SZBZF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1551

FEDERAL COURT OF AUSTRALIA

SZBZF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1551 SZBZF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 1496 of 2004 SACKVILLE J SYDNEY 30 NOVEMBER 2004

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1496 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN: SZBZF

APPELLANT

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SACKVILLE J

DATE OF ORDER: 30 NOVEMBER 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant 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 NSD 1496 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN: SZBZF

APPELLANT

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SACKVILLE J

DATE: 30 NOVEMBER 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of a Federal Magistrate ([2004] FMCA 697) dismissing an application under s 39B of the Judiciary Act 1903 (Cth) for review of a decision of the Refugee Review Tribunal ('RRT') handed down on 28 October 2003. The RRT affirmed a decision of a delegate of the respondent ('the Minister') to refuse to grant the appellant a protection visa. 2 The appellant is a citizen of India. He arrived in Australia on 31 December 2002. On 23 January 2003, the appellant lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 28 February 2003, a delegate of the Minister refused to grant the protection visa. 3 On 20 March 2003, the appellant applied to the RRT for review of the delegate's decision. On 27 August 2003, the RRT conducted a hearing at which the appellant attended and gave oral evidence with the assistance of a Hindi interpreter. 4 As I have noted, the RRT's decision was handed down on 28 October 2003. The appellant then filed an application for judicial review. The learned Magistrate delivered an ex tempore judgment on 29 September 2004 dismissing the application. 5 The appellant made rather brief written submissions in support of his application to the Department for a protection visa. These were not substantially amplified in the application to the RRT. The RRT interpreted the application to it as claiming that the appellant had a well-founded fear of persecution in India by reason of his Muslim religion and also by reason of his political activity on behalf of the Samajwadi (Socialist) Party ('SP'). According to the appellant, the SP was the opposition to the Hindi nationalist Shiv Sena Party ('SSP'). The appellant claimed to be a 'social worker' for the SP, and said that he had been involved in local political protests. He also made claims that he had suffered mistreatment on particular occasions by reason of his political activities. 6 The RRT made the following findings: 1. The RRT noted that the appellant conceded at the hearing that he had not personally suffered harm in the past as the result of any general discrimination against Muslims in India. Accordingly, he did not persist with his claim of persecution on this ground and the RRT found that he did not have a well-founded fear of persecution by reason of his Muslim religion. 2. The RRT accepted, as the appellant had claimed, that he had been detained for 24 hours following a cricket match in December 2001. The appellant had suggested that the police were acting in association with the SSP in attempting to blame one of the teams for the violence, since that team was perceived to be associated with the SP. However, the RRT found on the evidence before it that the appellant was detained in order to investigate the cause of the brawl and that this was done in accordance with the normal administration of Indian law. It rejected the appellant's claim that the police had acted in a discriminatory manner in association with the SSP. The RRT took into account that the appellant had failed to mention this period of detention in either his original application or his application for review. 3. The RRT rejected the appellant's claim, made at the end of the hearing, that he had been attacked in October 2002 by three men acting on behalf of the SSP. The appellant had given a variety of inconsistent explanations for failing to make this claim at an earlier stage. The RRT considered that his evidence on this issue was unreliable for this and a number of other reasons. 4. The RRT accepted the appellant's claim that his uncle had been taken from his (the appellant's) house and that his whereabouts were still unknown. The RRT acknowledged that this was a source of consternation for the appellant and his family. However, the RRT was not satisfied that the police had been involved in the 'kidnapping' of the appellant's uncle. It also rejected the appellant's claim of on-going police harassment as inconsistent with his willingness to approach the police for assistance in respect of other matters. Accordingly, while the RRT found that the appellant might have mistrusted the local police, his approaches to them indicated that he did not have a subjective or well-founded fear of persecution stemming from police actions. 5. The RRT rejected the appellant's claim that his uncle's disappearance was evidence of the SSP's pursuit of him for political reasons. The RRT also rejected the appellant's claim that other events in India demonstrated that he was at risk. It found that during the period from March 2002 (when the appellant returned to India from a business trip to south east Asia) until his departure for Australia in December 2002, action by the SSP against him was confined to some malicious telephone calls. The RRT was not satisfied that these phone calls, which had not led to any 'consequential effects', amounted to serious harm for the purposes of the Convention relating to the Status of Refugees. 6. The RRT accepted that local political pressures, including the malicious phone calls, created some apprehension on the part of the appellant, prompting him to concentrate on his business rather than political affairs. However, the RRT found that none of the incidents, including the continued absence of the appellant's uncle, represented an ongoing threat to the appellant. Accordingly, the RRT found the appellant did not have a genuine and well-founded fear of persecution. 7. The RRT found that, in any event, it would be reasonable in all the circumstances, having regard to the appellant's age, business experience and command of the Hindi language, to expect him to return to the Muslim dominated area of Mumbai, where his family had moved in 2002. Alternatively, it was reasonable for him to locate elsewhere in India should he nonetheless be apprehensive about his safety.