SZFBP v Minister for Immigration - [2005] FMCA 1902

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFBP v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1902

MIGRATION – RRT – Indian Muslim woman fearing religious persecution – claims disbelieved by Tribunal – findings of adequate protection and available relocation – no error found.

Migration Act 1958 (Cth), ss.91R(1)(c), 424A(3)(b), 474(1), 483A, Part 8
Judiciary Act 1903 (Cth), s.39B
Acts Interpretation Act 1901 (Cth)
Migration Litigation Reform Act 2005 (Cth)

Applicant:

SZFBP

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3404 of 2004

Judgment of:

Smith FM

Hearing date:

02 December 2005

Delivered at:

Sydney

Delivered on:

02 December 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr Cox

Solicitors for the Respondents:

Phillips Fox

ORDERS

The Tribunal be included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $3,100.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3404 of 2004

SZFBP

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 under s.483A of the Migration Act 1958 (Cth) which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal dated the 5 October 2004 and handed down on 28 October 2004. The Tribunal affirmed a decision of a delegate, refusing to grant a protection visa to the applicant.
Although s.483A has been repealed by recent legislation, it continues to confer jurisdiction in relation to the present case (see Migration Litigation Reform Act 2005 (Cth) Sch.1 cl.41, and Acts Interpretation Act 1901 (Cth) s.8). It gives the Court the same jurisdiction as the Federal Court under s.39B of the Judiciary Act 1903 (Cth), but is subject to limitations under Part 8 of the Migration Act. The limitations have the effect that I do not have power to set aside the Tribunal's decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error. I do not have power, myself, to decide whether the applicant's claims should be believed nor whether she qualifies for a Protection Visa.
The present applicant last arrived in Australia in March 2004, having previously visited Australia in 2003. On 5 May 2004 she lodged an application for a Protection Visa in which she indicated that she was a Muslim lady from the state of Gujarat in India. She described her reasons for leaving that country:
Reasons are unlimited for leaving a country where there is no peace, stability and protection of human race. Leaving a country and moving to another is not an easy but circumstances comes to such a point that you can no longer stay in your country and have to move out. Every so often, communal riots erupt in India and we being minority Muslims would suffer the most. During riots we had to run to a safer place to save our lives. Hatred towards Muslim is increasing in every parts of India and it has become unsafe for Muslim live in India. Due to these reason my husband and my son had to flee the country and came to Australia. They came to Australia in end of year 2002. After they left India I and my daughter age 22 were living alone in India. We were constantly living in fear. We were target of harassment and physical abuse. Finally we also left India and came to Australia in March 2003. But my daughter who was engaged to USA green card holder wanted come to India to get married to my daughter. So I and my daughter went back to India in April 2003. My daughter got married in Oct 2003 and she applied for migration to USA on spouse ground. We were waiting for her visa clearance, but once again situation became same as before. In building where I live is surrounded by slum dweller. They are all Hindus. It has become impossible to live normal life. In last one year twice I was brutally attacked by Hindus and was hospitalized for weeks. Every now and then they threw stones at my house in month of Dec 2003 they set fire to my house by throwing burning object thru window. Most of our belonging we lost in fire. We all got very scared and decided to leave country as soon as possible. We could not wait for my daughter’s USA visa. By the grace of God my daughter has got interview call from USA embassy so she is going back to India on 10^th of May 2004
A delegate refused the application on the 18 May 2004. The delegate thought that independent country information indicated that the authorities were generally willing and able to prosecute and punish perpetrators of criminal acts motivated by religious hatred, and that adequate state protection would be available to the applicant against religiously motivated attacks.
The applicant sought review by the Refugee Review Tribunal on

13 June 2004 and was assisted by an agent who she authorised to act on her behalf. Her application did not put forward further supportive material, but said “please refer to my application with DIMIA (File no CLF 2004/26553) and reconsider my application”. She thereby “gave” her previous statements to the Tribunal for the purposes of s.424A(3)(b).
The applicant attended a hearing held by the Tribunal on the

