NBJS v Minister for Immigration

[2005] FMCA 643

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NBJS & ANOR v MINISTER FOR IMMIGRATION  [2005] FMCA 643

MIGRATION – Visa – protection (class XA) visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the Applicants a protection visa – Applicants are citizens of India – relocation – whether applicants can safely relocate within India – RRT correctly applied Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1994) 124 ALR 265 – no reviewable error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.475A, 477

Applicant S256 of 2002 v. Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA FC 170
Randhawa v. Minister for Immigration Local Government and Ethnic Affairs (1994) 124 ALR 265

First Applicant: NBJS

Second Applicant: NBJT

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG 229 of 2005

Delivered on: 4 May 2005

Delivered at: Sydney

Hearing date: 4 May 2005

Judgment of: Scarlett FM

REPRESENTATION

Applicants: In Person

Solicitor for the Respondent: Ms Alex

Solicitors for the Respondent: Phillips Fox

ORDERS

1. That the Application is dismissed.

2. That the Applicants pay the Respondent’s costs fixed in the sum of $2,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 229 of 2005

NBJS

First Applicant

And

NBJT

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 18 October 2004 and handed down on 10 November 2004.  The Tribunal affirmed the decision of a delegate of the Minister not to grant protection visas to the Applicants.

Background

1. The Applicants are citizens of India. They arrived in Australia on visitors’ visas on 12 February 2004. On 10 March 2004 they both applied for protection class XA visas claiming a well founded fear of persecution on the ground of political opinion.  A delegate of the Minister refused their applications on 11 June 2004.

2. The Applicants sought a review of the delegate's decision from the Refugee Review Tribunal on 7 July 2004. The Refugee Review Tribunal invited them to attend a hearing on 12 October 2004. The First Applicant, the husband, gave oral evidence to the tribunal. The Second Applicant, who is the First Applicant's wife, did not give evidence.  Her claim for a protection visa relies on that of her husband.  She made no independent claim for a protection visa.

3. The First Applicant says that he is a Muslim man born in Kerala where he lived until he relocated to Bangalore in February 2001.  He joined the Indian Union Muslim League in Kerala and became active in politics.  He also started a hardware business.

4. In 1999 the First Applicant was elected as a candidate to contest the municipal election.  This aroused some opposition from members of other political parties and the applicant said that extremists from the BJP and the RSS beat him up severely.

5. In December 2000, extremists again attacked him.  They looted his store. The Applicant decided to move to Bangalore where he started up a new business.  Again, he says that he faced trouble and threats to his life from BJP and RSS extremists. 

6. He told the Refugee Review Tribunal that these incidents happened in Kerala not Bangalore.  The First Applicant said that he would commute back to Kerala in connection with his business.  Extremists had attacked his house in Kerala in May 2003 whilst he was in Bangalore. The First Applicant said that although it was known in Bangalore that he was associated with the IUML in Kerala nothing adverse had happened to him in Bangalore. The First Applicant told the tribunal that he continued to return to Kerala to see his parents.

7. The tribunal member asked the First Applicant why he could not relocate to somewhere like New Delhi or even remain living in Bangalore where he had not experienced any threats. The First Applicant said that those people who wished to harm him would pursue him throughout India, although the tribunal member put to him that this had not happened to him in Bangalore.

8. The First Applicant told the tribunal that it would be difficult to relocate to somewhere like New Delhi as he would have to learn to live in a new locality. He said that Bangalore was not good economically and he only had rented accommodation there.  The RRT accepted that the First Applicant had suffered from harassment in Kerala.  The RRT also noted that the First Applicant had lived in Bangalore for three years prior to coming to Australia without coming to harm.

9. Whilst the tribunal considered that life might be harder in Bangalore than in Kerala any hardship suffered in relocating from Kerala to Bangalore was not:

   Sufficiently serious as to make it unreasonable in the particular situation of the Applicants.

   Refer to page 13 of the tribunal decision.

10. The tribunal accepted that Muslims in India might feel on occasions intimidated as a religious minority but noted that Bangalore has a population that 11.6 per cent Muslim and a state government controlled by the Congress Party not the BJP.

11. The tribunal found that if the Applicants preferred not to live in Bangalore they could relocate to an area:

    Where inter-religious conflict is rare.

    That quote is also from page 13 of the tribunal decision.

12. The tribunal also found that relocation to another city such as New Delhi would necessarily involve a degree of hardship but relocation would be reasonable in the Applicants' situation.  The tribunal noted that the BJP had lost national government to the Congress Party which is described as more inclusivist and did not accept the First Applicant's claims that India was becoming increasingly difficult or dangerous for Muslims.

13. The tribunal also noted that Muslims as a religious minority may at times suffer verbal insults and minor physical harassment but such experiences would be random and rare.  In any event, the tribunal did not find that any such harm would be sufficiently serious as to constitute persecution.

14. As a result, the tribunal found that there was not a real chance the Applicants would face persecution in the foreseeable future for their religion or their political opinion.  The tribunal found that the Applicants' fear was not well founded.  On 16 March 2005, the Applicants filed an amended application in which they seek the issue of writs of certiorari and mandamus.

