SQYB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1326

FEDERAL COURT OF AUSTRALIA

SQYB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1326 SQYB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS S 579 OF 2003 MANSFIELD J 14 NOVEMBER 2003 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 579 OF 2003

BETWEEN: SQYB

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE OF ORDER: 14 NOVEMBER 2003

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay to the respondent 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 579 OF 2003

BETWEEN: SQYB

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE: 14 NOVEMBER 2003

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 This is an application to quash a decision of the Refugee Review Tribunal (the Tribunal) made on 19 May 2003 and for other prerogative relief. To succeed it is accepted that the applicant must demonstrate jurisdictional error on the part of the Tribunal. 2 The applicant is a 46 year old man who is a citizen of India and of the Muslim religion. He arrived in Australia on 5 March 2002 and lodged an application for a protection visa shortly thereafter. On 3 June 2002 a delegate of the respondent rejected that application. The Tribunal on 19 May 2003 affirmed the decision of the delegate. 3 The Tribunal's reasons record in some detail the claims of the applicant as to why he satisfied the criterion for grant of a protection visa specified in s 36(2) of the Migration Act 1958 (Cth) (the Act), namely, that he is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (the Convention). In practical terms, the inquiry was as to whether he is a refugee as defined in Art 1A(2) of the Convention. 4 It is not contended that the Tribunal misunderstood the applicant's claims or failed to address them. The Tribunal summarised the applicant's claims as being that he would be persecuted by the Indian authorities by being arrested and detained because he is a Muslim who was a member of the Student Islamic Movement in the 1970s and because of his association with 'Zahir' who is an official/treasurer of the Student Islamic Movement which has recently been labelled a terrorist organisation. 5 In support of his claims, the applicant gave evidence of various incidents of mistreatment allegedly because of his religion and his political association since the 1970s. The Tribunal addressed each of those claims. In respect of them, variously, it either rejected them or accepted them either wholly or in part, but concluded that they did not demonstrate a degree of potential harm sufficient to amount to persecution under the Convention, in particular having regard to the limitation or definition of 'persecution' in s 91R of the Act. 6 It is only in respect of one of those incidents or experiences that the present application is made. The allegation is that the Tribunal committed jurisdictional error by failing to have regard to a relevant or material fact. It is contended that the ignoring of relevant material involves jurisdictional error on the part of the Tribunal. 7 It must be said that it is not every piece of evidence which a party identifies as relevant for the purposes of a contention as a relevant fact or relevant material and which, if not adverted to in the reasons for decision of an administrative decision-maker, will demonstrate jurisdictional error on the part of the decision-maker. It is by reference to the legislation under consideration that one determines whether material is relevant or irrelevant for the purposes of determining whether an administrative decision-maker has committed jurisdictional error by having regard to facts which are irrelevant or by failing to have regard to facts or material which is relevant. See generally the discussion in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. I do not need to address that consideration further in this matter, because in any event I do not consider that the Tribunal erred in the way in which the applicant contends. 8 The particular incident about which his complaint is based is what the Tribunal called the 'fruit stall incident'. It concerns an experience of the applicant whilst he was in India during 2001. The Tribunal has, it is acknowledged, accurately described the applicant's claims in the following passage from its reasons: 'To survive in India the applicant set up a roadside fruit staff in Chennai, the Capital of Tamil Nadu. On 25 October 2001 the Hindus pray and close their shops. He stated that a few shops, including his, stayed open and a few people asked him to close his shop. He refused explaining that he is a Muslim and did not celebrate Hindu religious holidays. He stated that a few minutes later hundreds of people were throwing stones at him and stole his fruits. The police arrived but they could not control the mob. The fruit stall was looted and deliberately collapsed.' 9 As to that claim, the Tribunal expressed the following conclusions: 'The Tribunal accepts that upon his return to Tamil Nadu in September 2001 the applicant set up a fruit stall by purchasing a stall from someone else. The Tribunal accepts that the stall was in an area where there were mostly Hindu stall keepers. The Tribunal accepts that the applicant refused to close his stall in observance of a Hindu religious holiday/celebration and that as a result of his refusal his stall was attacked by Hindus. The Tribunal accepts that he complained to the police and the police informed him that he required a permit and that without a permit he was not legally entitled to have a stall in that area. The applicant claims that he was required to pay 3000 rupees but after some lengthy negotiations he only had to pay 300 rupees. The applicant's evidence was that Zahir negotiated this better deal for him and his evidence was that the matter came to an end. The Tribunal is of the view that payment of a small bribe which was able to be negotiated down is not sufficiently serious to constitute persecution.'