SQYB v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1326

FEDERAL COURT OF AUSTRALIA

SQYB v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1326

SQYB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S 579 OF 2003

MANSFIELD J
14 NOVEMBER 2003
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 579 OF 2003

BETWEEN:	SQYB APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	14 NOVEMBER 2003
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        The applicant pay to the respondent 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
SOUTH AUSTRALIA DISTRICT REGISTRY	S 579 OF 2003

BETWEEN:	SQYB APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MANSFIELD J
DATE:	14 NOVEMBER 2003
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an application to quash a decision of the Refugee Review Tribunal (the Tribunal) made on 19 May 2003 and for other prerogative relief.  To succeed it is accepted that the applicant must demonstrate jurisdictional error on the part of the Tribunal.

2. The applicant is a 46 year old man who is a citizen of India and of the Muslim religion.  He arrived in Australia on 5 March 2002 and lodged an application for a protection visa shortly thereafter.  On 3 June 2002 a delegate of the respondent rejected that application.  The Tribunal on 19 May 2003 affirmed the decision of the delegate.

3. The Tribunal's reasons record in some detail the claims of the applicant as to why he satisfied the criterion for grant of a protection visa specified in s 36(2) of the Migration Act 1958 (Cth) (the Act), namely, that he is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (the Convention). In practical terms, the inquiry was as to whether he is a refugee as defined in Art 1A(2) of the Convention.

4. It is not contended that the Tribunal misunderstood the applicant's claims or failed to address them.  The Tribunal summarised the applicant's claims as being that he would be persecuted by the Indian authorities by being arrested and detained because he is a Muslim who was a member of the Student Islamic Movement in the 1970s and because of his association with ‘Zahir’ who is an official/treasurer of the Student Islamic Movement which has recently been labelled a terrorist organisation.

5. In support of his claims, the applicant gave evidence of various incidents of mistreatment allegedly because of his religion and his political association since the 1970s.  The Tribunal addressed each of those claims.  In respect of them, variously, it either rejected them or accepted them either wholly or in part, but concluded that they did not demonstrate a degree of potential harm sufficient to amount to persecution under the Convention, in particular having regard to the limitation or definition of ‘persecution’ in s 91R of the Act.

6. It is only in respect of one of those incidents or experiences that the present application is made.  The allegation is that the Tribunal committed jurisdictional error by failing to have regard to a relevant or material fact.  It is contended that the ignoring of relevant material involves jurisdictional error on the part of the Tribunal.

7. It must be said that it is not every piece of evidence which a party identifies as relevant for the purposes of a contention as a relevant fact or relevant material and which, if not adverted to in the reasons for decision of an administrative decision-maker, will demonstrate jurisdictional error on the part of the decision-maker.  It is by reference to the legislation under consideration that one determines whether material is relevant or irrelevant for the purposes of determining whether an administrative decision-maker has committed jurisdictional error by having regard to facts which are irrelevant or by failing to have regard to facts or material which is relevant.  See generally the discussion in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. I do not need to address that consideration further in this matter, because in any event I do not consider that the Tribunal erred in the way in which the applicant contends.

8. The particular incident about which his complaint is based is what the Tribunal called the ‘fruit stall incident’.  It concerns an experience of the applicant whilst he was in India during 2001.  The Tribunal has, it is acknowledged, accurately described the applicant's claims in the following passage from its reasons:

   ‘To survive in India the applicant set up a roadside fruit staff in Chennai, the Capital of Tamil Nadu.  On 25 October 2001 the Hindus pray and close their shops.  He stated that a few shops, including his, stayed open and a few people asked him to close his shop.  He refused explaining that he is a Muslim and did not celebrate Hindu religious holidays.  He stated that a few minutes later hundreds of people were throwing stones at him and stole his fruits.  The police arrived but they could not control the mob.  The fruit stall was looted and deliberately collapsed.’

9. As to that claim, the Tribunal expressed the following conclusions:

   ‘The Tribunal accepts that upon his return to Tamil Nadu in September 2001 the applicant set up a fruit stall by purchasing a stall from someone else.  The Tribunal accepts that the stall was in an area where there were mostly Hindu stall keepers.  The Tribunal accepts that the applicant refused to close his stall in observance of a Hindu religious holiday/celebration and that as a result of his refusal his stall was attacked by Hindus.  The Tribunal accepts that he complained to the police and the police informed him that he required a permit and that without a permit he was not legally entitled to have a stall in that area.  The applicant claims that he was required to pay 3000 rupees but after some lengthy negotiations he only had to pay 300 rupees.  The applicant’s evidence was that Zahir negotiated this better deal for him and his evidence was that the matter came to an end.  The Tribunal is of the view that payment of a small bribe which was able to be negotiated down is not sufficiently serious to constitute persecution.’

10. In fact, the applicant in his complaint went on to describe how he reported the incident to the police who, he claimed, ‘refused to register his complaint because his shop was illegally situated on government land’.  He further told the Tribunal that about a week later he was arrested for a short period of time and held overnight and questioned.  He had no further involvement with the police in relation to this incident until about a month later when, after a long discussion with a police officer, he was permitted to leave his stall where it was, despite it allegedly being improperly situated on government land, provided he paid a fee or payment which, after negotiation, was reduced from 3000 rupees to 300 rupees.  The applicant further claimed an occasion of arrest in January 2002 when he was arrested on suspicion of being, he claimed, a Muslim extremist.  His release was arranged through legal representation.

