SLVB v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1358

FEDERAL COURT OF AUSTRALIA

SLVB v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1358

SLVB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
S 489 of 2003

SELWAY J
20 NOVEMBER 2003
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 489 OF 2003

BETWEEN:	SLVB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SELWAY J
DATE OF ORDER:	20 NOVEMBER 2003
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant to pay the respondent’s costs on a solicitor‑client basis.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 489 OF 2003

BETWEEN:	SLVB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SELWAY J
DATE:	20 NOVEMBER 2003
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an application for prohibition, mandamus and certiorari made pursuant to s 75(v) of the Constitution and s 39B of the Judiciary Act 1903 (Cth) in relation to a decision given by the Refugee Review Tribunal (‘the Tribunal’) on 12 March 2003. It is accepted by the parties that the applicant can only succeed in this application if he can show that there was some jurisdictional error in the processes, reasoning or decision of the Tribunal.

2. The applicant arrived in Australia on 4 April 2002.  On 17 May 2002, he applied for a protection visa.  On 3 July 2002, a delegate of the respondent refused to grant the applicant a protection visa.  On 8 August 2002, the applicant applied to the Refugee Review Tribunal for review.  The Tribunal handed down its decision affirming the decision of the delegate on 3 April 2003. 

3. The applicant claimed to be an Indian citizen.  He claimed to be a Muslim.  He claimed to have a well-founded fear of persecution because in the state of Gurgat where he lived: ‘Muslims are the target of Hindu extremists and are being killed and robbed of their properties’.  He claimed that his house was burned down and that the place where he worked was almost destroyed.  He claimed that his father narrowly escaped being killed in a riot.  He gave other examples of threats to the Muslim community from the Hindu majority.  He also claimed that the government authorities in India support the Hindu majority and do not protect Muslims. 

4. In order to succeed in his application for a protection visa, the applicant had to satisfy the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) that Australia had protection obligations to the applicant by reason of the applicant having a well-founded fear of persecution for a Convention reason.  The applicant relied upon his claims to say that he did have such a fear.  The Tribunal was unable fully to test his claim because it was unable to contact the applicant. 

5. The Tribunal’s reasons record:

   ‘On 23 January 2003 the Tribunal wrote to the Applicant, copied to his adviser, stating that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone.  The Tribunal invited the Applicant to give oral evidence and present arguments at a hearing on 12 March 2003.  The Applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice.  No response was received and the letter sent to the Applicant was returned to the Tribunal unclaimed on 25 February 2003.  After several unsuccessful attempts to contact the Applicant’s adviser, on 22 February 2003 the Applicant’s adviser informed the Tribunal in writing that he had been unable to contact the Applicant.  On 26 February 2003 the Tribunal checked the address it held for the Applicant with his adviser and confirmed they were the same.  On 6 March 2003, the Tribunal again rang the Applicant’s adviser who said that he had still been unable to contact the Applicant and again confirmed the address both he and the Tribunal held were the same. 

   The Applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear.  In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the Applicant to appear before it.’

6. As the Tribunal records:

   ‘…where an applicant does not attend a hearing, the Tribunal has only the information contained in the written material before it from which to make a determination.’

7. In the result, the Tribunal was required to assess the claim without whatever assistance the applicant may have otherwise provided.  It did so.  In that regard, the Tribunal acknowledged:

   ‘India has had a long history of communal tensions.’

8. The Tribunal considered the matter further:

   ‘However, while the Applicant claims that he fears he may be killed in communal violence, and refers to his house being burnt down and the business in which he worked being almost destroyed, the Applicant does not claim that prior to coming to Australia he has ever been attacked, injured or harassed because of either his religious beliefs or race.  The Tribunal also notes that the Applicant does not claim that he has been detained, arrested, interrogated, beaten or otherwise harassed by the police or any other authorities notwithstanding the animosity he claims that the Hindus and authorities have towards Muslims.
   …

   However, notwithstanding the above, the key test for the Tribunal when considering the Applicant’s claims is not just whether he has in fact been persecuted in India in the past but rather whether he has a well-founded fear of persecution for a Convention reason if he returns now or in the foreseeable future.  The Tribunal finds that this goes to the question of the adequacy of state protection.  In this regard, and while accepting that communal violence does from time to time erupt in India as was the case in the events prompted by the killing of a number of Hindus on the Sabarmati Express by Muslims and other recent events surrounding the question of the rebuilding of the Babri Mosque or a Hindi temple in Ayodhya, the Tribunal accepts the independent country information that the Indian Government is both effectively addressing this issue and taking preventative action to avoid any further flashpoints and community violence.
   …

   and [is] crack[ing] down on any outbreaks that do occur including when this violence is instigated by Hindus against Muslims.
   …

   The Tribunal also accepts that according to 1998 Government statistics, Muslims constitute 12.7 per cent of India’s population.
   …

   The Tribunal also accepts that the Indian Constitution provides for freedom of religion and the Government respects this right in practice.  India is a secular state in which all faiths generally enjoy freedom of worship and Government policy does not favour any religious group.
   …

   Indeed, the Tribunal accepts that the Muslim community is a sizeable and well-established community in India of some 120 million strong.
   …

   The Tribunal also accepts that the judiciary is independent in India.
   …

   In short, [the] Tribunal accepts the abovementioned independent country information over the Applicant’s unsubstantiated claims and finds that effective protection is available to Muslims including the Applicant in India.  While also accepting that the Applicant may have encountered some fairly low level difficulties or discrimination in the past, in view of it’s finding that effective protection is available to the Applicant in India, the Tribunal is satisfied that any subjective fear the Applicant may have on this basis is not a well-founded fear of serious harm amounting to persecution for a Convention reason. 

   In short, based on the information provided by the Applicant and the abovementioned independent country information, the Tribunal is not satisfied that there is a real chance that the Applicant will experience serious harm amounting to persecution for a Convention reason if he returns to India or that any subjective fear the Applicant may have is a well-founded fear of serious harm amounting to persecution for a Convention reason if he returns to India, either now or in the foreseeable future, and finds that he is not a refugee.’

9. The application sets out a number of grounds of review, none of which have any obvious application to this case. The basic argument put on behalf of the applicant seems to be that the applicant should have been afforded some different or greater opportunity to make submissions to the Tribunal. It is clear that the Tribunal complied with ss 425, 425A and 441A of the Migration Act 1958 (Cth). It proceeded in accordance with s 426A of the Act. It did what it reasonably could to ensure that the applicant was afforded an opportunity to present his case.

10. I am not certain that I fully appreciate the other argument apparently put, but it seems to be that the applicant was somehow misled because some of the reasoning of the Tribunal was different from some of the reasoning of the Minister’s delegate.  It is not clear to me that there was any difference, but how he could have been misled when he did not put any submissions and apparently did not even know that the Tribunal was proceeding with the review is unclear to me.  Even if he was misled, what effect this could conceivably have had was not explained. 

11. In the alternative, the applicant puts that the Tribunal did not act in good faith.  Again, I do not understand this submission.  As the reasons of the Tribunal make clear, what happens in India is known or capable of ascertainment.  The Tribunal did so and set out its reasons clearly.  The Tribunal proceeded fairly and appropriately.  The decision it reached was obviously correct.  No error has been identified, much less a jurisdictional error. 

12. In my view this application is without merit and no arguable proposition whether of law or fact has been identified or put.  The application must be dismissed.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.

Associate:

Dated:             3 December 2003

Counsel for the Applicant:	MW Clisby with A Kent
Solicitor for the Applicant:	MW Clisby
Counsel for the Respondent:	C White
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	20 November 2003
Date of Judgment:	20 November 2003