NAMZ v Minister for Immigration - [2003] FMCA 581

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAMZ v MINISTER FOR IMMIGRATION

[2003] FMCA 581

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in India – whether the RRT applied the correct test for the determination of refugee status – whether the decision of the RRT based on a finding of effective State protection – no reviewable error found.

Migration Act 1958 (Cth)

Singh v Minister for Immigration [2000] FCA 1014

Applicant:

NAMZ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ1069 of 2003

Delivered on:

10 December 2003

Delivered at:

Sydney

Hearing date:

10 December 2003

Judgment of:

Driver FM

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent:

Ms D Watson
Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1069 of 2003

NAMZ

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 1 March 2002 and handed down on 27 March 2002. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant is from Kerala State in India. He claimed a fear of persecution based upon his political activities drawn from his Muslim religion. The applicant claimed to be a member of the Islamic Seva Sangh (“the ISS”). The applicant claimed to have suffered serious harm as a result of his activities in the ISS. The ISS was a political party which sought to protect and improve the position of Muslims in India. There had been a history of violence relating to the ISS and its political opponents on the fringes of politics in India.
The applicant's claims were rejected effectively completely by the presiding member. On page 78 of the court book the presiding member said:
The applicant claims to have been a member of the ISS, though he has produced no evidence of his membership. When asked about the ISS, the applicant displayed some knowledge, for example the name of the leader of the Party, and the fact that the ISS was disbanded in late 1992 and replaced with the PDP. The knowledge displayed by the applicant was not deep; it could have been acquired with minimal research about Kerala's political history. However, when pressed for more intimate knowledge of events with which he claimed to have had personal experience, his knowledge of events was not accurate.
This finding draws upon a discussion of the applicant's claims and the hearing conducted before the RRT. The presiding member went on to discuss in more detail the problems he had with the applicant's claims. The presiding member rejected specific claims made by the applicant. On page 80 of the court book the presiding member stated:
In considering these claims, which are unsupported assertions, the Tribunal notes first that he claimed that all of these incidents took place because of his involvement in the ISS, an involvement which it has found did not exist.
The RRT also found that the applicant’s claim to have been accused of involvement in a murder was not made out. Against the background of these findings, the RRT is not satisfied that any of the other experiences he claimed to have had ever took place.
The findings by the RRT about the applicant's credibility amounted to a total rejection of the claims advanced by the applicant. The findings on credibility made by the RRT were, in my view, reasonably open to it based upon the material before it. In any event, the applicant does not challenge the decision of the RRT rejecting his claims of persecution based upon his political activity.
The applicant relies upon an amended application filed on 28 November 2003. In that application the applicant sets out the following grounds:
The Tribunal failed to apply the correct test for ascertaining whether the applicant was a refugee.
The following particulars are given:
At paragraph 3 (sic) of the Tribunal’s decision it is stated that the applicant would not be refused state protection instead of ascertaining whether the applicant “is unable or, owing to such fear, unwilling to avail himself of the protection of that country”.
Secondly, the application asserts that:
…the Tribunal came to a decision with out any direct evidence to support the conclusion that the applicant would not be refused state protection.
The applicant filed written submissions on 8 December, 2003. It appears that he may have had some legal assistance in putting together those submissions. In those submissions, the applicant refers to the Convention definition of a refugee and the function that the RRT is to perform in assessing refugee claims. He also discusses the effect of the privative clause. To that extent I have no difficulty with the applicant's submissions.
At paragraph 6 of his written submissions the applicant refers to the decision of the Federal Court in Singh v Minister for Immigration [2000] FCA 1014. The applicant states that:
[ That case] is authority for the proposition that the test of whether or not an applicant has a well-founded fear of persecution is a two-stage test.
There it was said that the applicant's fear of persecution must be investigated before the Tribunal considers whether it is reasonable for the applicant to relocate within the applicant's own country to escape that persecution.
The applicant further states in paragraph 7 of his written submissions that the second stage of the two stage test is to consider whether it is reasonable for the applicant to rely on the protection of the local police. In paragraph 8, the applicant asserts that the “third limb” of what he describes as the proviso referred to earlier in his submissions was not satisfied. The applicant also asserts that the RRT exceeded its jurisdiction in constructively failing to apply the proper law.
The applicant asserts in his written submissions that the RRT applied the wrong test in the third paragraph at page 17 of its reasons for decision (court book, page 81). I take this to be a correction of the apparently erroneous reference in paragraph 5 of the amended application. The applicant states that it is not the function of the RRT to determine whether the applicant would not be refused State protection by the authorities in Kerala if there were to be acts of harm, but to ascertain whether or not the applicant is unable or, owing to such fear, unwilling to avail himself of the protection of that country, those words being drawn from article 1A, sub-article 2 of the Refugees Convention.
