VMOS v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1076

FEDERAL COURT OF AUSTRALIA

VMOS v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1076 VMOS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V 82 of 2003 RYAN J 9 OCTOBER 2003 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 82 of 2003

BETWEEN: VMOS

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

JUDGE: RYAN J

DATE OF ORDER: 9 OCTOBER 2003

WHERE MADE: MELBOURNE

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 82 of 2003

BETWEEN: VMOS

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

JUDGE: RYAN J

DATE: 9 OCTOBER 2003

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The applicant is an Indian citizen now aged 28 who arrived in Australia on 12 March 2000 on a student visa. On 21 June 2002 he applied for a protection visa which was refused by a delegate of the Minister on 29 August 2002. The applicant applied to the Refugee Review Tribunal ("the Tribunal") for a review of that refusal but, on 31 January 2003, the Tribunal rejected that application and affirmed the decision not to grant a protection visa. The applicant has applied to this Court under s 39B of the Judiciary Act 1903 (Cth) and s 475A of the Migration Act 1958 (Cth) for a review of the Tribunal's decision.

The factual background 2 The applicant is a Hindu graduate from Osmania University who formerly lived in Andhra Pradesh. He claimed that in 2001, while he was in Australia, his family property was "captured" by the Naxalites who also kidnapped and tortured his younger brother. He claimed that the local police and some politicians were in league with the Naxalites and no protection was afforded to their victims. The applicant gave evidence to the Tribunal which it summarised as follows in its reasons for decision; 'The applicant said that his family's property had all been sold; the Naxalites had come and directed his father to sell it to particular individuals at a very low price. He said that the Naxalites were all around the applicant's town. The applicant's parents did not report what occurred to the police because to do so would lead the Naxalites to kill someone. I asked the applicant about the kidnapping of his younger sibling and he said that the Naxalites had taken his younger sibling and asked the applicant's father to send assistance. The applicant said that this had happened about a month after he came to Australia but he had not learned of it for about a year after then. His sibling had been kept for three or four days but was released and went on with his life. The applicant said that his father had been kidnapped about three months before the applicant had come to Australia: the Naxalites had taken him and kept him until they got what it was they wanted. This had happened on two further occasions. I asked the applicant about whether these kidnappings had been reported to the police and he said that his parents had done so but that there were informers at the police. I asked the applicant about his claim that false charges had been laid against his family and he said that the police wanted information from his parents. The applicant's family's experiences with the Naxalites and the implications this would have for the applicant upon return has two elements. First, he fears that there will be no assets or money in his family from which he could establish himself and start a business. Second, he fears that the Naxalites may learn that he has returned from abroad, think that he might have money and come to harm him. The applicant states as well that he is from a Muslim area and fears that he may be harmed because of tensions which exist between Muslims and Hindus. He states that Muslims want Hindus like the applicant and his family to leave the area. As well, Hindu groups can force young people to join them and take part in violent activity. He states it is compulsory to join them and to fight Muslims.' 3 The applicant recounted to the Tribunal episodes of animosity between Hindus and Muslims in his region which had intensified in the early 1990's after the demolition of the Babri mosque. He claimed to have been beaten and harassed in a couple of those episodes and told that, if he returned to the area, he would be killed. His evidence on this aspect as recounted by the Tribunal continued; 'The applicant said that a relative was a local leader of the BJP who tried to gather Hindus together to fight against Muslims. The applicant felt obliged to do as his relative said and would be obliged to do so if he were to return. I said to the applicant that it seemed to me that as an educated adult he could resist the pressure of his relative. The applicant said that he would have to follow his relative and that he had to show his relative respect although he had managed to avoid getting involved with his relative's fighting when he had lived there. He said that he did this by hiding when his relative came to the house. The applicant suffered no adverse consequences for avoiding getting involved as he said his relative wanted. The applicant said that if his family were harmed by Muslims then he would have to take part in retaliatory action.' 4 Other fears which the applicant instanced to the Tribunal were that Andhra Pradesh might be broken up and his family, who were successful new arrivals, displaced and that friends who had lent him money in Australia might carry out threats to have him killed in India if he did not repay the money. When the Tribunal questioned whether the applicant could, on his return to India, live away from his home town as his younger sibling appeared to be doing, the applicant made these responses, as noted by the Tribunal; 'The applicant said that his younger sibling had a good degree. I asked the applicant why he could not live in another large city in the state and suggested Hyderabad. He said that there was no-one there for him and that there was nothing he could do there. The applicant said that he would not have peace of mind in India, that human life was not valued and it was dangerous there.'