NAIJ v Minister for Immigration
[2003] FMCA 349
•6 August 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAIJ v MINISTER FOR IMMIGRATION | [2003] FMCA 349 |
| MIGRATION – Review of decision of RRT – where applicant was found to have been the victim of a private feud not connected with religion – where Tribunal had evidence upon which such finding could be made – where state protection was found to have existed. |
Ram v MIEA (1995) 57 FCR 565
Applicant A v MIEA (1997) 190 CLR 225
Abebe v Commonwealth (1999) 197 CLR 510
| Applicant: | NAIJ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 341 of 2003 |
| Delivered on: | 6 August 2003 |
| Delivered at: | Sydney |
| Hearing date: | 6 August 2003 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | Applicant in person |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay respondent’s costs in the sum of $4,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 341 of 2003
| NAIJ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of India. He arrived in Australia on 20 January 2002. He held a business visa. On 15 February 2002 he lodged an application for a protection (class XA) visa with the Department of Immigration Multicultural and Indigenous Affairs. On 28 February 2002 a delegate of the Minister refused to grant him a protection visa and on 21 March 2002 the applicant applied for review of that decision.
The Refugee Review Tribunal conducted a hearing into the matter on 20 November 2002 at which the applicant appeared. There is no indication that the applicant was represented at that hearing. The Tribunal made its decision on 6 December 2002 and handed it down on 9 January 2003. The Tribunal affirmed the original decision of the delegate.
The applicant's claim to have a well founded fear of persecution for the convention reason of religion arises out of a business association which he had in his home state of Kerala with a Mr Nair. The applicant and his brother-in-law, who are both Christians belonging to a charismatic branch of that religion, went into a business partnership with Mr Nair in June 1995. The applicant told the Tribunal that in July 1999 Mr Nair started another company, similar to the joint partnership business, which caused considerable harm to it. The applicant tried to negotiate the matter but Mr Nair used violent and abusive language against him. The applicant stated that Mr Nair was a member of the RSS and had many contacts among their members. The applicant claimed that Mr Nair rounded up some RSS thugs who fire-bombed the applicant's house. The applicant and his brother-in-law escaped and ran to the nearest church where the priest helped them to escape to another town. The applicant and his brother-in-law then spent the rest of the time between then and when they both left India (the brother-in-law obtaining residence in the United States) hiding out with the church members and priests in various parts of India. Eventually, the applicant obtained through an agent a business visa for Australia and left India to seek asylum here.
The applicant told the Tribunal that the difficulties which he and his brother in law were having with Mr Nair had been the subject of a complaint by him to the local police. He stated that the police accepted this complaint and cautioned Mr Nair. Mr Nair did not apparently take any notice of the police caution and proceeded against the applicant and his brother in law in the manner described.
The Tribunal accepted that the applicant was a Christian and that he had worked with various Christian Ministries assisting the parish priest. The Tribunal accepted that Mr Nair is a Hindu and a member of RSS which it describes as "an organisation that espouses a return to Hindu values and cultural norms". At [CB 81] the Tribunal states:
“The Tribunal notes that simply because an antagonist is of one faith, and the victim another, it does not mean that the antagonist is attacking the other for reason of his religion.”
The Tribunal does not find it to be so in this case, although it acknowledges that once relations have been soured between two parties, a range of differences (including religion) may be alluded to in an abusive way. However it is still an interpersonal dispute.
The Tribunal found that the applicant did not hesitate to request the police to speak to Mr Nair at some time in 1999 and the police did so, according to the applicant's evidence. The fact that Mr Nair did not change his behaviour does not indicate that the police did not carry out their duties impartially. The fact that the applicant was willing to use the police on that occasion, but not willing to use them when Mr Nair threatened his dwelling with a fire bomb is incomprehensible. The Tribunal found the applicant, despite ample opportunity, could not explain why he thought that the police would not assist him. Indeed, it appears that the police did respond to the matter when called by the landlord of the dwelling, but the applicant did not stand around to find out what happened.
At [CB 82] the Tribunal says:
“On all the evidence before it, the Tribunal is satisfied that the applicant is involved, or has been involved, in a personal dispute and there is no converging nexus. The applicant is not being targeted for reasons of his religion, even though his protagonist - his ex-business partner - is of another faith. The Tribunal is not satisfied on the evidence that the RSS per se, as a well established and widespread organisation with close links to the major party in the Federal coalition government, is involved in the dispute with the applicant, even though the individual protagonist is an RSS member. There is nothing before the Tribunal that indicates that the applicant's home state of Kerala would not be willing or able to offer protection to the applicant if he is at risk of harm because of his private quarrel, or that it would not be willing or able to offer protection even if the RSS was involved in some way. In short the Tribunal is not satisfied on the evidence before it that the applicant has a well founded fear of persecution for a convention reason. He is not a refugee.”
The applicant's application to this Court which was made on 30 January 2003 claims:
“The decision made by the RRT be set aside in lieu thereof it be ordered that the decision of the Refugee Review Tribunal be set aside and the matter be remitted to the Tribunal to be determined according to law.”
In his grounds of application he says:
“ [I am] a citizen of India, arrived in Australia on 20 January 2002 at Sydney Airport. On 15 February 2002 I lodged an Application for protection visa (Class XA) with the Department. The Department refused my application of the protection visa on 28 February 2002. I applied for a review of this decision with RRT on 21 March on 2002. The RRT made a decision on 6 December 2002 itself. I received a letter from RRT on 9 January 2003. It says that the Tribunal affirmed the decision not to grant the protection visa.”
I have not been able to find an affidavit from the applicant or any amplification of that application notwithstanding that the usual orders to file and serve an amended application and any affidavit material before 27 March 2003 were made.
The Tribunal's decision in this case was made upon a question of fact. That question was whether or not the persecution which the applicant suffered, being the fire bomb incident that the Tribunal had accepted had occurred, was an incident motivated by the religion of the applicant or for personal reasons. The Tribunal came to the finding that it had been motivated by personal reasons being the business dispute between the applicant and Mr Nair. The motivation of the persecutor is an important matter for consideration. See Ram v MIEA (1995) 57 FCR 565 at 568 per Burchett J. His Honour's views in that case were supported by the High Court in Applicant A v MIEA (1997) 190 CLR 225 at 240-242 per Dawson J and at 284 per Gummow J. This question of fact is one that is particularly within the realm of the Tribunal and is not the subject of review under s 39B: Abebe v Commonwealth (1999) 197 CLR 510. There is no error of law in making a wrong finding of fact.
The Tribunal also considered the question of state protection. It had before it evidence provided by the applicant of his having reported the dispute between himself and Mr Nair to the police and that the police did something about it even though Mr Nair did not take much notice of what they did.
Another Tribunal may not have felt that it was incomprehensible that the applicant did not hang around after his house had been fire-bombed but this is a view which the Tribunal was entitled to come to and the fact that others may not have does not provide grounds for review.
The Tribunal also utilised country information which was discussed with the applicant concerning the state of law and order in the state of Kerala and therefore there was an evidential base upon which it came to its conclusion concerning the availability of state protection.
The circumstances, and without hearing from the applicant any more than a request for me to reconsider the Tribunal's decision upon its merits, I am unable to grant review. I must dismiss this application which I do. I order that the applicant pay the respondent's costs which I assess in the sum of $4,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM
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