Bhatnagar v Minister for Immigration & Multicultural Affairs [2001] FCA 329

FEDERAL COURT OF AUSTRALIA

Bhatnagar v Minister for Immigration & Multicultural Affairs [2001] FCA 329 MIGRATION – review by Refugee Review Tribunal – whether the Tribunal failed to comply with the procedural requirements of s 430(1)(b) and (c) of the Migration Act 1958(Cth) Migration Act 1958(Cth), ss 430(1), 476(1), 476(4) Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 applied Matter No. S 116 of 2000 BHATNAGAR v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS von DOUSSA J ADELAIDE 9 MARCH 2001

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 116 OF 2000

BETWEEN: BRIJENDER SWARUP BHATNAGAR

APPLICANT

AND: MINISTER FOR IMMIGRATION

AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: von DOUSSA J

DATE OF ORDER: 9 MARCH 2001

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant to pay the respondent's costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 116 OF 2000

BETWEEN: BRIJENDER SWARUP BHATNAGAR

APPLICANT

AND: MINISTER FOR IMMIGRATION

AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: von DOUSSA J

DATE: 9 MARCH 2001

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 This is an application under s 476 of the Migration Act 1958(Cth)(the Act) for judicial review of a decision made by the Refugee Review Tribunal (the Tribunal) on 21 September 2000 which upheld an earlier decision of a delegate of the respondent to the effect that the applicant was not entitled to a protection visa on the ground that Australia did not owe to him protection obligations under the Refugee Convention as amended by the Refugee Protocol (the Refugee Convention and Refugee Protocol being terms more fully defined in s 5 of the Act). 2 The applicant, who is a citizen of India, arrived in Australia on 15 October 1998. On 20 October 1998 he lodged an application for a protection visa. On 9 December 1998 the delegate of the Minister for Immigration and Multicultural Affairs refused to grant that visa and the proceedings were then brought before the Tribunal. 3 The facts fall into small compass. For the purposes of deciding the matter, the Tribunal accepted at face value the claims of the applicant, save in one respect. The Tribunal rejected his assertion that he would suffer persecution for the reasons that he outlined if he were to return to India at the time that the decision was made by the Tribunal. 4 The facts which the Tribunal accepted were as follows. The applicant is a forty-four year old Hindu man from Delhi. He is married with three children and his family still live in Delhi. He is an engineer specialising in airconditioning and refrigeration. He has travelled extensively overseas and more recently has worked as an export consultant, and it appears that he visited Australia in 1994 and again in July and August 1998. 5 The applicant said that he left India because he was threatened by a rival group. He claimed that it all started when he bailed one of his friends out of custody. This friend was named Rakesh Shukla, who is said to be a wealthy man with land‑holdings. The applicant said that Shukla had a big property and the rival group, which threatened him, wanted it. The group were involved in a big fight with Shukla, and Shukla ended up in gaol. The applicant apparently had the necessary characteristics to be able to bail him out of gaol, and did so. 6 The applicant stated that he did not know at the time that a big rival Mafia gang was trying to get Shukla out of the way, apparently to take over his property. The applicant claimed that when the rival group came to know that he had bailed Shukla out of gaol they came after him. He claimed that he had been disturbed by them in the middle of the night before he came to Australia in one of the earlier 1998 visits. He hoped that when he returned it would have settled down. However, upon his return to India and whilst he was with his family at a picnic on 2 October 1998 some people followed him and showed him a revolver. Those people were said to be part of the rival group. 7 Fortunately, no harm came of the applicant on that occasion because it was a day of high security, being the birthday of Mahatma Gandhi. The applicant said that he thought the rival group may have been after him because they were outraged that he had bailed out Shukla and cheated them out of the property. Indeed, that was the only explanation that he offered for the activities of the rival group. In turn that was the only reason that he advanced in support of a notion that he was in any fear in India. 8 The applicant told the Tribunal that he had recently spoken to his wife and she was still receiving visits from people asking for him. 9 The Tribunal apparently asked the applicant whether he saw his claim as fitting within any of the five Convention grounds, and he stated that the conduct of those after him could have been politically motivated. The applicant said that he had thought about moving to another city and getting lost in India but he would have to sell everything in Delhi and it would disrupt his children's schooling. He stated that he would eventually return to Delhi in two or three years by which time he would have expected things to have settled down. 10 I pause to observe that the applicant's answer to the question whether he saw any of his claims fitting within the five Convention grounds was a surprising one, as he had said to the respondent in his original application that he had never had any sort of contact with any political parties. 11 One of the documents before the Tribunal was a statement filed on the applicant's behalf with the Department of Immigration and Multicultural Affairs for the consideration of the original decision‑maker. In the statement the applicant asserted that he belonged to "a particular social group as provided for in the UNHCR definition." He said that the: "… social group comprises Rakesh Shukla and his family and my family, and I, our group arises from the fear that the authorities are unable to protect us against organised criminals where the organised criminals are protected by the authorities ... As noted Rakesh belonged to a social group landowners, group, subject to persecution because of their existence when the Authorities allow order to corrupted [sic]; I am so joined by being linked to Rakesh."