SZDCT v Minister for Immigration

[2004] FMCA 957

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDCT v MINISTER FOR IMMIGRATION [2004] FMCA 957

MIGRATION – Review of RRT decision – where applicant claims to have a well founded fear of persecution for Convention reason of religion – whether Tribunal failed to take into account a relevant consideration – whether the findings and reasons of the Tribunal evidence jurisdictional error or a denial of procedural fairness.

Migration Act 1958 (Cth), s.424A
Federal Magistrates Court Rules 2001

Applicant: SZDCT

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG 866 of 2004

Delivered on: 3 December 2004

Delivered at: Sydney

Hearing date: 3 December 2004

Judgment of: Raphael FM

REPRESENTATION

For the Applicant: Applicant in Person

Counsel for the Respondent: Mr J Smith

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs set n the amount of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 866 of 2003

SZDCT

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant in this matter is a citizen of India.  He arrived in Australia on 25 June 2003.  On 5 August 2003 he lodged an application for a protection (class XA) visa with the Department of Immigration Multicultural and Indigenous Affairs.  On 6 August 2003 a delegate of the Minister refused to grant a protection visa and on 18 August 2003 the applicant applied for a review of that decision.  The applicant attended a hearing before the Tribunal on 25 November 2003 and on

   
   

   3 February 2004 the Tribunal determined to affirm the decision of the delegate.  The Tribunal handed its decision down on 25 February 2004.

2. The circumstances which led the applicant to claim that he has a well founded fear of persecution for the convention reason of religion are that he is a 28 year old Tamil Indian of the Muslim religion.  He has lived all his life in Chennai where he was employed in his father's shop.  His father's shop was situated in a mainly Hindu part of Chennai where in 1993 the Hindu Nationalist Party opened an office.  The effect of this was to place pressure upon the applicant and his father over the subsequent years.  The statement of facts contained in the Tribunal decision between [CB 55] and [CB 58] indicates a number of discriminatory actions taken by local Hindus against the applicant and his father.  One of these resulted in the applicant being detained in jail for approximately 15 days because of an altercation over the wearing of an Indian flag.  His father was required to close his shop.  The applicant told the Tribunal that his father had considered relocating his shop to another part of Chennai where more Muslim people lived but that did not occur. 

3. The Tribunal questioned the applicant about his statements and in particular about the possibility of him relocating either within Chennai or in to another state in India. The Tribunal mentioned a number of states in the south of India which from independent country information it had deduced had a policy of being far more open to members of the Muslim religion.  The applicant's response to this suggestion was that he would be found wherever he moved in India and that he was in fear for his life which was why he was required to relocate into Australia.

4. In its findings and reasons the Tribunal says at [CB 62]:

   “The Tribunal accepts that the applicant has suffered harassment from Hindu nationalists in Chennai and accepts he suffered a short period of detention because of an altercation over the Indian flag.  However, the Tribunal notes that the applicant's evidence that the area he lived in is an area of Hindu nationalism with few Muslims.  The Tribunal notes the applicant did not pursue his plan to relocate to a part of Chennai where more Muslims reside.  However, if the applicant has a subjective fear of living in Chennai or even Tamil Nadu the Tribunal finds that in the particular circumstances of the applicant it would be appropriate for him to relocate to some other city or state in India, such as those mentioned in the decision of the primary decision maker.  The Tribunal accepts the independent evidence cited above in the US State Report that:

   ‘The degree to which the BJP’s nationalist Hindu agenda was felt throughout the country with respect to religious minorities varied depending on the region.  In some states, governments made efforts to reaffirm their commitment to secularism.’”

1. The Tribunal also noted at [CB 63] the applicant had been prepared and was able to have located into Australia and so felt that any difficulties he might have in relocating within India would not be any greater.

“Given the applicant's very low profile as a Muslim who has helped other Muslims the Tribunal does not accept Hindu militants would pursue him throughout India as he claimed.”

1. The applicant proceeds in this court on an amended application filed on 24 November 2004.  He states that the Tribunal decision did not take into account a relevant consideration and particularises this in four ways.  Firstly, the Tribunal did not properly consider in assessing the chance of persecution on his return to India his membership of the Muslim minority and the fact that he was persecuted because of his religious belief.  He states that he tried to relocate in India but he failed.  It will be clear from the extracts of the Tribunal decision that I have already cited that the Tribunal certainly did consider the problems he might face on his return to India because he was a member of the Muslim religion. The Tribunal came to the view that these concerns were not objectively well founded.  In regard to the suggestion that he had already tried to relocate within India this does not appear to have been in evidence before the Tribunal and there is nothing that I can do at this stage to deal with it. 

2. The second particular deals with the applicant's failure to provide documentary evidence about his persecution and arrest.  The Tribunal accepted that he was arrested, and it also accepted that he had been harassed for reasons which he gave.  It is just that the Tribunal did not consider that this persecution would follow him throughout India.

3. The next three matters dealing with the decision of the Tribunal are not in any way particularised and appear formulaic.  However, in regard to the final one, that the Tribunal failed to consider his documentary claims, he states that the Tribunal did not provide him with adequate particulars of independent information and did not provide him with an adequate opportunity to respond to the substance of the information. 

   
   

   I cannot accept this. It seems to me firstly any information that the Tribunal used was information of a very general character concerning the situation of Muslims in India and to that extent would be exempt from any requirement under s.424A(1) by the provisions of s.424A(3).

4. There is also no evidence provided by the applicant that the Tribunal did not provide him with an ample opportunity to respond.  The Tribunal's decision appears to indicate a reasonable flow of information between the applicant and the Tribunal concerning the applicant's claims. 

5. Mr Smith, who appears on behalf of the Minister, says in his helpful written submissions that:

   “The Tribunal's decision turned upon its application of the relocation principle explained by the Full Court in Randhawa v MIEA (1994) 52 FCR 437. The result of this finding was that the applicant did not have a well founded fear of persecution or that such a fear was not the reason for which the applicant was unwilling to avail himself of the protection of the state.”

6. Although the Tribunal did not actually make a reference in its decision to the Randhawa case it is clear from a perusal of the reasons that it would have had those provisions in mind.  In the circumstances I am satisfied that the applicant has failed to indicate any jurisdictional error into which the Tribunal may have fallen and therefore the application must be dismissed.

7. I dismiss the application and I order that the applicant pay the respondent's costs which I assess in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court rules.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  10 December 2004