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MIGRATION - RRT refused protection visa - no grounds for review identified.

SZAZW v Minister for Immigration [2004] FMCA 764 (29 October 2004)

SZAZW v Minister for Immigration [2004] FMCA 764 (29 October 2004)
Last Updated: 19 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAZW v MINISTER FOR IMMIGRATION
[2004] FMCA 764




MIGRATION - RRT refused protection visa - no grounds for review identified.




Migration Act 1958 (Cth), s.483A, Part 8

Judiciary Act 1903 (Cth), s.39B

Applicant:
SZAZW




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG 1423 of 2003




Delivered on:


29 October 2004




Delivered at:


Sydney




Hearing date:


29 October 2004




Judgment of:


Smith FM




REPRESENTATION

Counsel for the Applicant:


In person




Counsel for the Respondent:


Mr M. Wigney




Solicitors for the Respondent:


Blake Dawson Waldron




ORDERS

(1) Application dismissed.

(2) The applicant to pay the respondent's costs in the sum of $4250.


FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG 1423 of 2004

SZAZW



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
(Revised from transcript)

(1) This is an application invoking the Court's jurisdiction under section 483A of the Migration Act 1958 (Cth) and challenging a decision of the Refugee Review Tribunal handed down on 6 July 2003. The application for review was filed in this court on 24 July 2003 and has come on for hearing today. The applicant is not represented but has had the assistance of an interpreter.

(2) Section 483A of the Migration Act gives the Court "the same jurisdiction as the Federal Court in relation to a matter arising under this Act". That jurisdiction is the general judicial review jurisdiction conferred by section 39B of the Judiciary Act 1903 (Cth), but subject to limitations under Part 8 of the Migration Act. Those limitations as interpreted by the High Court do not allow the Court to make any order unless it is satisfied that the Tribunal decision was an actual or constructive failure to exercise jurisdiction.

(3) This means that an applicant to succeed in obtaining an order that his case should be reconsidered needs to locate a serious legal error by the Tribunal in its procedures or reasons which amounts to a jurisdictional error. Unless I can be satisfied that such an error was made I cannot make the orders that the applicant is asking. When assessing the legal processes and thinking of the Tribunal it is not my function to consider whether the applicant is or is not a refugee, nor to make findings of fact for myself as to the truth or untruth of his story.

(4) The claims made by the present applicant to satisfy the definition of "refugee" in the Refugees Convention were set out in the Tribunal's reasons as follows:

The applicant is a male Muslim Tamil aged 36 with a wife and three children living in Tamil Nadu, India. He received a secondary education up to year 11 when he discontinued. For two years after leaving school he remained unemployed. The applicant then began selling imported products brought into India by his friends. He also joined a Moslem social welfare organisation called the "Minority Ruling Organisation" (MRO) he was not paid for his work and became president in 1996. The applicant said that he had never had problems with fundamentalist Hindus between the time he left school and the incident in April 2001. The MRO was principally concerned with assisting poor Moslems and other low caste communities. The applicant claimed that because of its name, conservative elements in the majority Tamil Hindu community thought the MRO had political ambitions and through mass conversion of low caste Tamils intended to increase Moslem influence in Tamil Nadu. He claimed that this was not the MRO's intention and at the time he was not aware of the gathering concern among Hindus.

In April 2001 the applicant addressed a gathering at Pattukkottai a predominantly Moslem community south of Madras in Tangor district. He claimed that he offered assistance of the MRO. Later on his journey back to his village by car, he was stopped by what looked like a Police jeep and 4-5 persons dressed in what appeared to be police uniforms. They told him to get out of the car and the driver was sent away. He was interrogated about what he had said to the meeting and accused of converting poor Tamils to Islam. He claimed the police and others with them bashed him unconscious. Later he was picked up by a bus driver and taken home. He collected his wife and children and moved to a friend's home in Madras City where he remained without any further problems with the police until leaving for Australia on 30 January 2002.

