SZBFA v Minister for Immigration
[2005] FMCA 138
•17 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBFA v MINISTER FOR IMMIGRATION | [2005] FMCA 138 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in India – no reviewable error found – application dismissed. |
Migration Act 1958 (Cth), s.91R
Applicant A v Minister for Immigration (1997) 190 CLR 225
Chan Yee Kin v Minister for Immigration (1989) 169 CLR 379
Minister for Immigration v Respondents S152/2003 (2004) 205 ALR 487
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
| Applicant: | SZBFA |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1611 of 2003 |
| Delivered on: | 17 February 2005 |
| Delivered at: | Sydney |
| Hearing date: | 17 February 2005 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Ms R Pepper |
| Solicitors for the Respondent: | Sparke Helmore |
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 $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1611 of 2003
| SZBFA |
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 the delegate of the Minister not to grant the applicant and his wife protection visas. Only the applicant husband is a party to the proceedings in this Court. Relevant background facts and circumstances are set out in written submissions prepared on behalf of the Minister by Ms Pepper. I adopt as background for the purposes of this judgment paragraphs 2-9 of those written submissions:
The applicant was born in India on 15 September 1964. The applicant arrived in Australia on 24 November 2001. On 10 December 2001 he lodged an application for a visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Migration Act 1958 (Cth) (“the Act”) (court book, pages 1-29).
The applicant claims persecution on the ground of religion. In brief, the applicant claims that he has suffered persecution in the past because he is a member of the minority Muslim religion. The applicant claims moreover that if he is returned to India he fears that he will suffer serious harm and may even be killed because the Hindu majority want to throw the Muslims out of India. The applicant claims that no protection is available from the Indian authorities.
The applicant’s case before the RRT was that after the 1992 riots in India in which many Muslims lost their lives and belongings, it became very difficult for the applicant and his wife. The applicant claims that during the course of these riots the applicant’s rented home was attacked by Hindu mobs and was set on fire. Further, the Hindus demanded protection money from the applicant and his wife approximately four or five times a year and threatened to beat the applicant if he did not pay.
The applicant claims that in 1998 he refused to pay the protection money and the Hindus entered his home and took his possessions. The applicant claims that he did not seek the assistance or protection of Indian authorities because they were on the side of the Hindu majority.
On 24 May 2002 the Department wrote to the applicant asking him to comment on independent country information which was adverse to his claims, namely, that the Indian government respected the right of freedom of religion and would endeavour to protect minorities against sectarian violence (court book, page 30-32). The applicant did not respond to the letter.
On 25 April 2003 the applicant’s wife returned to India.
Proceedings before the RRT
The RRT was not satisfied on the evidence before it that the applicant had experienced Convention related persecution. While the RRT accepted that the violence the applicant had witnessed during the 1992 riots had made a “genuine and lasting impression upon him” (court book, page 67 at [45]), it relied on independent country evidence, however, to find that the harm feared by the applicant lacked the necessary “official quality” to constitute persecution (court book, page 67 at [65]). Rather it found that the applicant had been a victim of random acts of violence in 1992 that there was no systematic or discriminatory conduct directed at the applicant or the wider Muslim community (court book, page 67 at [67]).
The RRT did not accept that the demands for donations made of the applicant amounted to serious harm within the meaning of s 91R of the Act (court book, page 67 at [68]). Further, the RRT relied on independent country evidence about the government in India to find that the authorities were willing and able to provide effective protection from violence to all of its citizens and would prosecute persons inciting communal violence (court book, page 68 at [69] and [70]). Accordingly, the RRT did not accept that the applicant had any more than a “remote’ chance of suffering harm upon return to India (court book, page 68 at [73]).
These proceedings commenced with an application filed on 14 August 2003. A directions hearing was conducted before Registrar Segal on 23 October 2003. The applicant attended in person assisted by a Hindi interpreter. The applicant consented to orders for the further conduct of the proceedings. Order 2 required the applicant to file and serve an amended and fully particularised application together with an affidavit in support and any evidence upon which he proposed to rely on or before 19 December 2003. The applicant did not comply with that order. He filed an amended application on 11 December 2003. However, that application is the same as the original application save for the addition of one ground. The amended application upon which the applicant relies suffers from the same vice as the original application. It contains no particulars.
