Syed v Minister for Immigration and Multicultural Affairs

[2000] FCA 214

FEDERAL COURT OF AUSTRALIA

Syed v Minister for Immigration & Multicultural Affairs
[2000] FCA 214

AZMATULLAH SYED v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 1388 of 1999

SACKVILLE J
SYDNEY
1 MARCH 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1388 of 1999

BETWEEN:	AZMATULLAH SYED APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	1 MARCH 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed, with 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 1388 of 1999

BETWEEN:	AZMATULLAH SYED APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	SACKVILLE J
DATE:	1 MARCH 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is an Indian citizen, aged 30, who arrived in Australia on 29 June 1996.  He seeks an order for review of a decision of the respondent (“the Minister”) said to have been made on 2 November 1999, to deny the applicant a protection visa.  In fact, the decision of 2 November 1999 was made by the Refugee Review Tribunal (“RRT”).  By that decision, the RRT affirmed a decision of the Minister’s delegate to refuse to grant a protection visa to the applicant.  The representative for the Minister has been content to treat the application as one for review of the decision of the RRT.

2. The application for review does not identify with any clarity the basis on which the applicant says that the decision of the RRT is liable to be set aside. However, the applicant has filed written submissions in which he asserts that the RRT made an error of law and that its decision is liable to be set aside pursuant to s 476(1)(e) of the Migration Act 1958 (Cth). The applicant appeared at the hearing without legal representation.

   Background

3. The applicant was born in Hyderabad, the capital of the State of Andhra Pradesh.  He entered Australia on a student visa in June 1996 and undertook tertiary studies in commerce.  He did not apply for a protection visa until he had been in Australia for some fifteen months, a delay that the RRT considered to be significant in the context of the applicant’s claims.

4. In the event, the applicant lodged an application for a protection visa on 4 September 1997.  On 3 December 1997, a delegate of the Minister refused to grant a protection visa to the applicant.  On 23 December 1997, the applicant sought review of that decision.  The hearing before the RRT did not take place until 7 October 1999.  On 2 November 1999, the RRT affirmed the delegate’s decision.

5. The applicant’s claims were set out in his initial application and in written submissions both to the Department of Immigration and Multicultural Affairs and the RRT.  The applicant gave evidence before the RRT, with the assistance of an interpreter.  The applicant was also assisted by a representative, apparently a migration agent.  Evidence was also given by several witnesses on the applicant’s behalf.

   The Applicant’s Claims

6. The applicant claimed to be a Muslim, from a farming family whose farm was located in the village of Pitlam, about 150 kilometres from Hyderabad.  The applicant said that the area around Pitlam had become a war zone, because of continual violence between Naxalites and local landowners and Muslims.  According to the findings of the RRT, the Naxalites comprise extreme left-wing groups that have broken away from the Communist Party of India (Marxist Leninist).  The Naxalites have pursued violent guerilla activities, especially in Andhra Pradresh.

7. The applicant said that he had undertaken studies in science at a college in Hyderabad beginning in 1987.  He had been elected president of the students’ organisation at the college in 1991.  At about this time, he had become involved with the Student Islamic Organisation (SIO), an organisation closely affiliated with a Muslim political party.  He claimed that he had been threatened by Hindu members of a college group aligned with the Hindu BJP Party.

8. The applicant claimed that there had been a violent attack on his residence in Hyderabad in 1991, when Hindu BJP people had entered his home and attacked his cousin.  According to the applicant, his cousin had died shortly thereafter.  The applicant said that he had escaped and reported the incident to the police.

9. The applicant also said that he had become a police informer following an incident at his family’s home in 1990.  At that time, five Naxalites had demanded money and land from the applicant’s father.  The father had refused to comply.  As a result, the applicant’s sister had been raped in front of her father and, according to the applicant, had subsequently committed suicide.  This incident had not been reported to the police.  The applicant claimed, however, that he had tracked down one of the perpetrators and had poisoned him, as well as a woman unconnected with the violent incident.

10. The applicant claimed to have acted as a police informer for two or three years.  In about 1993 the Naxalites had learned of his actions, and he was forced to flee.  Naxalites came looking for him at his home and maintained a watch for him.  According to the applicant, his parents had received a threatening letter and his brother had been shot in 1993 by Naxalites.  Moreover, so the applicant claimed, Naxalites had bombed the family property.

11. The applicant said that he feared that the Naxalites would kill him because of his role as an informer and because he had been involved with a Muslim political party.  He said that he would not have come to Australia had he not been forced to leave India.  Although the applicant had stated in his application that he feared returning to India because of persecution against Muslims, he said at the hearing that it was his fear of retribution at the hands of Naxalites that was the main reason for his unwillingness to return to India.

