SZATT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1586

FEDERAL COURT OF AUSTRALIA

SZATT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1586 SZATT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 1379 of 2004 SACKVILLE J SYDNEY 3 DECEMBER 2004

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1379 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN: SZATT

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SACKVILLE J

DATE OF ORDER: 3 DECEMBER 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 1379 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN: SZATT

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SACKVILLE J

DATE: 3 DECEMBER 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a ex tempore judgment of a Federal Magistrate delivered on 2 September 2004 ([2004] FMCA 639). His Honour dismissed the appellant's application for review of the decision handed down by the Refugee Review Tribunal ('RRT') on 21 May 2003. The RRT had affirmed a decision of the delegate of the respondent ('Minister') refusing the appellant a protection visa. 2 The appellant was unrepresented at the hearing before the Magistrate. His Honour, however, identified four grounds relied on by the appellant. He considered that none of the grounds had been made out. His Honour observed that the RRT's reasons for decision were 'well-argued and thorough'. In the absence of any jurisdictional error, he dismissed the application. 3 The appellant is a citizen of India, born in 1964 in Tamil Nadu. He arrived in Australia on 26 October 2001 on a temporary business visa. One month later he lodged an application for a protection (class XA) visa. 4 The appellant claimed to have a well-founded fear of persecution in India by reason of his Muslim religion. He supplied a two page statement in support of his application for a protection visa. He claimed that: * during his secondary schooling he had joined the Tamil Nadu Religious Association ('TARA') which, among other things, preached religious tolerance; * members of other political organisations, including the Hindu Front and Vishva Hindu Parisad, planned to crush TARA and to that end instigated rioting between Hindus and Muslims in Tamil Nadu; * during the riot, the appellant's home was ransacked and his shop was demolished, while his father was seriously injured, suffering a broken leg; * the appellant's brother was arrested and the police issued an arrest warrant for the appellant; * the appellant feared that Hindus planned to kill him and for that reason he went into hiding; and * the appellant was unfairly blamed for the death of a Hindu man, causing his parents to plead with him to leave India. 5 The appellant did not submit any documents in support of his application. On 1 February 2002, the Minister's delegate wrote to the appellant asking for his comments on a number of matters relevant to the question of effective state protection in India. The appellant responded on 27 February 2002 with a handwritten letter that asserted that Muslims in India could not rely on protection from the authorities against harm inflicted by Hindus. On 21 May 2002, the delegate refused the application. 6 On 19 June 2002, the appellant lodged an application with the RRT for review of the delegate's decision. The application to the RRT stated that the appellant would 'submit any additional information as soon as possible'. In fact no further documents were submitted to the RRT. 7 On 13 February 2003, the RRT advised the appellant that it was not able to make a favourable decision on the information he had provided, and invited him to attend a hearing on 11 April 2003. That hearing was subsequently rescheduled to 16 April 2003. The appellant attended the hearing and gave evidence. 8 In the course of his evidence, the appellant stated that he and his friends had attacked a low caste Hindu colony after Hindus had burned Muslim houses and shops in the appellant's home town. The appellant said that the police had tried to arrest the Muslims who had carried out these attacks, but he had eluded them. He claimed that he could not return home because the Hindu low caste people were looking for him with weapons and sticks and wanted to kill him. He claimed that if he returned to Tamil Nadu the Hindus would kill him and the police would fabricate evidence against him. 9 The RRT considered that the evidence before it strongly indicated that the low caste Hindus were motivated by desire for revenge for the arson carried out by the appellant and his friends. The RRT noted that the appellant's own evidence was that it was the low caste Hindus who came looking for him and who threatened him. The appellant had accepted that there had not been any trouble in his village before these events, despite the close proximity of Hindus and Muslims. The RRT found that the Hindus were seeking revenge against the appellant because he was the instigator of the violence. They had not retaliated indiscriminately against Muslims in the area, nor even against his father when they came looking for the appellant. Accordingly, the RRT found that the essential and significant reason for the harm the appellant feared from the Hindus was the desire to take revenge for his actions against them and not for a Convention reason. 10 The RRT went on to consider whether there was adequate State protection available to the appellant were he to be threatened with serious harm from private individuals. The RRT considered that the independent evidence was inconsistent with the appellant's claim that the authorities would not protect Muslims against Hindus. According to the RRT, the judicial system in India is independent of government and there are agencies that monitor the human rights situation in the States. The RRT found that if the appellant felt threatened by the low caste Hindus, or by Hindu extremists, he could access adequate State protection. The RRT further found that if the appellant is unwilling to avail himself of the protection of the State authorities, his unwillingness was not because they would fail to protect him, but because he had committed a criminal offence. 11 The RRT rejected the appellant's claim that if he returned to Tamil Nadu, the police would arrest him and fabricate evidence against him. The reason for the police looking for the appellant was because he had committed the criminal offence of arson. The RRT pointed out that people fleeing prosecution or punishment for a criminal offence are not, without more, refugees. There was no evidence that the criminal laws had been selectively enforced against Muslims. Indeed, the appellant's own evidence was that Tamil Nadu had been peaceful despite religious tensions in other States and the State Government was moderate and supported minority groups. The RRT found that the appellant was simply fleeing prosecution under a law of general application and that he had not been the subject of discriminatory or selective enforcement of the laws. 12 For these reasons, the RRT was not satisfied that the appellant was a person to whom Australia had protection obligations under the Refugees Convention. 13 On the application for judicial review to the Magistrates Court, the appellant claimed that he had been told by the RRT that there was no need to produce certain evidence. However, this claim was made very late in the proceedings and was not supported either by an affidavit or any other evidence. Since there was no reference in the RRT's reasons to any attempt to provide further evidence, the Magistrate considered that the appellant had failed to establish this ground. The remaining grounds were not particularised and gave rise to no jurisdictional error on the part of the RRT. Accordingly, the application was dismissed. 14 The notice of appeal is in a familiar form. It does not identify any specific ground and, indeed, does not appear to relate to the circumstances of this particular case. The appellant filed no written submissions. In his brief oral submission he said only that a more sympathetic government was now in office in India and that if a little more time passed there would be no problem for him in that country. 15 Despite the absence of any submissions on behalf of the appellant, I have given consideration to whether the RRT's decisions is consistent with the decision of the High Court in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487. In that case, the High Court considered the circumstances in which a person claiming to fear persecution on a Convention ground can rely on a failure of the authorities to afford protection against harm inflicted by private individuals. It appears that the Magistrate was not referred to the High Court's decision. 16 The joint judgment (Gleeson CJ, Hayne and Heydon JJ) accepted that there may be circumstances in which the failure of the authorities in a particular country to protect the lives and safety of its citizens may give rise to a well-founded fear of persecution for a Convention reason: see at 494-495 [26]. However, their Honours pointed out that the RRT is not required to consider whether the authorities can guarantee the safety of the putative refugee. The question is whether the relevant authorities are unable or unwilling to provide citizens the level of protection which they are entitled to expect according to international standards. As their Honours pointed out (at 495 [28]): 'A person living inside or outside his or her country of nationality may have a well-founded fear of harm. The fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify unwillingness to seek their protection. For example, an Australian court that issues an apprehended violence order is rarely, if ever, in a position to guarantee its effectiveness. A person who obtains such an order may yet have a well-founded fear that an order will be disobeyed. Paradoxically, fear of certain kinds of harm from other citizens can only be removed completely in a highly repressive society, and then it is likely to be replaced by fear of harm from the state.' 17 The approach taken by the RRT in the present case is consistent with the principles articulated in Minister v Respondents S152/2003. The RRT expressly found hat the appellant was able to access adequate State protection in Tamil Nadu and that his unwillingness to do so flowed from his desire to avoid apprehension for a criminal offence. Indeed, the appellant faced a further hurdle, namely that any fears he may have had did not relate to harm that might be inflicted by reason of his religion. His claimed fear, so the RRT found, related to harm that might be inflicted by people taking revenge for the appellant's own criminal conduct. 18 I can see no other basis for concluding that the Magistrate erred in dismissing the application for judicial review. His Honour correctly held that it was open to the RRT to make the factual findings that it did. Those findings were inconsistent with the appellant's claim to have a well-founded fear of persecution for a Convention reason. 19 The appeal must be dismissed, with costs.