Federal Court upholds RRT's rejection of protection visa claim

OUTCOME: Dismissed

FEDERAL COURT OF AUSTRALIA

[APPELLANT] v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 820 [APPELLANT] v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 518 OF 2003 SACKVILLE J [APPELLANT] 29 JULY 2003

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 518 OF 2003

BETWEEN: [APPELLANT]

APPLICANT

AND: [APPELLANT] FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

[APPELLANT] OF ORDER: 29 JULY 2003

[APPELLANT]

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant 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 N 518 OF 2003

[APPELLANT]

APPLICANT

RESPONDENT

JUDGE: SACKVILLE J

DATE: 29 JULY 2003

PLACE: [APPELLANT] FOR

JUDGMENT 1 This is an application under s 39B of the Judiciary Act 1903 (Cth) for relief in respect of a decision of the Refugee Review Tribunal ("[NAME]") handed down on 22 April 2003. [NAME] affirmed a decision of a delegate of the respondent ("the Minister") to refuse to grant the applicant a protection visa. 2 The applicant has appeared unrepresented. The application filed in this Court does not identify any grounds of review but simply asks for "review" of [NAME]'s decision. The applicant has not made any significant oral submissions to the Court.

background 3 The applicant is a citizen of India. He is a Muslim from Hyderabad and was born in 1957. His family resides in India. 4 The applicant arrived in Australia on 14 January 2002. On 22 January 2002 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (Cth) ("the Act"). On 10 May 2002, a delegate of the respondent ("the Minister") refused to grant the applicant a protection visa. On 4 June 2002 the applicant applied to [NAME] for review of the delegate's decision, and on 31 March 2003 [NAME] affirmed that decision. 5 In a written statement in support of his application for a protection visa, the applicant claimed to have a well founded fear of persecution, if he were to return to India, as a result of his political and religious opinions. The applicant claimed to have joined the [NAME] in 1986 as a supporter, and later as a full member. He said that he had become a public figure within the party. The applicant stated that after the destruction of the Babri Mosque by [NAME], relations between the majority and Muslim minorities in India became so strained that it was difficult to carry on his business. He said that his life was threatened, and that he received "no satisfactory response" on reporting this to the police. He also said that his shop had been looted twice, and that while he made many reports to the authorities, he was not given protection. 6 The applicant stated that his "sole sin was that [he] was from a party which is not tolerable [sic] by the majorities of the Hindu population". He stated that Muslims suffer discrimination in educational institutions and in many other respects. He also claimed to have been refused protection after being labelled a Pakistani ISI agent, and was told that he would be involved in cases "in which there is no bail". He claimed that the Indian authorities have "black laws" for Muslims, and that there have been cases of Muslims being arrested and kept in jail without trial for many years. 7 On 26 March 2002, a delegate of the Minister wrote to the applicant (with a copy to his agent) as follows: "The claims you have advanced in support of your Protection Visa application are vague, lack details, credibility and would not amount to serious harm … for a Convention reason. Furthermore you have not provided any evidence to support your claims of reporting the described incidents to the authorities in India". The letter also cited passages from country information on India, and commented on the fact that the applicant had left India using a passport issued in his own name nearly three months after the grant of his visitor's visa and had only applied for a protection visa on the day his visitor's visa was due to expire. The letter invited the applicant to comment on the adverse material raised. The applicant did not respond to this invitation and on 10 May 2002 the delegate made his decision refusing to grant the applicant a protection visa. 8 In his application to [NAME], the applicant did not explain why he considered himself to be a refugee, but stated that written submissions would follow. The applicant signed the application himself, and gave his home and postal address (which were the same). He also nominated his migration agent as his "authorised [NAME]". 9 On 8 January 2003, [NAME] wrote to the applicant advising that it had considered all the information available to it relating to his application, but was unable to make a favourable decision on that information alone. The applicant was invited to give oral evidence and present arguments before [NAME]. The applicant was also advised that if he did not attend the hearing and a postponement had not been granted, [NAME] would assume that he did not want to come to a hearing and that a decision could then be made without further notice. This letter was sent by registered post to the applicant at his postal address, and also to the address of his authorised [NAME]. There is no evidence of either letter being returned to [NAME]. 10 The applicant did not attend the hearing scheduled for him, and neither he nor his authorised [NAME] contacted the Tribunal. No written submissions were made on his behalf to [NAME]. [NAME] proceeded to determine the matter on the evidence before it.

