despite All Of This I Was Very Disappointed That The Protections Visa Application Was Refused.
This Appeal Is Made Only To Get Fair Justice In The Light Of Above Facts And My Protection Visa Application May Be Approved To Same My Life.
Despite directions being made in this court on 10 May 2004 that the applicant file a list of the grounds upon which he relies in this application, no grounds have been filed. Despite a direction that he file and serve an outline of submissions seven (7) working days before the hearing date, that is, before today, no outline of submissions has been filed.
The facts that I have just recited from the application were the facts that were before the delegate of the Minister and the Refugee Review Tribunal when the matter was before each of them. The factual claims made by the applicant were, in large measure, accepted by the Tribunal. Specifically, the Tribunal accepted that:
a)the applicant was a member of the National Student Union of India, a body affiliated with the Congress Party of India;
b)that over his student life, the applicant was engaged in political activity;
c)by reason of his involvement in politics, he was subjected to violence from members of opposing political parties;
d)the applicant suffered two serious incidents of violence and in respect of each incident required hospitalisation on each occasion;
e)that in the second of the episodes of violence, two friends of the applicant were killed;
f)the applicant witnessed the killings, reported the matter to police and was to be a witness in the prosecution of the three men who were charged with the killings;
g)the applicant and his family were pursued by the three men who were charged with killing his friends, and they have attempted to harm both the applicant and his family. The applicant, as a result, fled India to escape;
h)the local police are unable to properly protect the applicant because, inter alia, there is a severe problem with police corruption within India;
i)since the applicant has departed India, no harm has come to his family, who have now moved back to their city of origin;
j)notwithstanding those matters, the applicant's fear of harm from the three men charged with his friends' murder remains and that that fear is well founded.
The Tribunal, however, determined that the applicant's fear of harm was not for a Convention reason. It determined that, rather than being for a Convention reason, it stemmed from the desire of the three men charged with his friends' murder to exact revenge on the applicant, or perhaps prevent him from giving evidence at any prosecution of them. The Refugee Review Tribunal put the matter in this way:
The Tribunal considers that any harm that could come to the applicant would be from the three individuals involved in the death of his two co-workers discussed above rather than from anyone associated with opposing political groups. Their motivation would be solely to prevent the applicant from giving evidence in a trial rather than to prevent the applicant from undertaking any further political activities.
Whilst the initial genesis of the events that have befallen the applicant were his political activities, there is no evidence to suggest that any political opponent or group has any interest in harming the applicant now. It appears to the Tribunal that in both incidents that affected the applicant he was not a particular target of the assailants but became caught up in the incidents merely because he was there.
Further, the Tribunal determined that the applicant was not at risk of persecution for a Convention reason if he returned to India because of the operation of the principle in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437. That principle was recently explained by the Full Court of the Federal Court of Australia in SKFB v Minister for Immigration and Multicultural Affairs (2004) FCAFC 142 at paragraph 13 in the following words:
We do not believe that the relocation principle requires a person to modify their beliefs or opinions or to hide the fact that they are of a certain racial or national origin or member of a particular social group. The question is whether there is a real risk that the applicant for asylum would be persecuted for a Convention reason if required to return to his country of nationality. The question is concerned principally with the protection which can be given to the putative refugee by his own country: Minister for Immigration and Multicultural Affairs and Respondents v S152 of 2003 (2004) HCA 18.
The application of the relocation principle inquires whether the appellant is able to obtain that protection. That is to say, if the principle is applied, that only means that the putative refugee is not at risk of persecution in his country of nationality.
The Tribunal determined that the applicant would be able to return to India and reside in an area outside of his local area of Karim Nagar. If he did so, he would not be at risk of persecution for a Convention reason.
It is difficult to understand the applicant's case because of the lack of grounds for his appeal. The matters I have set out from his application above, however, were all accepted by the Tribunal. In those circumstances, it is difficult to see that the Tribunal has made any error, let alone a jurisdictional error, in this matter.
There is no error or misapplication of principle pointed to by the applicant, nor does there appear to be any error or misapplication of principle referred to in the Tribunal's reasons.
In those circumstances, I am satisfied that the application before me is nothing more than an impermissible attempt to review the merits of the decision of the Refugee Review Tribunal. In the circumstances, the application will be dismissed.
There will also be an order that the applicant pay the respondent's costs of and incidental to the application, including reserve costs if any, fixed in the sum of $6,000.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Associate: Susan Haysom
Date: 1 October 2004
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