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MIGRATION - Application to review decision of Refugee Review Tribunal - whether Tribunal erred in law by making inconsistent findings.

SZAYG v Minister for Immigration [2004] FMCA 745 (15 October 2004)

SZAYG v Minister for Immigration [2004] FMCA 745 (15 October 2004)
Last Updated: 19 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAYG v MINISTER FOR IMMIGRATION
[2004] FMCA 745




MIGRATION - Application to review decision of Refugee Review Tribunal - whether Tribunal erred in law by making inconsistent findings.




Migration Act 1958

Applicant:
SZAYG




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG1337 of 2003




Delivered on:


15 October 2004




Delivered at:


Sydney




Hearing date:


15 October 2004




Judgment of:


Barnes FM




REPRESENTATION

Counsel for the Applicant:


Nil




Solicitors for the Applicant:


Nil




Counsel for the Respondent:


Blake Dawson Waldron




Solicitors for the Respondent:


Mr J. Smith




ORDERS

(1) That the application is dismissed.

(2) That the applicant pay the respondent's costs set in the amount of $4,000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG1337 of 2003

SZAYG



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal handed down on 24 June 2003 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. The applicant is a citizen of India who arrived in Australia on

21 March 2002. He lodged an application for protection visa on

5 April 2002. That application was refused and he sought review on

11 June 2002.

2. The basis for his claim in his application was that he feared persecution on the basis of his religion: Islam. He claimed that, as a Muslim, he had faced discrimination in employment and that all Indian governments at the State and Federal level were pro-Hindu, particularly those involving the BJP and fundamentalist parties such as Shiv Sena. He claimed that since major inter-religious riots in 1992 it had been difficult for Muslims in India, particularly so since September 11, 2001 and that there was more tension because of the continued desire of extremist Hindus to build a temple on the site of a destroyed mosque at Ayodhya.

3. He also claimed that he was an active member of and a social worker for the MIM party and on that basis was accused of involvement in an incident in which Hindu pilgrims were killed en route from the Ayodhya temple in February 2002. He claimed that as he was high on a list of suspects he could not relocate within India. He said that in March 2002 he was attacked by Hindu extremists on his way home, that the extremists continued to look for him and it would not be possible for him to obtain protection from the State police who were pro-Hindu.

4. The applicant also claimed that he was unable to complete his University studies because of inter-communal riots and that he had been subject to discrimination at his former work place where Hindu workers had rebuked him because of his religion. He stated that when he ceased being a student he stopped working as he did not need to work.

5. The Tribunal accepted that as a Muslim the applicant could have had subjective fears of persecution in the context of the relevant recent history of Hindu/Muslim rioting in parts of India since independence. It also accepted his claim to be a member of the MIM (a Muslim political party) with the role of social worker. However it stated that, on examining his evidence and on the basis of country information, his fears of persecution in relation to specified claims were not credible.

6. It did not accept that he was prevented from completing his tertiary degree because of riots in Hydrabad during the period of his studies. It was not satisfied, given the resumption of more normalised conditions, that the limited riots that had occurred were an adequate reason for not continuing with his studies as many Muslim students were at Indian universities and there was no evidence before the Tribunal suggesting that there was discrimination at Indian universities against Muslim students.

7. The Tribunal accepted that there could be discrimination in the Indian work place but that it was not unique to the Hindu community. It found that most small and medium business in India was run at the family level and that employers tended to employ people from the extended family or of the same community or religion. The Tribunal also found that Muslim Indians have a substantial share of business on the sub-continent while being under-represented in government and the defence services. It was not satisfied that the applicant's experience of alleged discrimination in employment prevented him from earning a living when he voluntarily left employment apparently provided by Hindus.

8. The Tribunal also found country information regarding the incident in which Hindu pilgrims had been killed to be inconsistent with the applicant's claim that he was suspected of involvement in that incident. In particular, no information was found implicating the MIM in the attack, the applicant lived a considerable distance away and the police did not interview him following the train massacre. The Tribunal did not regard as credible his claim that Hindus were holding him accountable and were searching for him all over India.

9. Moreover while the Tribunal accepted that he was a 24 year old social worker activist, it did not accept as credible that he had a high status in the MIM party as claimed and was not convinced he would be targeted by Hindu fundamentalists. The Tribunal accepted that on one occasion he was attacked on his way home by an unidentified group of people, but this apparently isolated incident did not constitute grounds for persecution under the Convention.

10. The Tribunal also had regard to independent evidence in relation to State protection, particularly in the State from whence the applicant came and his evidence that the police had responded to the one incident of violence directed at him. It did not accept his assertion that he could not expect adequate State protection.

11. The Tribunal had regard to general country information in relation to the situation in India and concluded that it was not satisfied there was a real chance that now or in the foreseeable future the applicant would face persecution if he returned to India on account of his religious beliefs.