In the absence of particulars it would have been open to the Court to dismiss the application for non compliance with the order made by Registrar Segal. It would have also been open to the Court to dismiss the application as disclosing no reasonable basis for the cause of action. That is because in the absence of particulars, the grounds advanced convey no meaning. Nevertheless, the Minister has, somewhat generously, permitted the application to proceed to a final hearing.
During the course of the hearing today I gave the applicant the opportunity to read Ms Pepper's written submissions with the assistance of an interpreter. I then invited the applicant to explain to me what was meant by the grounds set out in his amended application. He was unable to do so. He was also unable to respond to Ms Pepper's written submissions. The applicant simply makes the obvious point that he is afraid to return to India. His fear arises because of the risk of communal violence in his home State. The risk is particularly acute in the city of Hyderabad, from which the applicant apparently comes.
The applicant's fear was accepted as genuine by the RRT. However, the presiding member found that the applicant does not have a well founded fear of persecution by reason of that fear but is because the violence which occurs in Andhra Pradesh and in particular in Hyderabad is unpredictable, random and sporadic. In addition, the presiding member found that effective State protection is available from the Indian authorities. I see no error in the approach taken by the RRT. I agree with paragraphs 10-15 of Ms Pepper's written submissions and adopt them for the purposes of this judgment:
The usual vague ‘template’ grounds of review are pleaded by the applicant in his application. They lack particulars and absent further detail do not demonstrate any jurisdictional error on the part of the RRT. For the sake of brevity the grounds of review are not set out in these submissions.
Breach of procedural fairness
The applicant does not provide any details of how it is said that that RRT denied him natural justice. It is clear that the adverse independent country information which the RRT had before it and relied upon was put to the applicant for comment (court book, pages 30-32, 62 and 63 at [45]-[52]). In the absence of any additional particulars this ground ought to be dismissed.
Other grounds
Absent particulars as to how the RRT has said to have erred, the respondent submits that the remaining grounds of review ought also be dismissed.
The respondent submits that no error is demonstrated on the face of the RRT’s decision with respect to its findings regarding the harm the applicant claims to have suffered (see above at paragraph 8 and 9). Not every threat of harm to a person or interference with his or her rights for reasons of race, religion, nationality, membership of a particular group or political opinion constitutes being persecuted for a Convention reason: Chan Yee Kin v Minister for Immigration (1989) 169 CLR 379 at 429; Applicant A v Minister for Immigration (1997) 190 CLR 225 at 233. What is contemplated under the Convention is that there is a “real chance that the applicant will suffer some serious punishment or penalty or some significant detriment or disadvantage” if they return: Chan at 388. The RRT found that the harassment that the applicant suffered was not serious enough to amount to persecution under the Convention. The RRT’s findings in this regard were open to it on the material before it.
Moreover, the respondent submits that the RRT did not err in its contemplation of s 91R of the Act when determining whether or not the past harm the applicant experienced at the hands of the Hindu majority was serious harm that involved systematic and discriminatory conduct.
Essentially it appears that the applicant seeks to take issue with the factual findings of the RRT. To review the decision of the RRT without further particulars of the errors it is alleged the RRT has made would amount to the Court engaging in merits review, especially given that there is no evidence that the RRT did anything other than exercise its power in a bona fide way: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272.
Further, I am bound by the decision of the High Court in Minister for Immigration v Respondents S152/2003 (2004) 205 ALR 487. The decision of the High Court in that case is authority bearing directly on this case. The applicant cannot succeed in the face of that decision. There is no jurisdictional error in the decision of the RRT.
I will dismiss the application.
Ms Pepper seeks an order for costs fixed in the sum of $4,000. That is based upon an assessment of costs on a solicitor/client basis of $4,500. This was a relatively straightforward matter. The grounds advanced by the applicant, while they arguable call for some form of response, did not call for a substantial response. The amount of preparation required of the Minister was, in my view, somewhat less than average. In my view, costs in the sum of $3,000 would be adequate recompense to the Minister 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 $3,000.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 23 February 2005
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