    Reasoning of the RRT

12. The RRT accepted that the applicant was from a Muslim farming family in Andhra Pradesh; that he had been president of the students’ organisation at his college until January 1992; and that he had some involvement with a Muslim political party, although not since 1993.

13. The RRT accepted that there had been an incident in 1991 in the course of which the applicant’s cousin had died.  The RRT, however, was not satisfied that this attack was directed at the applicant.  The applicant, for example, had continued as president of the students’ organisation for some time after the incident and had sat for examinations in March 1992.  The RRT considered that, had those responsible for the attack been determined to harm the applicant, there would have been additional evidence of their efforts directed specifically at him.

14. The RRT also accepted that it was possible that the applicant’s family, as well-off landowners, could have been subjected to demands and some violence from Naxalites wanting money.  But the RRT did not accept the applicant’s account of the alleged Naxalite attack on his family home in 1990.  The RRT regarded the applicant’s evidence of poisoning one of the perpetrators as “fanciful and far-fetched”.  Nor was the RRT satisfied that the applicant’s evidence about the rape and suicide of his sister was true.

15. The RRT found the applicant’s evidence about becoming a police informer was “highly improbable”.  Because it did not accept that the applicant had become a police informer, it followed that the RRT also did not accept that his role as a police informer had been revealed to Naxalites by a police officer, nor that his family had been targeted by Naxalites because of his activities as an informer.  Accordingly, the RRT rejected the applicant’s claim that it had been necessary for him to live underground in order to avoid retribution at the hands of Naxalites.

16. Having rejected key elements of the applicant’s claims, the RRT then considered which of those claims that it had accepted gave rise to a well-founded fear of persecution for reasons specified in the Convention Relating to the Status of Refugees (“the Convention”).

17. The RRT considered that, because the applicant was from a Muslim farming family in Andhra Pradesh, there was a chance that Naxalites might seek money from him.  However, the RRT found that the chance the applicant would encounter such demands was remote.  On his own evidence, he had come to no harm in India.  The RRT did not accept that the applicant had been sought by the Naxalites as he had claimed.  There was no credible evidence to indicate that he would be so sought upon his return to India.  It was not the applicant’s intention to take over the family farm.  Consequently, he would not be a resident landowner in the area where Naxalites were most active.

18. The RRT accepted that there were difficult relations between Hindus and Muslims in India, manifested in harassment and abuse and outbreaks of violence.  However, the RRT accepted advice from the Department of Foreign Affairs and Trade that the Indian authorities were willing and able to stop communal violence at the earliest opportunity.  Moreover, the Indian government had taken steps to promote inter-faith understanding, thereby reducing the likelihood that communal violence would erupt.  The RRT found that communal violence between Hindus and Muslims was neither official, officially tolerated nor uncontrollable by the Indian authorities.  In short, the applicant could avail himself of the protection provided by the Indian authorities.

19. The RRT was not satisfied that the applicant’s service as president of the student’s organisation or his involvement with a Muslim political party meant that he might be a particular target for harm by Hindus.  The RRT was not satisfied, on the evidence, that the applicant’s involvement with student politics would lead local Hindus to pursue and harm him, should he return to India.

20. In the result, the RRT found that there was not a real chance that the applicant would face persecution for a Convention reason if he were to return to Andhra Pradesh.  Accordingly, the RRT found that the applicant’s fear was not well-founded.  For that reason, the RRT affirmed the decision not to grant a protection visa.

    Reasoning

21. The applicant’s written submissions contend that the RRT erred in law.  However, in substance, the applicant’s complaints relate to the adverse factual findings made by the RRT.  He says, for example, that the RRT should have found that he faces punishment on his return to India because of the “revengeful intentions of the extremist Naxalists”.

22. The role of this Court is not to review findings of fact made by the RRT.  There is nothing in the applicant’s submissions that demonstrates any error of law on the part of the RRT.  While the applicant has diligently referred to some authorities which relate to the concept of persecution for the purposes of the Convention, he has not shown that the RRT mis-stated or misapplied the relevant principles.

23. In essence, the RRT’s decision turns on its findings of fact.  It was open to the RRT to reject the key elements of the applicant’s claims.  It was also open to the RRT to conclude that those aspects of the applicant’s claims that it accepted did not provide the basis for a well-founded fear of persecution for a Convention reason.

24. The applicant has not made out a case for review of the decision of the RRT on any ground available under Part 8 of the Migration Act. Accordingly, the application must be dismissed, with costs.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated:             24 March 2000

The Applicant appeared in person.

Solicitor for the Respondent:	Ms J Maurer appeared for the Australian Government Solicitor
Date of Hearing:	1 March 2000
Date of Judgment:	1 March 2000