SZBED v Minister for Immigration
[2005] FMCA 72
•2 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBED v MINISTER FOR IMMIGRATION | [2005] FMCA 72 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in India – no jurisdictional error asserted – application dismissed. |
| Applicant: | SZBED |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1577 of 2003 |
| Delivered on: | 2 February 2005 |
| Delivered at: | Sydney |
| Hearing date: | 2 February 2005 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person
| Solicitors for the Respondent: | Ms K Gettens Blake Dawson Waldron |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1577 of 2003
| SZBED |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 30 June 2003 and handed down on 24 July 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. Relevant background facts are contained in written submissions prepared on behalf of the Minister by Ms Gettens. I adopt by way of background paragraphs 2 to 10 of those written submissions:
The applicant is a national of India (court book, page 30) who arrived in Australia on 21 February 2002 (court book, page 40). He lodged an application for a protection (class XA) visa on 19 March 2002 (court book, page 1).
The applicant's claims were set out in a statement submitted with the protection visa application (court book, pages 1-29) and were to the following effect:
a)A Muslim terrorist group called "Al Umma" killed his father because he was an active member of "Hindu Munani" (court book, page 16);
b)The Muslim group then diverted its attention to the applicant, as the only son of his father. The applicant fled for his life to Singapore. While he was away, the Muslim group burned his house down and killed his wife (court book, page 17); and
c)When the applicant returned to India to care for his children, he moved to Chennai and remarried. However, the Muslim group tracked him down, and utilising the local tensions between Muslims and Hindus, looted his business and tried to kill him (court book, page 17ff).
The application was refused by a delegate of the respondent on 14 June 2002 (court book, pages 49-54). Whilst the delegate accepted that the applicant's father may have been killed some years ago in a clash with the Al Umma, there was no evidence to suggest that this organisation caused the death of the applicant's first wife, or that it had any interest in the applicant, given that he had not taken part in any activities of the Hindu group (court book, page 53). The delegate also noted if the applicant did hold a genuine fear, he could have applied for refugee status in Malaysia or Singapore, where he had lived for a significant time (court book, page 53ff).
The applicant applied to the RRT for a review of the delegate's decision on 19 July 2002 (court book, page 55). The applicant's statement in support of his application (marked "A": court book, pages 59-63) stated that the delegate did not give adequate weight to the claims made by the applicant and claimed:
a)Hindu – Muslim clashes of a serious nature occur all over India;
b)The Muslim group Al-Umma persecutes all members of an enemy's family, and it is not unusual for hatred to run this deep and be perpetual;
c)The applicant is unable to relocate to other parts of India without any problems as each state has its own language, and English is only of limited relevance; and
d)Although the applicant could seek state protection from the Muslim group, this protection will not be effective.
On 9 April 2003 (court book, pages 68-69) the RRT invited the applicant to attend a hearing to present his claims orally. On 23 April 2003 the applicant accepted the RRT’s invitation (court book, page 70).
On 10 June 2003 the applicant gave oral evidence to the RRT. At this hearing, the RRT put its concerns to the applicant and the applicant was allowed to comment on them (court book, pages 90-96). In particular, the applicant confirmed:
a)The applicant's problems with the local Al-Umma group were due to a personal feud he had had with the local Muslim group. After the death of his father, the applicant had employed people to attack the Muslim group (and had personally attacked them himself). The Muslim group had then retaliated with attacks on his home and family (court book, pages 94-95).
b)The death of his first wife was due to a house fire that had started two houses away. As the house formally belonged to a Muslim, and others had blamed Al-Umma for the fire, the applicant blamed Al-Umma for the fire. The applicant acknowledged however that the fire could have occurred naturally or accidentally (court book, page 95).
c)Due to recent clashes with Hindus, Al-Umma leaders had been arrested and jailed, and Al-Umma had been banned by both state and national governments. However, members of the group were still active (court book, page 96).
d)The applicant did not apply for refugee status in Singapore or Malaysia because he thought "time and circumstances would lead people to forget this feud" (court book, page 96).
The RRT’s decision
The RRT accepted that the death of the applicant's father occurred during a communal clash between Muslims and Hindus (court book, page 97). However, the RRT did not accept that the applicant would also face similar persecution due to his father's activities. The RRT found that any attack or hostility against the applicant by the Muslim group in his village was not due to his father's activities, but were "essentially and significantly in retaliation for the applicant's own attacks on these individuals" (court book, page 98).
Further, the RRT found that there was no general or ongoing risk for Hindus or Hindu merchants in Chennai from Muslims, in relation to which Muslims could act with impunity or authorities would be unable or unwilling to act (court book, page 98). The RRT was satisfied that if a particular person was identified as involved with Al-Umma, they would be pursued by the Indian authorities (court book, page 97).
Finally, even if the applicant did face difficulties with certain Muslims in his home village due to the ongoing personal feud, the applicant could live elsewhere in Tamil Nadu or other parts of India, due to his tertiary education and command of English, which is an official language in India (court book, page 99). The fact the applicant lived in Singapore for almost 2 years and had business and management experience would also assist him to relocate elsewhere in Tamil Nadu or India. Therefore, the RRT concluded that the applicant did not have a well founded fear of persecution for a Convention reason.
The application before the court was filed on 11 August 2003. As Ms Gettens notes in paragraph 11 of her written submissions the application does not contain any grounds. On 16 October 2003 at a directions hearing the applicant was ordered to provide any amended application that he wished to rely on by 10 February 2004. No amended application has been filed or served.
In the absence of any asserted jurisdictional error committed by the RRT, the judicial review application is obviously defective. The jurisdiction of the Court is simply not engaged. In the circumstances, I do not understand why the Minister did not take the opportunity to have the application dismissed summarily. On the face of the application such a motion or interlocutory application by the Minister would have been impossible to resist. For whatever reason the Minister has chosen to permit the matter to await a final hearing.
I asked the applicant today whether he could point to any mistake having been made by the RRT. He responded positively that the RRT had not made any mistake. This obviously confirms that there could be no basis to his application. I agree with the applicant that no mistake was made by the RRT. Obviously, in the circumstances, the decision of the RRT is a privative clause decision and the application must be dismissed.
I do dismiss the application.
On the question of costs, I am satisfied that costs should follow the event. Ms Gettens seeks a costs order fixed in the sum of $4,000 on a party/party basis. The applicant submitted that he would accept a costs order on the basis that he could negotiate with the Minister's lawyers on the question of payment. In the circumstances of this matter, I am not satisfied that costs of $4,000 have been properly and reasonably incurred on behalf of the Minister. The application could have been dismissed summarily at any time after time expired for the filing of an amended application. It is the Minister's choice whether to take advantage of interlocutory procedures to dispose of an application which is manifestly defective. Where the Minister chooses not to take advantage of those interlocutory procedures the Minister should not assume that all costs of a final hearing will be recoverable. I am satisfied that costs of not less than $2,000 have been reasonably and properly incurred on behalf of the Minister when assessed on a party/party basis.
I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $2,000.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 4 February 2005
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