NASZ v Minister for Immigration
[2005] FMCA 48
•21 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NASZ v MINISTER FOR IMMIGRATION | [2005] FMCA 48 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political and religious persecution in India – no reviewable error established – application dismissed. |
Migration Act 1958 (Cth), s.36
Abebe v Commonwealth [1999] HCA 14; 197 CLR 510
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Randhawa v Minister for Immigration (1994) 52 FCR 437
| Applicant: | NASZ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1555 of 2003 |
| Delivered on: | 21 January 2005 |
| Delivered at: | Sydney |
| Hearing date: | 21 January 2005 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Mr C Mantziaris |
| Solicitors for the Respondent: | Clayton Utz |
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 $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1555 of 2003
| NASZ |
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 27 November 2002. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from India and had made claims of religious and political persecution. The background facts are set out in paragraphs 3-10 of written submissions prepared on behalf of the Minister by Mr Mantziaris. I adopt those paragraphs by way of background for the purpose of this judgment:
The applicant is a citizen of India who arrived in Australia on 25 November 2001: court book, page 32. He is a Hindu who resided in Tamil Nadu. He claims that he fears religious and political persecution from Muslims on the basis of his membership of RSS, a group of Hindu Nationalists and his membership of the Rathinga Vincugagar Temple Committee.
The applicant lodged an application for a protection visa (class XA) on 4 January 2002: court book, page 12. On 18 March 2002 the Minister’s delegate refused the application for a protection visa: court book, page 41. On 19 December 2002, the RRT affirmed the decision of the Minister’s delegate: court book, page 58.
The application
The application for judicial review states five grounds:
a)Ground 1 — The RRT failed to make findings on material questions of fact, namely whether the persons who threatened the applicant intended to act on those threats and whether the Indian Government failed to enforce the ban it had imposed on Al Umma.
b)Ground 2 — The RRT erred in law by its failure to find that the criminal conduct of Al Umma members and toleration of that conduct by the Indian government amounted to persecution for Convention reasons;
c)Ground 3 — The RRT erred in law by applying a wrong standard for determining the well–founded fear of persecution;
d)Ground 4 — The RRT ignored considerations relevant to the applicant’s credibility, “ie. his education, maturity, considerable business skills, experience and a comfortable standard of living available to the applicant in India as opposed to his tough life in Australia”; and
e)Ground 5 — There is no evidence that the applicant has or will receive adequate state protection if he returns to India.
The RRT’s findings
The RRT had before it the Department’s file. The applicant also appeared before the RRT and gave oral evidence.
The RRT made the following findings —
a)That the applicant was a reluctant member of the RSS in Coimbatore for a number of months: court book, pages 74.10, 74.1;
b)That RSS was an extreme Hindu nationalist group which has close links to the ruling BJP party and which has been involved in acts of violence against Muslims: court book, page 74.10;
c)That the applicant actively participated in activities at a local Hindu temple; and that there was a mosque in his area where some members of Al Umma prayed: court book, page 75.3; and
d)That the applicant was threatened by some Muslims from a mosque in Coimbatore because they perceived him to be a Hindu nationalist who had informed on Muslims to the police; and that these Muslims imputed to him a political opinion: court book, page 75.3.
The RRT found that the chance the applicant would be seriously harmed if he returned to India was remote: court book, page 75.4. The RRT based this finding on the following grounds:
a)The applicant’s evidence was that people who threatened him did not act on their threats: court book, page 75.4;
b)Al Umma was banned in India in 1998 , the police have arrested its members when they have been involved in violent activities and violence in Coimbatore has subsided since the late 1990s. The Tribunal was satisfied that if the Applicant was threatened in Coimbatore, the police would take appropriate steps to act against those people responsible for violence and if they were members of Al Umma, they would be arrested as persons belonging to an illegal organisation: court book, page 75.5;
c)There was nothing in the evidence to suggest that the people who threatened the applicant in his workplace and at his home in Coimbatore would have “the ability or the motivation to locate and harm him if he resettled elsewhere in India. They are members of an illegal organisation and, further, are members of a religious minority in a country dominated, politically and in terms of population by Hindus”: court book, page 76.2; and
d)The applicant is clearly a well–educated person, with considerable work skills and experience who could reasonably be expected to relocate to another part of India: court book, page 76.4.
