Sharma v Minister for Immigration and Multicultural Affairs

[2000] FCA 273

FEDERAL COURT OF AUSTRALIA

Sharma v Minister for Immigration & Multicultural Affairs [2000] FCA 273

JATINDER KUMAR SHARMA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1161 OF 1999

LEHANE J
7 MARCH 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1161 OF 1999

BETWEEN:	JATINDER KUMAR SHARMA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	LEHANE J
DATE OF ORDER:	7 MARCH 2000
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 1161 OF 1999

BETWEEN:	JATINDER KUMAR SHARMA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	LEHANE J
DATE:	7 MARCH 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application under Pt 8 of the Migration Act 1958 (Cth) for review of a decision of the Refugee Review Tribunal dated 9 September 1999. By its decision the Tribunal affirmed a decision of a delegate of the Minister dated 10 September 1997 not to grant the applicant a protection visa.

2. The applicant is a citizen of India.  He comes from Jammu and Kashmir.  He arrived in Australia on 17 May 1996 on a valid Indian passport issued in his own name.  The Tribunal found that the applicant had had eleven years of schooling; that he reads and writes three languages, including English and Hindi; and that, between 1985 and the time when he left India, he was employed in various ways in business, mostly in his home state but also for a period of six months in New Delhi.

3. The applicant is a Hindu.  He claimed to have been a member of Shiv Sena, a Hindu nationalist organisation, and he claimed to fear persecution by Muslims on account of his religion and also on account of a political opinion imputed to him by virtue of his membership of Shiv Sena.  He gave evidence, both orally during the hearing before the Tribunal and in documents which he submitted in support of his initial application, of a number of threats of violence and death made to himself and to members of his family in his home state.  He claimed that the authorities, including the army, were unable to offer him protection.

4. At the hearing before the Tribunal, the applicant gave evidence that his father had very recently been killed by Muslim terrorists and that his mother and other members of his family continued to receive threats and demands for money on the footing that the applicant, being in Australia, was in a position to send money to his family; and there was in evidence before the Tribunal documentation as to transfers of funds and documents purporting to be medical certificates concerning the death of the applicant's father.

5. The Tribunal expressed some scepticism concerning the claims which the applicant made, particularly as to the circumstances in which it was claimed that the applicant's father had died.  The Tribunal, however, did not make any particular findings about those matters.  Instead the Tribunal addressed the question whether, assuming that the applicant had a well founded fear of persecution for Convention reasons in Jammu and Kashmir, he had such a well founded fear in relation to India as a whole.

6. In other words, the Tribunal dealt with the matter on the basis of what is commonly called the relocation principle as that principle emerges from Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 and numerous subsequent cases. The Tribunal's findings in that respect, based substantially upon country information available to it, were that adequate national protection existed for Hindus and particularly for members of Shiv Sena in numerous parts of India including, for example, Mumbai and New Delhi. The Tribunal referred particularly to the attitude of the current Government of India with which, according to the Tribunal's findings, Shiv Sena was closely affiliated.

7. The Tribunal addressed the question of the reasonableness of requiring that the applicant relocate to somewhere other than his home state and found that it was reasonable to expect that he would do so.  It summarised its findings in this respect as follows:

   “He is in his very early 30s.  He is well educated.  He speaks Hindi and English fluently.  He has a substantial knowledge of and experience in the automotive spare parts trade.  His adviser described him as ‘a businessman … educated and energetic.’  The applicant has previously demonstrated, in India, his ability to start anew in another place when he moved to New Delhi in September 1986, at the age of 18, to work in the electronics industry.  He has also demonstrated his entrepreneurial skills and resourcefulness when establishing his own business with the restaurant and then a spare parts store.”

8. In those circumstances the Tribunal found that, first, the applicant had no well founded fear of persecution in parts of India other than his home state and, secondly, that there were no factors which made it unreasonable to expect him to relocate.  For those reasons, the Tribunal reached its conclusion that the primary decision should be affirmed.  

9. The applicant's application filed on 8 October 1999 states as the ground of the application an error of law involving the incorrect interpretation of the applicable law or an error involving the incorrect application of the law to the facts as found.  The particular given is that the Tribunal incorrectly applied the test for relocation to the facts as found by it.  The applicant, who appeared for himself at the hearing, made submissions which I think may be characterised as going to the fairness of the Tribunal's decision and to the attitude which the Tribunal took to the merits of the case. 

10. The applicant also referred to certain events which he claimed had occurred since the Tribunal made its decision.  In particular, the applicant claimed that it was not reasonable to expect him to relocate because he had lived in New Delhi only for six months when he was aged about seventeen and had not at any other time lived in any part of India other than his home state.  He claimed also that there were Muslim terrorists – and therefore that Hindus were at risk – throughout India; consequently, if he returned, he would be at risk.  The applicant referred particularly to a recent event in which he said a businessman had been killed by Muslims in the precincts of a temple in Mumbai.  The applicant added that he had left his family behind and chosen to live in Australia where one could live in peace, and he asked why he would do that if he were not genuinely afraid that serious harm would befall him if he returned to any part of India.  Additionally, the applicant referred to an event which he claimed had occurred recently involving the arrest by the Indian authorities of a number of members of Shiv Sena. 

11. All those matters, however, go to the merits of the decision made by the Tribunal and not to any ground on which a decision of the Tribunal is reviewable by the Court under Pt 8 of the Migration Act.  I have considered the decision of the Tribunal with some care.  Its findings and reasons are quite briefly expressed but it is clear in my view that the Tribunal made no error of law, either in its statement of the general principles by reference to which the Convention definition of refugee is applied or in its consideration of the particular principles to be applied where, although there may be a genuine fear of persecution in one part of the relevant country, nevertheless protection is available in other parts of the country.

12. Having found as a matter of fact that the applicant did not have a well founded fear of persecution in parts of India other than his home, state the Tribunal in my view disclosed no error of law in the process of reasoning by which it reached its conclusion.  For those reasons, the result must be that the application is dismissed.

13. The Minister seeks his costs of the application.  There is, I think, no particular circumstance which would justify me in departing from the general rule that the Minister obtains an order for payment of costs where an application fails.  Accordingly, the orders of the court will be:

    1.The application is dismissed.

    2.The applicant is to pay the respondent's costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane.

Associate:

Dated:             24 March 2000

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	R J Bromwich
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	7 March 2000
Date of Judgment:	7 March 2000