The applicant claimed that between April 2001 and his departure, he lived in fear of being discovered by extremist Hindus of the RSS and VHP. He thought that the police may have a photo of him as he believed that these organisations had photos of all leading Moslems and they were closely aligned to members of the Police and the Government of Tamil Nadu. For this reason he cannot expect any assistance or protection from the Police or the Government.

(5) The Tribunal's reasoning in relation to those claims was as follows:

The Tribunal was unable through country information sources to find any reference to the Minority Ruling Organisation (MRO) although there is evidence of Moslem societies involved in similar charity work and conversion of low case Hindus in Tamil Nadu. These activities have in the past caused friction with conservative Hindu religions and political organisations such as the RSS and VHP.

The Tribunal was surprised at the applicant's very limited knowledge about the organisation of which he claimed to have been a member for some time and was its immediate past President. His sudden departure from that post, his inability to provide the Tribunal with the name of his successor, and his claim that his brothers destroyed all the MRO's records, leads the Tribunal to conclude that the applicant's evidence cannot be accepted.

In addition, when asked by the Tribunal what was his understanding of the number of Moslems in Tamil Nadu he replied between 35,000 and 40,000. According to the RRT's States of India Package, Tamil Nadu had a total population of approximately 62,110,839 of which Moslems make up over 3 million or 5.5%. While the Tribunal would not expect such knowledge of an ordinary Indian Moslem, it is not unreasonable to expect that the President of an allegedly Indian Moslem organisation involved in low caste conversions in Tamil Nadu would be aware of the approximate size of the Moslem population in his state of operation.

The Tribunal is not satisfied on the basis of the evidence, that the applicant was the victim of an attack in April 2001, nor that the MRO actually exists. In view of his alleged long association with the organisation, the Tribunal finds it implausible that the applicant would not have known the name of his successor. If the MRO was a bona-fide organisation with a functioning committee structure, the Tribunal would have expected that its records would be held by the secretary or other members of the Committee, not by the brothers of the applicant who were allegedly, angry at his involvement, and according to the applicant's evidence, able to destroy them at will.

The Tribunal does not accept the applicant's claims that following the alleged attack by the police in April 2001 he took his wife and children to live in a friend's home in Madras until he left for Australia on 30 January 2002, and that for this significant period of time he was supported financially by his friend, nor that he "lived in fear" during this period and was in hiding. Whether he would have been of interest to the extremist Hindus or the police is highly doubtful, as on his own evidence, he had resigned from the MRO and was taking no further part in social welfare or conversion activities.

The Tribunal is unable to be satisfied that the applicant faces a real change of persecution should he return to India now or in the foreseeable future. Nor is the Tribunal satisfied that the applicant has a well-founded fear of persecution for a Convention reason.

(6) The applicant's application to this court sought orders for a reconsideration of its decision by the Tribunal, but contained no grounds indicating what were the errors which were claimed to have been made by the Tribunal.

(7) In a document filed on 4 May 2004 headed "Amended Application" the applicant set out five numbered paragraphs making criticisms of the Tribunal's findings. It is unnecessary for me to set them out because plainly each of them attempted only to dispute the factual basis for the Tribunal's conclusions. I am unable to find in any of them a ground alleging legal error by the Tribunal.

(8) Before me today the applicant did not wish to add anything to the points he made in his amended application. But in reply, after counsel for the Minister explained how the Tribunal had reasoned, he made two points. First, that the conclusion of the Tribunal had no credibility insofar as it did not accept that he had been assaulted, because he had scars on his body from the attack which spoke for themselves. Secondly, he thought that the Tribunal when criticising his lack of knowledge of the number of Muslims in Tamil Nadu had relied upon an answer he had given at the hearing. In that answer he had misunderstood the question and had referred to the population of Muslims in his own village. He suggested this misunderstanding was a possible reason why the Tribunal thought he lacked credibility.

(9) In my view, neither of those points gives rise to a legal error in the Tribunal's reasoning, even if I accepted the factual basis for them. I am therefore unable to find any grounds for this court's intervention in the matter and I dismiss the application.


RECORDED : NOT TRANSCRIBED

(10) I order that the applicant pay the respondent's costs in the sum of $4250.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date:
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