SZBAC v Minister for Immigration - [2004] FMCA 344

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBAC v MINISTER FOR IMMIGRATION

[2004] FMCA 344

MIGRATION – Application for review of Refugee Review Tribunal decision – whether failure to apply Refugee Convention definition of refugee – whether failure to take into account elements of the applicant’s claim.

Migration Act (1958)

Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2001) 68 ALR 407
Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547

Applicant:

SZBAC

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ1434 of 2003

Delivered on:

22 April 2004

Delivered at:

Sydney

Hearing date:

22 April 2004

Judgment of:

Barnes FM

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Australian Government Solicitors

ORDERS

That the application is dismissed.
That the Applicant pay the Respondent’s costs set in the amount of $4,250.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1434 of 2003

SZBAC

Applicant

And

MINISTER FOR IMMIGRAITON & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 17 July 2003 affirming a decision of a delegate of the respondent to refuse to grant the applicant a protection visa. The applicant, a citizen of India, arrived in Australia on 27 January 2002 and applied for the visa on 26 February 2002. It was refused on 24 July 2002 and he sought review by the Tribunal on 22 August 2002. The Tribunal held a hearing on 17 June 2003.
The applicant is of Tamil ethnicity and Muslim faith. He claimed to fear persecution for reason of his religion in India and because of political opinions imputed to him of support for Muslim extremists or separatists. He made a number of claims. He ran a business in Kashmir from 1993 and donated money to a Muslim organisation which he believed did charitable work. Because he refused to provide money to Kashmir separatist organisations his property was attacked. He subsequently lived overseas and then returned to run his business from the end of 1998. He claimed that in December 2000 there was a large bomb blast near the Parliament and that in January 2001 he was interviewed by members of the CBI security forces. They accused him of supplying money to a terrorist organisation. No action was taken against him other than a warning that he would be in trouble if he supported the organisation again. He stopped his financial support for the Muslim organisation.
He claimed that on or about 1 June 2001, after he heard a gun battle outside his home (which emerged to have been between Muslim separatists and the Indian army). He found wounded Muslim separatists at his home; he attempted to find medication for them and the Indian army took him and the separatists into custody. He gave somewhat different written and oral accounts of the detail of what occurred on that morning.
He claimed that he was interrogated and tortured by the military police, remanded in custody and charged with three charges, the most serious of which was that he had been harbouring terrorists. He was held for some 15 days and then released on bail, on condition he live in Madras and report daily to police. He said that subsequently business enemies spread false propaganda, that the media linked him with terrorist organisations and that Hindu extremists threatened him. He claimed that he was attacked and injured on a number of occasions and that his property was attacked. He claimed to fear that he would be arrested and killed and persecuted as a Muslim in India and that protection would not be available from the Hindu government.
In the Tribunal hearing the applicant claimed to have been actively involved in Muslim activities and services in India and to fear harm from the government and the police. He claimed that after the CBI warning he was followed 24 hours a day by the CBI who had also told the military police of the warning he was given. He also claimed that after his release on bail the police kept harassing him.
He claimed that in about September 2001 he had been threatened by Hindus in Tamil Naidoo as a result of a dispute in relation to a Hindu temple that encroached on his land. He said that Hindus had thrown stones through windows of his house and tried to break the door, that he had gone to demolish the Hindu temple, and that the Hindus had told him that if he touched the temple they would finish him and finish the house too. He had told them that his property should be given back, otherwise he would demolish the temple. Nothing further had happened in relation to that incident.
The Tribunal reasons for decision record that in the hearing the Tribunal put to the applicant certain inconsistencies and implausibilities in his evidence, and also the substance of independent information in relation to the justice system in India. The Tribunal also raised with the applicant the absence of any documentation to support his claims of having been charged.
At the conclusion of the hearing the applicant made a fresh claim that he would be persecuted because he had invited non Muslims to join Islam and had been harassed by the government because of this.
The Tribunal found that the applicant was not credible and rejected his substantive claims in relation to incidents said to have occurred between December 2000 and the end of 2001 and also his claim of actively seeking conversion of non-Muslims to Islam. It considered this claim to be a recent invention, unsupported by evidence to designed to try and strengthen the applicant’s claim for a protection visa.
In relation to the claim that he had been questioned by CBI officers after the December 2000 bombing because of his general popularity with villagers, the Tribunal noted that on his own evidence the applicant was not detained or mistreated. It was not satisfied that the inquiries by the CBI officers were other than routine or that what the applicant experienced on that occasion amounted to serious harm in a Convention sense.
The Tribunal found that the applicant's claim to have been arrested, tortured and charged after the incident on or about 1 June 2001 was contradictory and implausible in several respects which are detailed by the Tribunal in its reasons for decision. There were a number of inconsistencies in the claims about this incident. The Tribunal also found that the evidence about the applicant's release on bail without a further court date was unsatisfactory for reasons it gave.
The Tribunal concluded that this claim, which was the most serious incident upon which the applicant relied, was untrue and a fabrication designed to try to establish a claim for a protection visa. The Tribunal went on to say that if it were wrong in that conclusion and the incident did take place and the applicant had been arrested and charged with three criminal offences, it did not accept that the incident had any Convention nexus. It gave reasons for this conclusion. In particular, on either version given by the applicant the extremists were arrested in his home. In those circumstances the Tribunal considered it to be expected that the applicant would be arrested, charged with harbouring separatists or extremists and put to trial.