[NAME]'S

REASONS 11 [NAME] noted that the applicant had not attended the scheduled hearing and that neither he nor his authorised representative had contacted [NAME]. 12 [NAME] observed that the applicant had provided only vague details in support of his claim and that there was nothing to support his claims other than his "unsubstantiated and unclear assertions." [NAME] also considered that there were insufficient particulars provided by the applicant on such matters as whether he had been involved in protests arising out of the destruction of the Babri Mosque, the nature and extent of the alleged boycott of his business, the nature and extent of alleged threats on his life, and the identity and motivation of those who were said to have looted his business. [NAME] also commented on the applicant's failure to respond to the invitations extended to him. 13 [NAME] noted that country information indicated that India's Constitution provides for secular government and the protection of religious freedom and that these ideals are generally respected in practice. Moreover, the Muslim population constitutes some 12.7% of India's total population and is India's largest minority. Nonetheless, [NAME] recognised that Hyderabad has a history of communal sensitivity. However, it did not consider that any violence was systematically organised or institutionalised in any way. Rather, it was the product of unpredictable frictions over a range of issues. Moreover, [NAME] found that where communal violence occurs, the Indian authorities seek to end it at the earliest opportunity. 14 [NAME] accepted the country information. It also noted that the term "protection" by no means implies that the authorities must provide absolute guarantees against harm. 15 Having regard to the country information and the unsupported nature of the applicant's claims, [NAME] was not satisfied that the applicant had experienced persecution for a Convention reason. Nor could it be satisfied on the basis of the evidence that the applicant faced a real chance of persecution should be return to India at any time in the foreseeable future. It followed that [NAME] could not be satisfied that the applicant had a well-founded fear of persecution for a Convention reason.

reasoning 16 The applicant has not specified any grounds for review in the application filed with this Court. The applicant chose not to respond to the numerous opportunities provided for him to give evidence or make submissions to [NAME]. He has not put forward any arguments in support of his application for relief in this court beyond asserting that he had left everything to his migration agent. There is no evidence to support that assertion. In any event the material before me indicates that the tribunal complied with its statutory obligations. 17 Section 425 of the Actprovides that [NAME] must invite the applicant to appear to give evidence and present arguments relating to the issues arising in relation to the decision under review. Section 425A provides that if the applicant is invited to appear before [NAME], [NAME] must give notice of the day on which, and the time and place at which the applicant is scheduled to appear. Where the applicant is not in detention, the notice must be given to the applicant in accordance with one of the methods specified in s 441A. 18 Section 441A(4) provides for dispatch by prepaid post or by other prepaid means in the following terms: "(4) Another method consists of a member, the Registrar or an officer of the Tribunal, dating the document, and then dispatching it: (a) within 3 working days (in the place of dispatch) of the date of the document; and (b) by prepaid post or by other prepaid means; and (c) to: (i) the last address for service provided to the Tribunal by the [NAME] in connection with the review; or (ii) the last residential or business address provided to the Tribunal by the [NAME] in connection with the review." 19 [NAME] was entitled to proceed as it did, and indeed was expressly authorised to do so by s 426A of the Migration Act, which provides that where the applicant is invited under s 425 to appear before the Tribunal, and does not appear before the Tribunal on the scheduled day, the Tribunal may "make a decision on the review without taking any further action to allow or enable the applicant to appear before it." The invitation contemplated by ss 425(1) and 425A of the Migration Act was given in the letter to the applicant, dated 8 January 2003. The reference numbers appearing on the file copy of this letter indicate that it was sent by registered post to both the applicant and his authorised [NAME]. I infer on the balance of probabilities that it was sent within 3 working days of 8 January 2003 in accordance with the requirements of s 441A(4). [NAME] was not obliged to take any further steps to ensure that the applicant availed himself of the opportunity to appear. 20 In those circumstances, [NAME] did not fail to comply with the requirements of ss 425 and 425A of the Migration Act. 21 The applicant has not identified any basis on which it could be said that [NAME] had committed a jurisdictional error. I am not able to discern any such error. [NAME] made findings on the only information available to it, namely the applicant's brief and vague statement and the country information in relation to India. It appears to have applied the correct principles.

conclusion 22 The application must be dismissed. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate: Dated: 29 July 2003 Counsel for the Applicant: [redacted]

Solicitor for the Respondent: [redacted]

Date of Hearing: 29 July 2003

Date of Judgment: 29 July 2003