12. The applicant filed an application in this court on 15 July 2003 in which he took issue with the factual findings of the Tribunal. He suggested, without particularisation, that the Tribunal had made a wrong decision and committed an error of law and that all the material facts on the record had not been carefully considered by the Tribunal. The application stated that a detailed submission would be filed. The applicant filed written argument on 29 September 2004. It takes issue with the factual findings of the Tribunal, re-stating that the Tribunal did not accept as credible that he had a high status in the party and could be targeted by Hindu fundamentalists, that the authorities could not provide adequate protection and that he would be killed if he returned to India. However merits review is not available in this Court. Those aspects of the applicant's written argument that take issue with the factual findings of the Tribunal do not establish any jurisdictional error.

13. Similarly, the applicant's oral submission that there are still problems in India and that he was attacked once and has a fear of persecution if he returns, seeks merit review of the Tribunal decision. In that respect I note that his claim that he was attacked once was in fact accepted by the Tribunal but that the Tribunal found that this apparently isolated incident did not constitute grounds for persecution under the Convention.

14. In his written argument the applicant also claimed:

In the finding and reason of RRT decision the member of Tribunal accepts that there can be discrimination in the Indian workplace but the same time the Tribunal is not satisfied that the applicant's experience of alleged discrimination in employment prevented him from earning.

15. This ground was elaborated on in oral submissions by the applicant's claim that unemployment in India was very high and that he would not be able to find a job there. This argument appears to take issue with the Tribunal's findings in relation to the applicant's past claim of discrimination and his claim to fear that discrimination in the future.

16. As indicated above, the Tribunal had found that it was not satisfied that the applicant's experience of alleged discrimination in employment prevented him from earning a living when he voluntarily left employment apparently provided by Hindus. The applicant appears to argue that there is an inconsistency in the Tribunal decision in its acceptance on the one hand that there can be discrimination in the Indian workplace and on the other hand finding that it was not satisfied that the applicant's experience of alleged discrimination had prevented him from earning a living. However the findings reveal no jurisdictional error. As submitted by the respondent, the Tribunal findings in this respect address the claims at two levels: first, the specific discrimination about which the applicant claimed (that is being rebuked by fellow workers because of his religion) and secondly at the general level in considering the question of discrimination in the workplace in India as a whole, particularly in relation to Muslims such as the applicant. The Tribunal considered the specific instance of discrimination claimed by the applicant and found that it was not satisfied that his experience of alleged discrimination prevented him from earning a living when he voluntarily left employment apparently promised by Hindus. That finding addressed not only whether the applicant was persecuted (by a threat to his capacity to earn a living) but also addressed the issue of causation in relation to why the applicant left work. Moreover in light of his claim that he left work as he did not need to work, the Tribunal found that he had left work of his own accord rather than because of any discrimination. Hence the necessary Convention nexus was absent in relation to that aspect of his claim.

17. The second general level was relevant because under section 91R(2)(f) of the Migration Act 1958 if it was established that there was a denial of a capacity to earn a livelihood of any kind where the denial threatened a person's capacity to subsist, that would constitute serious harm in section 91R(1)(b) amounting to persecution. However the Tribunal found that the applicant would not be refused work because of his religion, having regard to the nature of small and medium business in India and the fact that Muslim Indians have a substantial share of this business on the sub-continent. In other words, the applicant could find work in Muslim businesses. It did not accept that the applicant was or would be unable to find work because of his religion. No jurisdictional error is apparent in such reasoning. There is no necessary contradiction between the Tribunal's acceptance of the existence of discrimination in employment and its finding that the applicant was not prevented from earning a living.

18. Finally, the applicant's oral claim that there is high unemployment in India, even if true does not establish any jurisdictional error in the Tribunal reasons as there must be a Convention nexus for any persecution.

19. The applicant is self-represented and I have considered the material before me in determining whether any jurisdictional error is apparent. No such error is apparent. The decision turned largely on the Tribunal findings in relation to the credibility of the applicant's claims. Credibility findings are a matter for the Tribunal and the findings were open to it on the material before it for the reasons that it gave.

20. No jurisdictional error is apparent and accordingly the application must be dismissed. I will hear submissions in relation to costs.


RECORDED : NOT TRANSCRIBED

21. The respondent seeks that the applicant meet the costs of these proceedings. There is nothing in the material before me to warrant any departure from the normal rule that the unsuccessful applicant should meet the respondent's costs. His impecuniosity is not a reason for not awarding costs although it may be a matter taken into account by the respondent in determining when and how to seek to recover any costs. I consider that the amount of $4,000 which is sought is appropriate in the light of the nature of this and other similar matters.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 4 November 2004
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