28 September 2004. A transcript of what happened at the hearing is not in evidence, but the Tribunal gives a description in its statement of reasons.
According to the Tribunal, the applicant gave rather vague evidence of her house having been stoned, and that she and her Muslim neighbours were intimidated and harassed in a neighbourhood in Hyderabad where she lived. She suggested that she had moved house, but had remained in the same neighbourhood. Under questioning by the Tribunal in relation to the more serious claims contained in her visa application, the applicant altered her evidence to adopt what was said in her application.
The Tribunal said that it discussed evidence that Muslims make up some 40 per cent of the population of Hyderabad and that authorities attempt to put an end to communal violence if it occurs. The Tribunal said that it also discussed with the applicant that Indians were free to relocate within India. The applicant responded that she felt that she would face problems even if she moved to a Muslim neighbourhood.
The Tribunal set out country information from a United States State Department 2003 Country Report concerning India, and in particular how the Indian authorities deal with tensions between religious communities.
Under the heading; "Findings and Reasons" the Tribunal said that it had found the applicant's evidence at the hearing to be unconvincing. It said:
The Tribunal finds that the applicant's inability to provide oral evidence consistent with her written claims to be evidence that the written claims were fabrications designed to assist her application for a Protection Visa and the Tribunal does not accept them. The fact that the applicant was prepared to change her oral evidence when confronted by the discongruity between her oral evidence and her written claims, to be evidence that the oral evidence presented by the applicant cannot be believed.
In the light of the applicant's inability to provide consistent evidence at the hearing, the Tribunal does not believe the applicant's written claim of her house having been torched and that she had to be hospitalised, or her oral evidence that she and her home in Hyderabad were stoned and she was injured.
The Tribunal accepted that Muslims in general may feel, on occasion, intimidated as a religious minority, but considered that independent evidence showed that the state government had “shown itself to be ready to oppose, and if necessary, quell, any religious conflict”.
It also made a finding that any harm she would suffer in religious conflict would be “a result of random acts of violence perpetrated at times of heightened ethnic tension”. I take that finding to be a reference to the requirement of the Convention definition as read with s.91R(1)(c) that ‘persecution involves systematic and discriminatory conduct’.
The Tribunal also gave a third reason for affirming the delegate's decision, which was that:
If the applicant prefers not to live in Hyderabad, she could relocate to an area of India where inter-religious conflict is rare.
The Tribunal concluded:
In the light of these findings, the Tribunal finds that there is not a real chance the applicant might face persecution in the foreseeable future for her religion, or for any other Convention reason. Therefore, the Tribunal finds her fear is not well founded.
I have considered the reasoning of the Tribunal and am unable to find jurisdictional error affecting its decision.
The applicant commenced her present proceeding on 22 November 2004. Her original application makes general assertions, without particulars, that the Tribunal decision was incorrect. She was given the opportunity to obtain legal advice under the Free Advice Scheme.
Her amended application claims, in paragraphs (a) and (b) that the Tribunal did not consider the particular history of the applicant, and did not have proper regard to her circumstances. There is no substance to these contentions since, as I have described, the Tribunal did consider and make rulings upon her claimed history.
Paragraph (c) claims that there was a breach of the rules of natural justice, but no particulars are given and I am unable to give that contention any content.
Paragraph (d) claims that there was no evidence or other material to justify the making of the decision. However, in my opinion, the Tribunal's decision was open to it on the evidence before it.
The remaining paragraphs of the amended application suggest that the decision was "otherwise" contrary to law and that more grounds of review would be submitted after seeking legal advice. However, the applicant has not filed a written submission, nor made any other submissions raising any other grounds of review.
I have not, myself, identified any error made by the Tribunal that amounts to a jurisdictional error. The Tribunal's decision is therefore a privative clause decision for which relief is barred under s.474(1). I must therefore dismiss the application.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 22 December 2005