Ahmed v Minister for Immigration & Multicultural Affairs [2000] FCA 609

FEDERAL COURT OF AUSTRALIA

Ahmed v Minister for Immigration and Multicultural Affairs [2000] FCA 609 MOHAMMED MUZAFAR AHMED v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 95 OF 2000 MOORE J 11 MAY 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 95 OF 2000

BETWEEN: MOHAMMED MUZAFAR AHMED

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: MOORE J

DATE OF ORDER: 11 MAY 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 95 OF 2000

BETWEEN: MOHAMMED MUZAFAR AHMED

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: MOORE J

DATE: 11 MAY 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT

Introduction 1 This is an application by Mohammed Muzafar Ahmed ("the applicant") for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 1 February 2000. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") refusing to grant the applicant a protection visa. The criterion for the grant of such a visa is that the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention"). Background 2 The applicant is a citzen of India and arrived in Australia on 17 February 1999. On 15 December 1999 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs ("the Department"). On 5 January 2000 the application was refused by a delegate of the Minister, and on 7 January 2000 the applicant sought review of that decision. Both the delegate and the Tribunal considered the circumstances of the applicant and whether the applicant was a refugee. Proceedings before the Tribunal 3 The reasons for decision of the Tribunal commenced with a discussion of the relevant legislation and what is comprehended by the definition of "refugee" and by the notion of "persecution". Reference was made to the judgments of the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 and Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559. 4 The Tribunal considered the circumstances of the applicant in a section headed "Claims and Evidence". The Tribunal first noted that it had before it the applicant's protection visa application, written submissions in support of that application, written submissions in support of the application for review, and oral evidence given to the Tribunal. The essence of the applicant's case before the Tribunal was that he will be subjected to persecution if forced to return to India because of his activities as a Muslim activist in Hyderabad and because the Indian authorities suspect members of his family to be spies for Pakistan. 5 The Tribunal considered the applicant's evidence and claims in a section in its reasons titled "Findings and Reasons". 6 With regard to the applicant's claimed political activity in Hyderabad, the Tribunal accepted that he may have engaged in some such activity while at college, and that he may have been "quite famous" for his knowledge of religion. But the Tribunal did not accept that the applicant was a Muslim activist who was regularly persecuted. Nor did the Tribunal accept that the applicant's house was a centre for politically active students, or even if it was, that this fact was of importance to Indian authorities. The basis of this latter finding was that on the applicant's own evidence the police had questioned the applicant only about his relatives, not about any political activity. 7 As to the applicant's claimed mistreatment while in detention, the Tribunal did not accept that any such mistreatment resulted in the applicant spending two to three months in bed as a result of his injuries. The bases of this finding were, firstly, that the applicant first made this claim at the hearing before the Tribunal without mentioning it in his earlier written statements, and secondly, that the claim was inconsistent with the applicant's claim in his statement to the Department that he and his friends began learning self-defence techniques after his release from detention. The Tribunal then noted that the applicant was taken to court, accorded due process, represented by a solicitor and released on bail. The Tribunal found that the condition of bail requiring the applicant not to participate in any further political activities in the area, while undesirable, did not amount to persecution in the circumstances of the case. The Tribunal referred to the independent country information concerning communal tensions in Hyderabad and the 1997 Hindu-Muslim riots. The Tribunal also found that the weekly reporting condition did not amount to persecution in the circumstances of the case. The Tribunal noted that the imposition of such a condition by a court was not uncommon in Hyderabad at that time, and that there was nothing to indicate that the applicant had not been dealt with judiciously by the court. 8 The Tribunal found that the applicant does not have a well-founded fear of persecution for reasons of either political opinion, religious belief, or membership of a particular social group. Regarding political opinion, the Tribunal noted that the Indian police had not questioned the applicant about his political opinion – only about his relatives. As to religious belief, the Tribunal noted that 40% of the population of Hyderabad is Muslim, over 120 million Muslims practise their religion in India, the Indian Constitution provides for freedom of religion, the Government respects this right in practice and does not favour any religious group in its policies, and that India is a secular state, notwithstanding tensions between Hindus and Muslims. The Tribunal found there to be insufficient evidence that the applicant would be persecuted for his religion. With regard to the applicant's family, the Tribunal found that the detention and deportation of two of the applicant's relatives did not give rise to a well-founded fear of persecution. In the Tribunal's view, if the police had seriously considered the applicant and his family to be involved in terrorism, they would have charged the applicant with a more serious offence, and would have incarcerated the family members for a longer period rather than deporting them promptly. 9 The Tribunal further noted that applicant apparently had no difficult obtaining a passport in 1998 while reporting to police. Furthermore, the Tribunal noted that there was no evidence that the applicant would be treated differently on his return to India from any other person who absconds on bail. Lastly, the Tribunal found that the applicant had no claim to be a sur place refugee, having no profile in Australia that would bring him to the attention of Indian authorities.