Sharma v Minister for Immigration &Multicultural Affairs

[2000] FCA 312

FEDERAL COURT OF AUSTRALIA

Sharma v Minister for Immigration &Multicultural Affairs [2000] FCA 312

VARUN SHARMA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1276 OF 1999

LEHANE J
14 MARCH 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1276 OF 1999

BETWEEN:	VARUN SHARMA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	LEHANE J
DATE OF ORDER:	14 MARCH 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent’s costs of the application.

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 1276 OF 1999

BETWEEN:	VARUN SHARMA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	LEHANE J
DATE:	14 MARCH 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal dated 26 October 1999.  By its decision, the Tribunal affirmed a decision made on 3 September 1999 by a delegate of the Minister by which the delegate refused to grant the applicant a protection visa.  The applicant, according to the material before the Tribunal, is an Indian national who arrived in Australia, on a passport issued in his own name and with a student's visa, on 19 April 1998.

2. About 14 months after his arrival he lodged his application for a protection visa.  The basis of his claim to fear persecution in India for Convention reasons appears principally in a lengthy hand written document which was before the Tribunal.  In summary, the applicant relied upon a series of events commencing with what he said was the charging of his brother in connection with a murder, the charge being entirely false and (according to the applicant) concocted.  That was said to have been followed by a series of events in connection with a lottery business run by the applicant's brother, in which the applicant participated as an assistant to his brother: the Indian government imposed a ban on lotteries in New Delhi; when that ban was overturned by the Indian courts, the police began soliciting bribes; when the government became aware of this, it imposed taxation on a scale which prevented not only the profitable operation of the business but also the payment of bribes to the police.  The applicant gave evidence that this led to continuing harassment by particular police, including arrests, beatings and the laying of further concocted charges.  He gave evidence also of circumstances following a relationship which he formed with a girl whose father disapproved of the relationship: that resulted, according to the applicant’s evidence, in harassment by the girl's father and by members of her family and further harassment by particular police.

3. The Tribunal was prepared to proceed on the basis that what the applicant told it was substantially correct.  Nevertheless, the Tribunal concluded that the applicant is not of adverse interest to the Indian authorities, placing some weight on the fact that he was able to leave India on a passport issued in his own name despite strict surveillance and controls at Indian airports.  Additionally, and perhaps more importantly, the Tribunal came, in rather briefly expressed reasons, to two further conclusions of fact.

4. One of those findings was that there was no basis on which it could form a view that the harm which the applicant claimed to fear was directed at him for a Convention reason: the conduct of the police was motivated by the prospect of monetary gain, and that of his girlfriend’s family by personal antipathy towards the applicant.  Moreover, the Tribunal records a question asked by it of the applicant as to his political opinion, to which the applicant provided, according to the Tribunal's account in its reasons, no answer which suggested any clear connection between any political opinion he may have held and the harassment which he claimed to have suffered.

5. The second finding of particular importance was that the harm which the applicant claimed to fear was directed at him by particular persons in a particular part of the country, not by anyone else.  The Tribunal accordingly concluded that the applicant could avoid the harm which he feared he would suffer if he returned to his home in New Delhi by relocating to another part of India (as the Tribunal recorded that his brother had done), and that it was reasonable to expect him to do so given his education, language and business skills.  In other words, the Tribunal applied the relocation principle affirmed by the Full Court in Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437.

6. The Tribunal's conclusion, based upon those findings of fact, was that it was not satisfied that the applicant was a person to whom Australia had protection obligations and accordingly it affirmed the delegate’s decision to refuse the applicant a protection visa.

7. The applicant represented himself before me on his application for judicial review.  He said that there was no point in his returning to India rather than remaining in Australia if, on returning to India, he could not go where his parents lived; if he was in any event to be cut off from contact with them, it was better for him to be here than in some other part of India.

8. Secondly, he said that the Tribunal did not allow him an opportunity to obtain certain documents on which he would have wished to rely, documents relating to the harm of which he gave evidence, particularly the false charges which had been made against his brother: but, as I have mentioned, the Tribunal proceeded on the basis that the applicant’s account was substantially correct.  Thirdly, the applicant said that, were he to return to India, he would be harassed and subjected to false charges and would be unable to protect himself against them because he lacked the money necessary to pay bribes; but, in answer to a question from me, he said that he was indeed referring to his home in New Delhi rather than to any other part of the country in making that submission.

9. It is, I think, plain that the applicant has not identified an error of law in the Tribunal's decision or any other of the limited grounds on which it might be set aside under Pt 8 of the Migration Act 1958 (Cth). I have considered the Tribunal's decision and I have read the volume of relevant documents filed by the Minister. Certainly it is true that the reasons given by the Tribunal are brief. It may be that in some respects they are not as clear as they might be, but what is plain is that the Tribunal made the two findings of fact to which I have referred. Those were findings which were clearly open on the material before the Tribunal and they are not open to review in this court.

10. That being so, the result must be that the application is dismissed. Accordingly, the orders of the court are that the application be dismissed and, as the Minister has sought an order for costs, that the applicant pay the respondent's costs of the application for judicial review.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane.

Associate:

Dated:             31 March 2000

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	S McNaughton
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	14 March 2000
Date of Judgment:	14 March 2000