Shaikh v Minister for Immigration and Multicultural Affairs

[2001] FCA 1310

FEDERAL COURT OF AUSTRALIA

Shaikh v Minister for Immigration & Multicultural Affairs [2001] FCA 1310

MOHAMMAD SIDDIQUE SHAIKH v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 349 OF 2001

EMMETT J
27 JULY 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 349 OF 2001

BETWEEN:	MOHAMMAD SIDDIQUE SHAIKH APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	27 JULY 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 349 OF 2001

BETWEEN:	MOHAMMAD SIDDIQUE SHAIKH APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	27 JULY 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant, who is a citizen of India, arrived in Australia on 10 February 1999.  On 24 February 1999 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs.  On 22 March 1999 a delegate of the respondent, the Minister for Immigration and Multicultural Affairs (“the Minister”), refused to grant a protection visa and on 8 April 1999 the applicant applied for a review of that decision by the Refugee Review Tribunal (“the Tribunal”).  On 13 February 2001 the Tribunal affirmed the decision not to grant a protection visa.

2. By application filed in this Court on 2 April 2001 the applicant seeks an order of review of the decision of the Tribunal and an order directing the Tribunal to consider his application further.  The grounds set out in the application are as follows:

   “1.The applicant was a member and organiser of one of the Moslem minority group and that have been continuously discriminated against and assaulted by the majority Hindu Community and his life was under threat.

   2.The Tribunal unjustly refused the applicant’s claim without considering the gravity of the claims; as such the Tribunal member failed to act according to section 476(2)(e).

   3.The Tribunal failed to act in accordance with section 476(2)a; this breached the provisions of the natural justice.

   4.The Tribunal failed to act according to substantial justice. The Tribunal member ignored the merits of the case. His case was not treated fairly which is breach of section 420 of the Migration Act 1958.”

3. The applicant was unable to advance any submissions in support of the grounds.  He was not assisted by any legal representation and appears to have very limited knowledge and understanding of English.  He was, however, assisted by an interpreter in the proceeding before me today. 

4. It is apparent that the applicant had some assistance in preparing his application. The references to section numbers are clearly erroneous. However, I shall take them to refer to ss 476(1)(e) and 476(1)(a) of the Migration Act 1958 (Cth) (“the Act”). Those provisions provide grounds of review on the basis of error of law or on the basis that procedures required by the Act to be observed were not observed. The reference to s 420 is clearly misconceived in the light of recent decisions of the High Court.

5. I have considered the reasons of the Tribunal for reaching its decision to affirm the decision of the Minister’s delegate.  The Tribunal summarised the claims made by the applicant.  He claimed that he was a member and organiser of one of the Muslim minority groups that have been continuously discriminated against and assaulted by the majority Hindu community in India.  He told the Tribunal that his ancestors used to live in East Bengal, which is now Bangladesh, and which was then united with India. 

6. He said that his parents moved to Mumbai in the early 1940s and continue to live there.  He claimed that he had been discriminated against by educational institutions where he was physically assaulted and thrown out of his classroom by the Hindu fundamentalist teachers and fellow students because of his father’s active participation against Hindu suppression in their local area.  The applicant told the Tribunal that his father had sent him to Bangladesh, where some of his relatives live.  There he completed his secondary and higher secondary education under the supervision of his relatives. 

7. He was married and then moved back to Mumbai and assisted his father’s small business in the local area.  He claims that he was physically assaulted on several occasions.  He submitted written complaints to the police.  He claimed the police were reluctant to take action against Hindu community leaders.  He claimed that he tried to organise minority community groups against the BJP, which became more active after the BJP fundamentalist party came to power in India.  He claimed that terrorist groups attacked his family business and injured his brother seriously.  He also claimed that BJP fundamentalist groups openly threatened to kill his family members unless they handed him over to them.

8. The applicant claimed that that a group lodged a false and fabricated case against him, accusing him of conspiring against the State and of being involved in rebellious activities.  He claimed that his life was at risk should he return to India and that he would be killed by Hindu fundamentalists.  He said that he would be imprisoned for life if local law enforcement authorities caught him.

9. The Tribunal did not specifically make findings in terms of the claims that I have just summarised.  However, the Tribunal appears to have decided the case on the basis that the claims are true.  The Tribunal accepted that the applicant may be at risk of persecution in a period of communal violence during a period of anarchy or lawlessness.  However, the Tribunal relied on country information that indicated that that type of risk was confined to certain parts of India and did not extend to India as a whole.  The Tribunal noted that at least 120 million Muslims reside in India and that they make up a minority of over twelve per cent of the population of over one billion.

10. The Tribunal considered that the information before it indicated clearly that not all Muslims are at risk in India.  The Tribunal found that the Indian Constitution provides for freedom of religion and that the Government respects that right in practice.  The Tribunal accepted that there had been difficulties for some Muslims, but it took into account the fact that police have taken action against protagonists of communal violence no matter to which denomination they belong. 

11. The Tribunal accepted that there are deep-seated animosities within and between religious communities in India.  However, the Tribunal accepted evidence that India provides a reasonable level of efficiency of police, judicial and allied services.  The Tribunal approached its task on the basis that the question was whether India has effective law enforcement and the infrastructure designed to protect its nationals against harm of the sort said to be feared by the applicant.  The Tribunal concluded that India clearly does have such an infrastructure.  The Tribunal was satisfied that there is nothing illusory or unpredictable about the protection that is available in India to persons like the applicant.

12. The Tribunal was therefore satisfied that the applicant has no well-founded fear of persecution for reason of his religion or any political opinion imputed or otherwise.  The Tribunal also considered the possibility of relocation by the applicant if he returned to India.  The Tribunal considered that there is no reason why the applicant must return to Mumbai.  The Tribunal was satisfied that relocation to another part of India was a reasonable and feasible option for the applicant, given that he has lived in Mumbai for only intermittent or short periods. 

13. The Tribunal did not accept that the applicant would be at risk in every part of India.  The Tribunal noted that the applicant could give no reason for not living in a place like Calcutta, where the education, work and language skills of the applicant would be easily transportable.  The Tribunal considered that the applicant’s previous travel around the Indian sub-continent and the Middle East gave him the experience to make a new start in India, should he feel unsafe in Mumbai.

14. The Tribunal concluded that in the particular circumstances of the applicant's case the availability of protection in India is such that an objective basis, upon which a well-founded fear of persecution might rest, does not exist.  The Tribunal was therefore satisfied that the applicant has no well-founded fear of persecution for reason of his religion or his political opinion, whether imputed or otherwise, or for any other Convention reason, upon return to India.  In any event, the Tribunal was satisfied that, should the applicant feel fearful in returning to Mumbai, he could find protection in India by relocating to another part and, in his particular circumstances, it was reasonable and feasible for him to do so.

15. I do not perceive any error in the reasons of the Tribunal that would fall within s 476(1)(e). Nor is it apparent that there was any procedure required to be observed by the Act that was not observed in connection with the Tribunal’s decision. In the circumstances, I am not satisfied that any ground in s 476(1) of the Migration Act has been demonstrated by the applicant.  That is the only basis upon which this Court can interfere with the decision with the Tribunal.  Accordingly, it follows, in my opinion, that the application must be dismissed. 

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             12 September 2001

Counsel for the Applicant:	The applicant appeared in person.
Counsel for the Respondent:	Mr G R Kennett
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	27 July 2001
Date of Judgment:	27 July 2001