SZBVT v Minister for Immigration
[2005] FMCA 1658
•11 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBVT v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1658 |
| 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), ss.91R, 424A |
| Applicant A87/2003 v Minister for Immigration [2005] FCAFC 20 Carlos v Minister for Immigration [2001] FCA 1087 SZASX v Minister for Immigration [2004] FMCA 680 VAF v Minister for Immigration (2004) 206 ALR 471 |
| Applicant: | SZBVT |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2395 of 2003 |
| Judgment of: | Driver FM |
| Hearing date: | 11 November 2005 |
| Delivered at: | Sydney |
| Delivered on: | 11 November 2005 |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Ms S Kaur-Bains |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The Refugee Review Tribunal be joined as the second respondent to the proceedings.
The judicial review application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2395 of 2003
| SZBVT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”). The decision was completed on 30 September 2003 and was handed down on 28 October 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from India and had made a claim of religious persecution. I adopt as background paragraphs 1 through to 9 of written submissions prepared on behalf of the Minister by Ms Kaur‑Bains:
The applicant is a citizen of India who arrived in Australia on 1 November 1997. On 27 June 2003 he lodged an application for a protection (class XA) visa. On 29 July 2003 a delegate of the respondent refused to grant the protection visa and on 1 August 2003 the applicant applied for review to the RRT. The RRT handed down its decision on 28 October 2003 affirming the decision not to grant a protection visa[1].
[1] court book, page: 84, first paragraph
Grounds for judicial review
The applicant claims prerogative and declaratory relief on the basis that the decision of the RRT contains jurisdictional error because the RRT:
a)did not comply with the mandatory obligations contained in s.424A of the Migration Act 1958 (Cth) (“the Migration Act”). The “information” for the purposes of s.424A(1)(a) of the Act is said to be six cases referred to in the RRT’s reasons at court book, page 85, first paragraph;
b)“cited or enclosed” some partial US State Departments reports and other references in deciding the application instead of the whole reports or references.
The applicant filed and served written submissions on 17 September 2004.
RRT’s reasons
The applicant claimed:
a)he was a national of India and a Muslim;
b)he had a well-founded fear of being persecuted for reasons of religion[2];
c)during the 1992 riots in Mumbai the applicant’s father’s business was targeted by Muslim fundamentalists and destroyed, the applicant was also beaten on the head by an iron bar and on a separate occasion he was stabbed in the arm, and a distant cousin was stabbed in the heart;
d)Following the riots he continued to live in Mumbai until 1997, where he was harassed by Muslims, who would insult him, shout out and call the applicant names.
The RRT accepted the applicant was a national of India and a Muslim.[3]. The RRT also accepted that during the 1992 riots in Mumbai the applicant was seriously assaulted on two occassions, his father’s business was destroyed and a distant coustin was stabbed to death.[4]
The RRT found the riots in 1992 in Mumbai which led to the applicant’s physical injuries, his cousins murder and the destruction of his father’s business were spontaneous and sparked by a specific incident, namely the destruction of the Babri Mosque. There had been a significant time lapse since then and the applicant had not been targeted or harmed by Hindu extremists in a “similar manner” since that time.[5].
The RRT also considered the applicant’s claims that he was taunted and called names for reasons of his Islamic faith on a regular basis. The RRT ackonwledged the regular and petty acts of discrimination, such as name calling and abusive language were unpleasant and undersirable but found they did not reach the standard of persecution required by s.91R of the Migration Act.
The RRT found in light of the above the chance that the applicant would again be involved in violence motivated by religious differences and seriousy harmed as a result was remote.
The RRT concluded the applicant did not have a well-founded fear of persecution for a Convention reason. The RRT noted it was not necessary to consider the question of relocation, but concluded that given the applicant is relatively young; literate; has acquired skills in Australia; speaks Hindu, Gujarati, Marati, and English fluently and he was able to adopt to a new environment, being Australia, the RRT was satisfied it was reasonable for him to relocate to a different part of India.
[2] court book, page: 97, first paragraph.
[3] court book, page: 97:2
[4] court book, page: 97.4
[5] court book, page: 97
The applicant relies upon his amended application filed on 17 September 2004 and his written submissions filed on the same day. He also took the opportunity to make oral submissions. The applicant has three concerns with the RRT decision. The first is that he asserts the RRT breached s.424A(1) of the Migration Act. However, the only information that the applicant could point to which was not disclosed to him were some court decisions. Ms Kaur-Bains deals with this issue in paragraph 10 of her written submissions. I agree with and adopt that paragraph for the purposes of this judgment:
Grounds 1(a), (b), (c) and (d) disclose no legal error. The “information” for the purposes of s.424A(1)(a) of the Act is said to be the six cases referred to in the RRT’s reasons at court book, page: 85, first paragraph. Case law does not constitute "information" for the purposes of s424A (see VAF v Minister for Immigration (2004) 206 ALR 471 at [24] per Finn and Stone JJ, Carlos v Minister for Immigration [2001] FCA 1087 at [29] -[33] per Wilcox, Von Doussa and Finkelstein JJ; SZASX v Minister for Immigration [2004] FMCA 680 at [16]-[35] per Barnes FM). In any event, even if case law is found to constitute "information" it was not the reason or part of the reason for affirming the decision under review. The reasons or parts of the reasons for affirming the decision under review are set out at paragraphs 5 to 9 of these submissions. In respect of those reasons no requirement arose to issue a notice pursuant to s.424A(1)(a).
I also accept Ms Kaur-Bains' oral submission that the point is reinforced by the decision of the Full Federal Court in Applicant A87/2003 v Minister for Immigration [2005] FCAFC 20 at [5] and [6].
Secondly, the applicant is concerned at what he regards as the selective use of country information by the RRT. Ms Kaur-Bains deals with this issue in paragraph 11 of her written submissions. I agree with Ms Kaur-Bains that the applicant does not disclose precisely how country information was misused. In my view, the applicant's concern is not well founded.
The applicant asserted a well-founded fear of religious persecution and the RRT accepted country information pointing to religious conflict in India, including in the applicant's state of Maharashtra. It is not apparent to me that all of the country information identified by the RRT was relevant to the outcome of the case. For example, the country information included information on pages 95 and 96 of the court book about the situation in four southern Indian states that were some distance from the applicant's home.
In my view, the use of country information by the RRT was neither improper nor significantly adverse to the applicant's claims. The substance of the RRT decision was that it accepted that the applicant had suffered serious harm in 1992 and that he had suffered some unpleasant experiences since then, but that his experiences since 1992 did not amount to serious harm for the purposes of s.91R of the Migration Act. Having regard to the country information available to the RRT, it decided that the applicant's fear of persecution in the future was not well founded. I see no legal error in that finding.
The applicant's third concern with the RRT hearing relates to the presiding member's doubt about the applicant's subjective fear of persecution based upon the fact that he had been in Australia for six years before seeking protection. I accept Ms Kaur-Bains' submission that the presiding member's view was not determinative of the outcome. The presiding member made clear (court book, page 97) that notwithstanding his concern about the delay by the applicant in seeking protection, he would nevertheless consider the applicant's claims on their merits. That was done.
I see no other legal error in the decision of the RRT. There is certainly no jurisdictional error. The decision of the RRT is therefore a privative clause decision. The judicial review application must be dismissed.
As to costs, the application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $4,000. I am satisfied that that is a reasonable amount to award when assessed on a party and party basis. The applicant says that he is unable to pay as he is not permitted to work. That, however, is not a reason for the Court to refrain from making a costs order. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $4,000.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 17 November 2005
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