SZDPY v Minister for Immigration
[2006] FMCA 10
•24 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDPY v MINISTER FOR IMMIGRATION | [2006] FMCA 10 |
| MIGRATION − Refugee visa − whether finding by Tribunal required applicant to modify behaviour. |
| Migration Act 1958 (Cth), s.91R |
S395/2002 v Minister for Immigration & Multicultural Affairs [2003] HCA 71
| Applicant: | SZDPY |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1524 of 2004 |
| Judgment of: | Phipps FM |
| Hearing date: | 26 July 2005 |
| Last Submission: | Nil |
| Delivered at: | Melbourne |
| Delivered on: | 24 January 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hegedus |
| Counsel for the Respondent: | Mr Hay |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The Applicant pay the Respondent’s costs fixed at $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
SYG 1524 of 2004
| SZDPY |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of India. His religion in India was Hindu. His parents are active in religious activities and are supporters of a Hindu political party. Family members are supporters of Hindu organisations.
In Australia, the applicant adopted Islam as his religion and practices it’s rituals. His application for a protection visa has been rejected. He claims he has a well grounded fear of persecution on religious grounds if he returns to India. He fears he will be persecuted by Hindus and Hindu organisations because he is a Hindu who has converted to Islam.
Chronology
The applicant arrived in Australia on 8 December 1998. On 15 March 2001 he applied for a protection visa. On 9 April 2001, a delegate of the Minister refused to grant the visa. On 8 May 2001, the applicant applied to the Refugee Review Tribunal for a review of the Delegate’s decision. On 31 March 2003, the tribunal affirmed the decision not to grant a protection visa. The applicant filed an application in the Federal Magistrates Court for review of the delegate’s decision on
24 May 2004.
The Tribunal's decision
The tribunal accepted that the applicant comes from a committed Hindu family in India and that his parents are active in religious activities and are supporters of a major Hindu party. The tribunal accepted that the applicant has family members who support what the applicant described as extremist Hindu organisations.
The Tribunal accepted that the applicant converted to Islam after his arrival in Australia and that he has adopted Islam as his religion and practices its rituals. The tribunal accepted that the applicant’s parents and other family members may be dismayed to learn that he has done so and may strongly disapprove.
The tribunal said that independent country information indicates that there is considerable tension between religions in India and many Moslems fear being caught up in communal violence. The tribunal member said that information available to it indicates that relations between religious groups are for the most part amicable. The tribunal noted that the term "protection" by no means implies that the authorities must always provide absolute guarantees against harm.
The tribunal concluded that the chance of the applicant being involved or caught up in generalised violence motivated by religious differences, and seriously harmed as a result, is remote and that this would be so all over India.
The Tribunal considered the applicant's conversion and whether this factor alters the chance that he would face serious harm because of his religion if he were to return. The tribunal referred to the applicant’s evidence that his conversion would be a matter of great concern to and disapproval by his parents, and that some of his relatives might respond violently. The tribunal accepted that the applicant's conversion would become known to his family.
The tribunal referred to information that conversions from Hinduism are opposed by the more extreme Hindu organisations, and information which indicates that the non Hindus are generally able to practise their religion. The tribunal concluded that the applicant’s parents and other relatives may disagree with his conversion, there may be arguments, they may ostracise him and they may press him to undo his conversion, but this kind of harassment did not amount to serious harm as envisaged by s.91R of the Migration Act 1958 (Cth).
The tribunal said that in relation to the applicant's fear of coming to serious harm on account of his conversion, if he felt threatened by relatives or others who know him in Delhi, it was reasonable for him to relocate. The tribunal considered that the chance that he would come to serious harm at the hands of extreme Hindus was remote because his background would not be known. The Tribunal considered that there was no more than a remote chance that the applicant's parents would reveal his whereabouts to extremist relatives who might want to harm the applicant.
The applicant’s argument
The applicant argues that the tribunal has asked itself the wrong question, or taken into account an irrelevant consideration such that there is jurisdictional error.
The applicant argues that the tribunal found that the risk of serious harm was remote because on relocation his background as a Hindu who has converted to Islam will not be known. The applicant argues that this requires him to avoid harm by acting discreetly in the practise of his religion. The applicant argues that this is an error of law as identified by the High Court in S395/2002 v Minister for Immigration & Multicultural Affairs [2003] HCA 71.
In the tribunal’s decision under consideration in S395/2002 v Minister for Immigration & Multicultural Affairs [2003] HCA 71, the applicants claimed fear of persecution because they were homosexuals living in Bangladesh. The tribunal found that they could avoid persecution by living discreetly. The High Court said that this was taking into account an irrelevant consideration such that there was jurisdictional error.
In the present case, the tribunal has not made a finding that the applicant could avoid persecution by living discreetly. The tribunal has accepted that the applicant will practise his religion openly wherever he is. What it did find is that if he did relocate the chance that he would come to serious harm at the hands of extreme Hindus was remote because they would not know of him as a Hindu person who has converted to Islam. The tribunal’s finding is not based on any change of behaviour by the applicant, particularly any change in the normal practice of his new religion.
An additional answer to the applicant’s argument is that the tribunal's finding about relocation is a secondary finding. The principal finding is that wherever the applicant is in India, whether at his former place of residence among his family, or anywhere else, he will not be at risk of persecution. The finding about relocation is based on a reference to the applicant's fear of coming to serious harm on account of his conversion. A fair reading of the tribunal's decision is that while, for the purpose of the relocation finding, it accepts that the applicant may have a subjective fear of serious harm. It is not a well founded fear because the tribunal found that the applicant could live anywhere in India without any more than a remote chance of risk of serious harm.
The applicant's argument referred to a passage in the transcript of the hearing before the tribunal where the tribunal member put to the applicant that he could move, not tell his relatives where he was and tell his parents not to tell them. The applicant argued that this showed consideration by the tribunal that the applicant could avoid persecution by relocating and modifying his behaviour.
It may be possible to interpret the tribunal's question as involving the proposition that that the applicant could modify his behaviour, but it is not the basis of the tribunal's finding in its reasons.
On 6 May 2003, the applicant lodged an application for review of the tribunal's decision with the Federal Court in the South Australian registry. On 11 December 2003, a notice of discontinuance was filed. Leave to discontinue was granted by Mansfield J. on 12 December 2003. The current proceeding was commenced in the Sydney registry of the Federal Magistrate's Court on 24 May 2004.
The first respondent argued that this amounted to Anshun estoppel. The applicant's evidence showed that he was confused about what had occurred. He had a conversation with a lawyer concerning withdrawal of the South Australian proceeding, but it is not clear that he understood why there was a proceeding in South Australia and what was involved in its withdrawal. It is not clear that he knew where the current proceeding was commenced and that it is a different proceeding to the South Australian proceeding. It is not necessary to consider the argument any further.
The first respondent argued that the application should be dismissed in any event because of delay. Since there is no substantive ground for the success of the application, it is not necessary to consider this argument.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons would for judgment of Phipps FM
Associate: Sherryn Kwong
Date: 24 January 2006
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