It is clear that the presiding member was aware of and adopted the appropriate test for determining whether or not the applicant is a refugee. The presiding member sets out the correct process for assessing refugee claims on pages 2-4 of the reasons (court book, pages 66-68 ). On page 68 the presiding member states:
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality. Whenever the protection of the applicant's country is available, and there is no ground based on well-founded fear for refusing it, the person concerned is not in need of international protection and is not a refugee.
I have no difficulty with that statement of principle by the presiding member. I accept the authority of Singh in relation to the proposition that a decision maker under the Migration Act 1958 (Cth) Migration Act cannot simply consider the availability of State protection without considering whether an applicant has a well founded fear of persecution. The statement of principles set out by the presiding member is entirely consistent with that process.
In order to consider the applicant's claim of jurisdictional error it is necessary then to look at what the RRT did, having rejected the applicant's claims of persecution based on political activity. At page 81 of the court book the presiding member stated:
While the applicant's claims have been largely based upon his claimed membership of the ISS, a fact which he confirmed at the hearing, the Tribunal has considered whether the applicant would be at risk because of his Muslim religion. In this context, the Tribunal notes that the government of his home state is in the hands of a coalition which includes the Indian Union Muslim League. It notes further the independent evidence that the Congress Party, (the leader of the coalition government in Kerala) “has a history of support for religious minorities and has attempted to assuage religious minority fears about religious tension in the rest of the country.”
In these circumstances, the Tribunal is of the view that the applicant would not be refused state protection by the authorities in Kerala if there were to be acts of harm directed or threatened against the applicant for reasons of religion. Therefore, the Tribunal is not satisfied that the applicant would have a well‑founded fear of persecution in Kerala for reasons of religion in the reasonably foreseeable future.
The first point to note is that this finding by the RRT followed the rejection of the applicant's claims based upon the assessment by the RRT of their credibility. The applicant had made his claim for a protection visa on the basis of his asserted political activity. Those claims were rejected. The RRT clearly found that the applicant did not have a well founded fear of persecution for the reasons of political opinion. In those circumstances there was no need for the RRT to consider at all the question of whether effective State protection was available to the applicant in relation to the harm he alleged had happened to him.
Nevertheless, given that the applicant is a Muslim the RRT considered the possibility that the applicant might suffer some harm simply by reason of his religion. The applicant has not made such a claim but it was proper and reasonable for the RRT to go this further step. Given that the applicant had not made a claim of a well founded fear of persecution based simply on his religion, there was nothing before the RRT from the applicant for the RRT to consider.
The RRT was left to determine that issue by reference to the best evidence available which was the country information. The RRT concluded, based upon that country information, that the situation in Kerala indicated that Muslims would be protected by the State authorities. In the circumstances, the RRT found that the applicant would not have a well founded fear of persecution in Kerala simply by reason of his religion.
Viewed in this context, the RRT was not examining the question of availability of State protection without considering the question of whether the applicant had a well founded fear of persecution. In the absence of any relevant claims by the applicant on the issue, the RRT was determining whether the applicant had a well founded fear of persecution by reference to the available country information.
The applicant in paragraph 8(b) of his written submissions goes on to assert that the RRT failed to give proper and adequate reasons which it was required to do by the act. In my view, the RRT has clearly discharged its statutory obligation to give reasons for its decision. The applicant's assertion is simply an argument with the merits of the decision reached by the RRT.
In paragraph 9 of his written submissions, the applicant also asserts jurisdictional error but these assertions are not particularised. To the extent that I can draw anything from the assertions in paragraph 9 they appear to restate what is set out in the application and in paragraph 8(a) of the written submissions. Nothing else appears from the applicant's submissions which could support a finding of jurisdictional error. The applicant was unable to expand upon his submissions orally when I gave him the opportunity to do so. He simply told me that the decision made by the RRT was wrong.
I find that there is no jurisdictional error in the decision of the RRT. Accordingly, I will dismiss the application.
On the question of costs, the application having been dismissed, Ms Watson seeks an order for costs fixed in the sum of $4,500 on a party/party basis. The applicant tells me that he is impecunious. Impecuniosity is, however, not a reason for the Court to refrain from making a costs order. In this matter there was an application and an amended application and written submissions prepared by both parties. There have also been two hearings. The Minister has been put to additional cost because of the need for two hearings. However, the first hearing was adjourned because of the absence of an interpreter in the applicant's language. It does not appear to me that the absence of the interpreter was the fault of the applicant, or indeed of the Minister. It would, in my view, be unfair to impose a cost burden on the applicant by reason of the necessity to adjourn the hearing in those circumstances.
I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,500.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 18 December 2003