The Tribunal also considered the harm that the applicant claimed to fear arising from the incident about Hindu temple and his claimed mistreatment by Hindus. The Tribunal found that even if the applicant had been threatened with serious harm by a Hindu mob, it appeared that these threats were made only when the applicant threatened to demolish the Hindu temple. It was satisfied that the dispute was one that could be settled either by negotiation or recourse to the courts and in all the circumstances the Tribunal did not accept that the actions taken by the local Hindus could be said to be serious harm such as to amount to persecution having regard in particular to the provisions of section 91R of the Migration Act 1958.
The Tribunal concluded that with respect to past experiences of the applicant it was not satisfied that individually or cumulatively they amounted to persecution for any Convention reason.
It went on to consider whether nonetheless the applicant faced a real chance of Convention-based persecution in the foreseeable future upon his return to India. It noted that past harm is not determinative although it may be a useful indicator of the risk or nature of future harm. The Tribunal concluded that as the claim with respect to harbouring extremists had been found to be a fabrication, it was satisfied that he faced no difficulty with the authorities upon his return to India. Again it considered that if it were wrong and the applicant had been charged with offences as claimed, it was proper and appropriate that on his return to India he be put to trial. Further the dispute with the Hindus was one to be determined by negotiation or recourse to the courts. The Tribunal concluded that it was not satisfied with respect to any of the applicant's claims that there was a real chance in the foreseeable future of the applicant suffering serious harm for any Convention reason. It was not satisfied that his fears were well-founded.
In the application filed on 25 July 2003 the applicant raised no grounds for review. However, he sought, and was granted leave to file an amended application in Court in which he raised four grounds. He claimed that that he did not receive the court papers and the ‘green book’ until April 2004 and that this had made it difficult for him to file his amended application.
The green book, which is the bundle of relevant documents to which the applicant referred was filed on 28 October 2003. According to counsel for the respondent it was served on the applicant at the address provided on the front page of his application for judicial review as the address for service. This is an address which appears to be the address of a flat, and a street number, in a town in New South Wales. The address for service completed on the third page of the application has a different flat number, but the same street number and town. Hence, the applicant himself provided different addresses for service.
Apart from any difficulty in filing the amended application at an earlier time the applicant has not pointed to anything to indicate that he was prejudiced because of late receipt of the court book, or the court papers. As I indicated, the Court granted leave for him to file the amended application in Court (which he indicated had been rejected by the Registry because of the late filing). Clearly any late service of these papers, or late receipt by the applicant of these papers, does not provide a ground for review of the Refugee Review Tribunal decision. Nor, in the absence of anything to indicate prejudice, given that the amended application has been filed and is being considered, does it establish a reason for any adjournment of these proceedings. The applicant did not expressly seek an adjournment.
The applicant contended that the Tribunal committed a jurisdictional error in not accepting that the incident of June 2001 and his claimed arrest and charging had any Convention nexus. The applicant submitted that his Muslim religion and also his imputed political opinion were the reasons for his arrest and arraignment before the courts.
However, firstly, the Tribunal rejected as a fabrication the incident involving Muslim separatists or extremists and the claimed arrest and charges. Secondly, in considering if it were wrong and the incident did take place, the Tribunal properly considered and gave reasons for its conclusion that if the applicant had been arrested and subject to criminal charges there was no Convention nexus. Although not expressed in terms of the applicant being subject to a terms of law of general application, the Tribunal found that on the applicant's accounts extremists were arrested at his home. It was hence to be expected that he would be arrested and charged with harbouring separatists or extremists. Reading the Tribunal decisions fairly and as a whole (Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259) the Tribunal did considered but did not accept that the applicant’s religion or political opinion was the reason for any arrest and criminal charges.
The applicant took issue with the Tribunal findings of fact. Review of the merits of the Tribunal decision is not available in this Court. Insofar as this complaint may be seen as taking issue with the underlying rejection by the Tribunal of the credibility of the applicant, findings in relation to credibility are matters of fact for the Tribunal par excellence Re MIMA; Ex parte Durairajasingham (2001) 68 ALR 407. So long as the Tribunal's credibility findings were open to it no error is demonstrated in such conclusions, Kopalapillai v MIMA (1998) 86 FCR 547. In this instance the Tribunal gave extensive reasons based on inconsistencies and implausibilities in the applicant's evidence. Its findings were open to it for the reasons that it gives.
The applicant also submitted that the Tribunal made a jurisdictional error in holding that the attacks on him by the Hindu fundamentalists were not motivated by factors of his religion. However the Tribunal finding in relation to the attacks by the Hindu fundamentalists arising out of the encroachment of the Hindu temple on his land was that the actions taken by the Hindus in that situation were not sufficiently serious to amount to serious harm constituting persecution, having regard to section 91R of the Migration Act. Hence the motivation of the Hindus did not have to be determined.
Finally, the applicant claimed that he had been forced to leave his home due to persecution he had suffered in Kashmir and Tamil Nadu and that this was not taken into consideration by the Tribunal in arriving at its decision. The Tribunal did consider the claims that the applicant made in relation to events that he said had occurred in Kashmir and Tamil Nadu. It did not accept that the past experiences, either considered individually or cumulatively amounted to persecution for any Convention reason. In such circumstances it was not necessary for the Tribunal to address whether the applicant had been forced to leave his home because of the incidents of which he complained. The claim amounts to a disagreement with the findings of fact of the Tribunal. No jurisdictional error is established. Concerns were raised by the applicant in relation to his present situation and his lack of knowledge about the whereabouts of his wife and child in India. These concerns, while understandable, do not establish any jurisdictional error on the part of the Tribunal. As no jurisdictional error has been established, the application must be dismissed.

RECORDED : NOT TRANSCRIBED

The respondent seeks that the applicant pay the costs of these proceedings in the sum of $4,250. I consider that the unsuccessful applicant should meet the costs and that in light of the nature of this and other similar matters, the amount sought is appropriate.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 28 May 2004