SZBGP v Minister for Immigration

[2005] FMCA 76

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBGP v MINISTER FOR IMMIGRATION [2005] FMCA 76

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

SAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 65
A v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 238
NAHT v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1049
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Dranichnikov [2003] HCA 26

Applicant: SZBGP

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG 1666 of 2003

Delivered on: 18 January 2005

Delivered at: Sydney

Hearing date: 18 January 2005

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Ms T. Wong

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That the application is dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1666 of 2003

SZBGP

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 11 December 2002 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa.  The applicant who is a citizen of India arrived in Australia on 18 April 2001 as the holder of a temporary business visa.  He applied for a protection visa on 17 May 2001.  The application was refused.  He sought review by the Tribunal and attended a Tribunal hearing.  The Tribunal affirmed the decision of the delegate of the respondent and on 19 August 2003 the applicant commenced these proceedings.

2. The applicant claimed to fear persecution in India on the basis that he was a Muslim and that he had been a member and financial supporter of an Islamic progressive front led by Mr Palari Baba which was said to be helping the improvement of society (the Jihad Committee).  The applicant claimed in connection with his protection visa application that Hindu fundamentalists had threatened him, requested him not to support Islamic organisations and also that he had been harassed by income tax and sales tax raids on his business.  He claimed that a Hindu organisation, Rashtriya Swayamsevak Sangh (RSS), had started to follow his progress and business activities. 

3. During the Tribunal hearing the applicant admitted that the trouble over income tax and sales tax had to do with a claimed conspiracy by his father's then business partner.  He claimed that Hindus had looted business stock being carried by him on a train on one occasion as they wished to ruin him.  He gave the Tribunal details of his claimed involvement in the Jihad Committee.  He claimed that he had been attacked on a number of occasions, although his evidence in this regard, according to the Tribunal reasons, differed from his initial account.  In 1998 the Jihad Committee was banned by the Indian government.  The applicant claimed that he burnt his membership card because of pressure from the police. 

4. The Tribunal reasons for decision, the only evidence before the court of the conduct of the Tribunal hearing, record that in the hearing the applicant confirmed that he had not been actively involved in the Jihad Committee after the end of 1997.  He claimed to fear that if he returned to India the RSS would definitely kill him. 

5. The Tribunal found the applicant's evidence was confused and sometimes inconsistent about important issues, such as the number of incidents of attack he claimed to have experienced and the extent and timing of his involvement in the Jihad Committee.  Nonetheless, the Tribunal accepted that the applicant had been a member of the Jihad Committee from 1988 and involved in activities such as fundraising, social work, protests and demonstrations and that his group came in conflict with a group of local Hindus.  However it concluded on the evidence before it, which it described, that he was no longer actively involved after the end of 1997 at the latest and more probably after his marriage in May 1996.  In particular he was not involved after the organisation was banned.  Even if it accepted his one claim in relation to a confrontation in 1998 there was no evidence that he had personally experienced anything else untoward from that time until his departure in 2000 other than threatening phone calls in 1999.  Given that he was no longer taking an active part in the Jihad Committee the Tribunal found it implausible that the RSS would have been targeting him in 2001 or at the time of the decision for activities in which he had not been engaged for several years.  It also found the fact that he was not interrogated or detained by the police at all, even after the banning of the Jihad Committee, indicated that he was not active in the organisation after that date and that he was probably not regarded as having had a significant role previously.  There was no evidence to suggest that he faced any real chance of arrest or detention or persecution by the authorities.  The Tribunal was satisfied that the tax raids and other difficulties suffered by his father's business did not amount to persecution of the applicant and did not occur for a Convention reason.  There was nothing in the circumstances of the robbery of business stock on a train in 1994 that persuaded the Tribunal that this was anything more than an opportunistic robbery or that it occurred essentially or significantly or indeed, at all, for any Convention reason. 

6. On the evidence before it the Tribunal was not satisfied that the applicant was now targeted by virtue of a high profile locally in the Jihad Committee or that he would therefore be persecuted or killed on return to India.  It was not satisfied he had been targeted for two or three years prior to leaving India, although he had been living at his normal residence and pursuing his normal business activities.  It was not satisfied that he faced a real chance of persecution on return to India. 

7. The Tribunal went on to say that to the extent that the applicant did attract any particular animosity because of his past activity, that was local and the Tribunal was not satisfied that he had any past profile outside the local area.  The Tribunal was satisfied that such local difficulties would not give rise to any difficulty or danger away from the applicant’s own district or state. 