15. The amended application refers to this ground:

    That the RRT decision was effected to take into account a relevant consideration when it assessed whether the delegate of the Minister raised reasonable grounds for not granting a protection visa.

16. I am not entirely sure what this means but I assume that there has been a typing error and that the words:

    A relevant consideration -

    - should really be an irrelevant consideration.

17. The Applicants set out particulars of their claims on the second page of the application, there are five of them. The first one begins:

    The tribunal did not properly consider in assessing the chance of my persecution and persecuted on my return to India based on the member of a particular political involvement and member of minority religious group in India.

18. The balance of the paragraph sets out matters relating to the Applicants' claim which I need not repeat. The Applicant finishes by saying:

    My persecution is a convention based persecution.

19. The second particular is that the Applicant says:

    It is very hard to submit relevant documentary from India because no one helped me.

20. The third particular:

    The tribunal's satisfaction that I am not a refugee was not based upon reasoning which provided irrational or logical foundation for this belief.

21. Four:

    The tribunal did not observe Migration Act 1958 properly by making the decision.

22. Five:

    The tribunal failed to consider my claims.

23. The Applicant went onto say in his amended application:

    I will provide more details to support my judicial review application in my outline of submissions.

24. The Applicant did not file an outline of submission or any other document. 

25. I have read the outline of submissions submitted by the solicitors for the Respondent. The submission at paragraph 15 sets out or concentrates on the proposition that the RRT decision ultimately turned on the finding that it was reasonable for the Applicants to relocate.  The Respondent submitted that it is well established that a finding of relocation provides a separate and independent basis for the RRT to affirm the refusal to grant a protection visa.  The Respondent gives as an example the decision in Applicant S256 of 2002 v. Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA FC 170 at paragraph 18.

26. To my mind the thrust of the Respondent's submission is found in paragraph 16 and the following paragraph.  Paragraph 16 says:

    The Respondent submits that the finding of the RRT in this particular matter was open to it based on the facts of the case and the evidence before it.  The Applicant had previously lived in Bangalore without trouble.

27. The Respondent referred the Court to the well known authority of Randhawa v. Minister for Immigration Local Government and Ethnic Affairs (1994) 124 ALR 265, where the Court applied the principle that an application for a protection visa must have a well founded fear of persecution throughout their country.

28. Alternatively, if an applicant's well founded fear is confined to some part of their country he or she may still be entitled to a protection visa if it is not reasonable to expect them to return to the part or parts of the country where their fears of harm are not well founded.

29. Turning to the amended application again, the evidence does not support the Applicants' claim that the Tribunal did not properly consider in assessing the chances of their persecution on their return to India.  In my view the Tribunal's decision did consider that very point and the Applicant of course gave evidence to that effect at the hearing.  To me the facts do not support that ground at all.

30. In ground 2 where the applicant said that it is very hard to submit relevant documents or documentary evidence from India, he explained that he would have liked to have received a police report relating to the looting of his shop. To my mind there is no necessity to have obtained such a document.

31. The Tribunal was prepared to accept that the Applicants' shop had suffered loss and damage in Kerala, so there was no need for that to be proved further.  The Applicants' claim that the Tribunal's satisfaction that they are not refugees was not based upon reasoning which provided a rational or logical foundation for this belief cannot stand either.

32. It appears from me, having read the decision thoroughly that there was ample evidence that the tribunal could use to satisfy itself that the Applicants' claim for a protection visa should not be granted.  The reasoning in this decision to my mind is neither irrational nor illogical.

33. Relating to particulars 4 that the tribunal did not observe the Migration Act in making the decision I asked the First Applicant which part of the Act the tribunal had not observed and he was unable to answer the question at all. From my reading of the decision I am unable to identify any breach of the Migration Act.

34. The fifth particular of course is that:

    The tribunal failed to consider my claims.

35. To my mind the Tribunal did consider the Applicants' claims.  The Tribunal invited the Applicants to attend the hearing and the First Applicant gave evidence. The Tribunal member questioned the Applicant about his evidence and brought parts of the independent country information to his attention.  The written reasons for the decision to my mind show clearly that the tribunal did consider the Applicants' claim but was not satisfied that the Applicants made out a claim for a well founded fear of persecution for a convention reason.

36. In my view the Tribunal focused appropriately on the question of whether the two Applicants could relocate within India and followed the principles of the decision in Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, to which I have previously referred.

37. In my opinion, Randhawa is a decision which this Court should follow and I am satisfied that it sets out the state of the law in this area. The Tribunal member considered the principles set out in that decision and applied them correctly.

38. As the Applicants are not legally represented I have read through the decision thoroughly in order to ascertain whether there is any other likely jurisdictional error.  I can find no jurisdictional error. In my view, as there is no reviewable error the application must be dismissed.

39. The Applicants have been unsuccessful. Costs follow the event, in other words a successful party is entitled to seek an order for costs. In my view the lump sum of $2500 that is sought is a modest figure and well within the range of lump sum costs envisaged by Schedule 1 of the Federal Magistrates Court Rules.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V Lee

Date:  16 May 2005