11. The applicant in this matter does not contend that the way in which the Tribunal dealt with those claims concerning his treatment after the ‘fruit stall’ incident in September 2001 involved jurisdictional error.  His complaint is that the Tribunal has made no finding about his complaint that on the occasion when he maintained his stall open, despite it being a Hindu religious holiday, a crowd were throwing stones at him and stole his fruits and that the police arrived but could not control the mob.  The claim that his physical integrity was at risk, and that the authorities could not protect him was not, he submitted, addressed by the Tribunal.

12. It is correct that the Tribunal does not expressly refer in the same detail to that specific complaint.  However, it has not overlooked it.  In the passage from its reasons to which I have referred above, it expressly indicates and accepts that the applicant's stall was attacked by Hindus and generally addresses his concerns. It appears to have accepted them.  It does not specifically discuss his claim that people were throwing stones at him at the time.  However, I do not think that that particular piece of information is one about which the Act required the Tribunal to make a finding.  The Tribunal was obliged by the Act to address each of the applicant’s claims.  It is not required to address each particular piece of evidence relating to each of the applicant’s claims.  His claim, relevantly, was that the fruit stall incident demonstrated, or was part of the material which demonstrated, that he had a well-founded fear of persecution by reason of his religion.  The Tribunal addressed that claim.  It accepted the fruit stall incident occurred, but it did not regard the consequences to the applicant as so serious as to amount to persecution as described in s 91R of the Act.  The particular piece of evidence was, as I read the Tribunal’s reasons, part of the material it addressed in reaching that view.  Consequently I do not consider the particular information is relevant information which, by reason of not being expressly mentioned as the subject of a finding in the Tribunal's reasons, demonstrates jurisdictional error on its part.

13. There are other reasons why the applicant's claim in this regard must fail.  The Tribunal has not expressly addressed the question of whether the attack upon the applicant's stall and himself in September 2001 in the circumstances was for a Convention reason.  I raised that with counsel for the applicant.  He did not point to any evidence which specifically supported such a conclusion.  The evidence indicates that the stall was in an area which generally was closed for the observance of a Hindu religious holiday celebration.  The fact that those present might wish non-Hindus not trade on that occasion and in that place, by reason of their religious holiday and celebration, does not demonstrate that the attack upon the applicant was by reason of his race or his religion.  Such an attack may have been directed at any person, even if a Hindu, who chose to trade in contravention of what appears to have been the expectation of the general stallholder community on that occasion.

14. It does not appear, at least on the material identified to me, whether there was any formal - that is, governmental - regulation controlling the conducting of business on that occasion.  If there were no such governmental regulation, the applicant’s claim might be more tenable.  At present the evidence simply does not take that step.  It may simply have been an occasion where those who were not trading in compliance with both a religious holiday and in accordance with either a conventional or governmental prescription that there should not be trade in that place at that time.  In that event, the reaction against the applicant may simply have been against someone not complying with those requirements, and have nothing to do with any personal characteristics such as his religion or for any other Convention reason.

15. Furthermore, as counsel for the respondent pointed out, the fact that on a particular occasion the local authorities are unable to control a group of persons who are rioting, does not demonstrate persecution on behalf of the authorities towards the applicant.  Generally speaking, persecution is demonstrated by the state instrumentality itself engaging in conduct adverse to the particular person or group of persons.  That is not always the case.  There are instances where the adverse conduct is engaged in not by the government or its instrumentalities, but by persons independent of it.  In those circumstances where the authorities are unwilling or unable to enforce the rule of law equally amongst all citizens, including the persons being attacked, there may be persecution demonstrated in accordance with the Convention.  That is not shown simply by reason of one occasion in which there is an attack by third parties upon a person, even for a Convention reason, where the authorities are slow to react or are unable to react.  Something more needs to be demonstrated.

16. Subsequently, in its reasons for decision, the Tribunal expressly found that on the evidence there was nothing to support the conclusion that the criminal laws are being selectively enforced against Muslims.  It noted:

    The independent evidence before the tribunal is that India has a sophisticated and fair criminal and judicial system and the treatment of the applicant during the period of his arrest confirms that.

17. The fruit stall incident of which the applicant complains, even if entirely true, does not demonstrate that the Indian authorities were either unwilling or unable to enforce the law, generally speaking, in relation to the applicant or Muslims or persons of his political beliefs.

18. For those reasons, in my judgment, the applicant has failed to demonstrate jurisdictional error on the part of the Tribunal and the application should be dismissed.  I so order.

19. I order that the applicant pay the respondent costs of the application.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:            18 November 2003

Counsel for the Applicant:	Mr M Clisby
Solicitor for the Applicant:	M W Clisby
Counsel for the Respondent:	Mr J van Lingen
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	14 November 2003
Date of Judgment:	14 November 2003