8. The Tribunal also considered the applicant's more general claim to fear persecution as a Moslem in India.  It concluded on the basis of country information set out in its reasons for decision that the information did not demonstrate a pattern of persecution of Moslems in India or that the state was indifferent or unwilling to act. 

9. Finally the Tribunal found that to the extent the applicant faced difficulties in his own local area, it was open to him to re-locate elsewhere in India.  It noted independent evidence on the situation of Moslems in India, the existence of Moslem communities and the applicant's education, business experience and language ability.  In conclusion the Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations. 

10. The application for review filed on 19 August 2003 in this court contains a number of general and unparticularised grounds which are numbered non-consecutively (1, 2, 3, 4, 7, 8, 9).  As counsel for the respondent contended, the grounds in essence break down into three categories.  The first is a claim that the Tribunal failed to have regard to all of the applicant's claims (Ground 1).  In oral submissions the applicant clarified that he was the only person who knew the persecution he faced, that he had placed all the evidence before the Tribunal and that it had made a jurisdictional error in not paying attention to his submissions.  While it is the case that a failure to have regard to all relevant claims may amount to a jurisdictional error, SAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 65, on the material before the court it has not been established that the Tribunal failed to have regard to the applicant's claims. The applicant claimed in connection with his protection visa application to fear persecution by reason of his Moslem faith and membership of and activities in the Jihad Committee. These claims were considered in detail by the Tribunal. The applicant has not referred to of any specific claims which were not addressed by the Tribunal and no such failure is apparent on the material before the court.

11. Insofar as this claim and other grounds relied on by the applicant seek merits review the court does not have jurisdiction to engage in such an inquiry: A v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 238. The applicant claims that the Tribunal did not require his comment regarding all of his claims. He had the opportunity to and did attend a hearing at which he could address his claims and the concerns of the Tribunal. While he claimed in oral submissions that he was placed in a position where he could not vocalise or put in writing the persecution he faced, there is nothing in the material before me to support or establish such a claim. He provided written details of his claims in his protection visa application in response to a notification by the Department of information to be taken into account. He had the opportunity to put both written and oral material before the Tribunal.

12. The second category of grounds raised by the applicant are ground 2, that the decision was made in bad faith and the ground numbered 7, that the Tribunal had given a decision which was preset in the back of its mind.  No particulars of the claim of bad faith have been provided.  The only evidence before the court as to the conduct of the Tribunal hearing is the Tribunal reasons for decision.  There is nothing in this material and the other material relating to the conduct of the Tribunal review to indicate that the Tribunal did other than make an honest and genuine attempt to undertake the task required by the legislation,  NAHT v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1049 at [45] per Beaumont J. No lack of bona fides or denial of procedural fairness is established.

13. As to the claim of actual bias, as von Doussa J stated in SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] “ It would be a rare and exceptional case where actual bias can be demonstrated where the only evidence available to prove this claim is the published reasons for the decision of the Tribunal”. The mere fact of adverse findings does not itself give rise to an inference as to the state of mind of the decision-maker establish or a pre-judgment of the issues that fell for decision. Indeed in this case it is notable that the Tribunal gave no weight to a dob-in letter, but rather considered the applicant's claims on the basis put by him. There is nothing in the material before the court to establish any pre-judgment by the Tribunal.

14. Finally the applicant made claims, again without particularisation, which appear to assert that the Tribunal failed to take into account relevant considerations and took into account irrelevant considerations and, as the applicant put it, denied the evidential truth of his claim.  (Ground 3 is that the Tribunal ‘denied the evidentiary proof of my claim’; Ground 4 is that the decision ‘did not reflect the material fact of my claim’ and Ground 8 is that the Tribunal ‘mix up many facts with this decision which affected the decision’).  As I have indicated, merits review is not available in this court.  In the absence of particularisation of these claims and on the material before the court there is nothing to suggest that the Tribunal did not take into account relevant considerations or took into account irrelevant considerations.  There is no suggestion in the Tribunal decision that the Tribunal was confused about the applicant’s claims (cf Re MIMIA; Ex parte Dranichnikov [2003] HCA 26).

15. On the material before the court and the grounds raised by the applicant no jurisdictional error has been established and the application must be dismissed.

RECORDED   :   NOT TRANSCRIBED

1. The applicant has been unsuccessful.  The respondent seeks that he meet the costs of these proceedings.  There is nothing in the material before me to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent.  His lack of available funds is not a reason for not ordering costs, although it may be a matter taken into account by the respondent in determining when and how to seek to recover costs.  In light of the nature of this and other similar matters I consider that the amount of $4250 which is sought is appropriate. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date: