SZBWH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1216

FEDERAL COURT OF AUSTRALIA

SZBWH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1216 SZBWH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL NSD 953 OF 2005 STONE J 31 AUGUST 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 953 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZBWH

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: STONE J

DATE OF ORDER: 31 AUGUST 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed; 2. The appellant pay the first respondent's costs in the amount of $2,100. 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 953 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZBWH

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: STONE J

DATE: 31 AUGUST 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from the decision of a Federal Magistrate made on 24 May 2005 in which his Honour dismissed an application to review a decision of the Refugee Review Tribunal ("Tribunal"). In a decision made on 30 September 2003 and handed down on 23 October 2003, the Tribunal affirmed the decision of a delegate of the first respondent, made on 9 May 2003, refusing to grant the appellant a Protection (Class XA) visa.

Background 2 The appellant, a citizen of India, arrived in Australia on 10 April 2003. On 8 May 2003, he lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs. 3 In his application for a protection visa the appellant, a Muslim, states that he was born in Thennur, Thiruchirampailli in Tamilnadu State, an area comprising a mixed Hindu and Muslim population. After completing his secondary education, the appellant commenced work in his father's jewellery store. The appellant stated that his family were 'fairly wealthy'. In 1992, because of perceived business opportunities the appellant's family relocated to Ahmedabad in Gujerat State where the appellant continued to help his father in his store. 4 However, the appellant claimed that the situation in Gujerat was 'not very good' for Muslims as Muslims were viewed with 'suspicion and hostility'. At this time, the appellant, his younger brother and his father had begun to be involved in the Tamilnadu Muslim Social Welfare Association of Ahmedabad, which was concerned with religious and social work among local Muslims and, as part of this involvement, collected funds for the building of a mosque. 5 The appellant claimed that following the Gujerat train tragedy in February 2002, on 5 March 2002 a 'gang of armed Hindu Muslim-haters' entered his father's shop and destroyed showcases, took money and attacked the appellant, his father, his younger brother and ten of his father's employees. The appellant claimed that the attackers asked them whether they were collecting money to build a mosque. He further claimed that his younger brother was stabbed to death during this attack. The appellant stated that he and his father managed to escape, after which the attackers set fire to the shop. 6 The appellant claimed that he and his father went to the police to report his brother's murder and the burning of the shop, however, the police, 'in a frenzy of anti-Muslim hate' because of the train tragedy, refused to entertain the complaint and chased them out of the police station warning them that all Muslims should leave Gujerat. The appellant claimed that after the murder of his brother the family decided to move back to Thennur, a journey that incurred significant cost and resulted in the family losing their life savings. 7 The appellant further claimed that on 15 May 2002, a group of armed men broke into their house in Thennur, identifying themselves as members of the RSS, a Hindu extremist group, and ransacked the house. According to the appellant, they accused the family of being Pakistani spies and told them they should leave the country. In particular, the appellant claimed that when beating him they were 'saying that I had been trying to build a mosque in Ahmedabad'. 8 The appellant claimed that at this point he decided to leave India and seek asylum. He further stated that re-location within India was not possible as 'Hindu extremists are far flung in all states and have my personal details'. Consequently, he paid an 'agent' who organised a visa to Australia.