The RRT was unable to be satisfied from the evidence before it that the applicant has a well–founded fear of persecution and found that the applicant is not a person who satisfies the criterion set out in s 36(2) of the Migration Act 1958 (Cth) (“the Migration Act”)): court book, pages 76.4, 76.6.
The application to the Court, as Mr Mantziaris notes, sets out five grounds of review but none are particularised beyond the simple details set out in the grounds themselves. I gave the applicant an opportunity this morning to expand upon those grounds. He told me that he was content to limit himself to what he had put in writing. Mr Mantziaris deals with the grounds of review advanced by the applicant in paragraphs 11-18 of his written submissions. I agree with those submissions and adopt them for the purposes of this judgment:
Ground 1 — Alleged failure to find material facts
The RRT was not obliged to make a finding on (a) the intentions of the persons who threatened the applicant; and (b) the Indian Government’s enforcement of the ban on Al Umma. The RRT accepted the claim that the applicant had been threatened: court book, page 75.3. The RRT was under no duty to make further enquiries to make out the applicant’s case.[1]
[1]Abebe v The Commonwealth [1999] HCA 14; 197 CLR 510, [187]. See M Aronson, B Dyer and M Groves, Judicial Review of Administrative Action (3rd ed, 2004), p 270.
No contrary evidence was led by the applicant on the Indian government’s enforcement of the ban on Al Umma other than his statement that it was hard for the government to protect each individual citizen, and that India was incapable of “getting rid of them totally”: court book, page 70.4. The RRT considered country information which allowed it to make a finding about the likelihood that Al Umma activists would be arrested as members of an illegal organisation: court book, pages 73.8-74.5.
Ground 2 — Allegation that the Indian Government's tolerance of Al Umma amounted to persecution
The above ground is misconceived for the following reasons:
(a)This was not put to the RRT;
(b)The applicant did not lead evidence about this allegation; and
(c)This contradicted country information which showed that Al Umma was an illegal organisation and that its members had been and would be arrested (court book, pages 73.8-74.5; see also court book, page 91).
Ground 3 — Application of “well founded fear of persecution” test:
The RRT correctly recited (court book, pages 64–5) and applied the well founded fear of persecution test. It accepted the applicant’s claims about harassment at work and at home: court book, page 75.3. However, it found that the applicant's fear was not well founded because:
(a)The threats received by the applicant were not acted upon;
(b)There was country information to show that Al Umma is now an illegal organisation and the members who were involved in violent activities have been arrested; and
(c)The applicant was part of the Hindu political and religious majority and the applicant could reasonably relocate.
In relation to the reasonable relocation finding, the RRT applied the Randhawa principle[2] correctly. It assessed the past and contemporaneous state of violence by Muslims against Hindus in Coimbatore and India as a whole (court book, pages 70.6–74.7) and asked whether the applicant could reasonably relocate to another part of India where he would not face a real chance of persecution: court book, pages 75.10–76.4. In making this finding the RRT also specifically referred to the applicant’s personal circumstances as “a well–educated person, with considerable work skills and experience”: court book, page 76.4.
Ground 4 — RRT ignored considerations relevant to credibility
The RRT did not make any adverse finding on the applicant’s credibility. The allegation is unfounded and irrelevant.
Ground 5 — No evidence that there is adequate state protection:
The respondent will succeed in respect of the applicant’s “no evidence” ground if it can show that there is some basis for the making of the decision and that the inference or inferences upon which the decision was based were “reasonably open” to the RRT.[3]
The RRT had adequate information before it about the Indian Government’s actions against Al Umma and the dominance of Hindus within India: court book, pages 70.7–74.6. This provides an adequate basis for the adequate state protection finding.
[2]Randhawa v Minister for Immigration (1994) 52 FCR 437, 442.
[3]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 356.
Because the applicant is self represented I have separately considered whether any jurisdictional error is apparent from the material in the court book. No jurisdictional error is apparent to me. It follows that the decision of the RRT is a privative clause decision and the application for judicial review must be dismissed.
I do now dismiss the application.
On the question of costs, the application having been dismissed I am satisfied that costs should follow the event. Mr Mantziaris submitted that I should make a costs order fixed in the sum of $4,100 on a party/party basis. The applicant referred to his impecuniosity but that is not a reason for the court to refrain from making the costs order.
I am satisfied that at least $4,000 has been expended reasonably and properly on behalf of the Minister in these proceedings.
I will order that the applicant pay the Minister's legal costs and disbursements of and incidental to the application, which I fix in the sum of $4,000.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 28 January 2005
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