Specialist in Australian Immigration, Migration Consultant and Online Australian Visa Assessment Service.
Australian Immigration Specialists - Australian Immigration Consultants Online Australian Visa Assessments for immigration to Australia
  Research Home

Categories
Administrative Appeals Tribunal
Federal Court
Federal Magistrates Court
Full Federal Court
High Court
Migration Review Tribunal
Other Jurisdictions
Refugee Review Tribunal
Recently Added
Re Patterson; Ex parte Taylor [2001] HCA 51 (6 September 2001)
Singh v Commonwealth of Australia [2004] HCA 43 (9 September 2004)
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

"Use the Migration Specialists that migration agents use"
Cases

MIGRATION - Application for protection visa - applicant citizen of India - claimed persecution by reason of Muslim religion - tribunal found applicant not credible - no error by tribunal.

VSAJ v Minister for Immigration (No.1) [2004] FMCA 569 (1 September 2004)

VSAJ v Minister for Immigration (No.1) [2004] FMCA 569 (1 September 2004)
Last Updated: 19 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VSAJ v MINISTER FOR IMMIGRATION (No.1)
[2004] FMCA 569




MIGRATION - Application for protection visa - applicant citizen of India - claimed persecution by reason of Muslim religion - tribunal found applicant not credible - no error by tribunal.




Judiciary Act 1908

Applicant:
VSAJ




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


MLG 1046 of 2003




Delivered on:


1 September 2004




Delivered at:


Melbourne




Hearing Date:


1 September 2004




Judgment of:


Phipps FM




REPRESENTATION

Counsel for the Applicant:


Mr J. Belbruno




Solicitors for the Applicant:


Joseph Belbruno




Counsel for the Respondent:


Mr Heerey




Solicitors for the Respondent:


Blake Dawson & Waldron




ORDERS

(1) That the application is dismissed.

(2) That the applicant pay the respondent's costs fixed at $6,000.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE



MLG 1046 of 2003

VSAJ



Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1908 for relief by way of prerogative writ against a decision of the Refugee Review Tribunal made on 30 June 2003. By that decision, the tribunal affirmed the decision of a delegate of the respondent not to grant the applicant a protection visa.

2. The applicant is a citizen of India who arrived in Australia on 13 August 2001. In May 2001, he had applied in India for a tourist visa to visit Australia for a honeymoon tour and described his marital status as "engaged". He travelled to Australia under an Indian passport. He applied for the protection visa on 25 September 2001. On 14 February 2002, the respondent's delegate refused the application. On 5 March 2002, the applicant applied to the Refugee Review Tribunal for a review of the delegate's decision. A hearing was held on 10 October 2002 and was then adjourned because the tribunal member thought the applicant might have difficulty understanding and adjourned it so that a Hindi interpreter may be retained. The hearing resumed on 12 June 2003.

3. The applicant claimed to fear persecution by Hindus because of his adherence to the Muslim faith. He is 31 years old and is an Ismaili Muslim from Bombay, Maharashtra. He claimed that he joined the Muslim League in 1996 and was appointed a senior member of his branch in 1998. He claimed that he was present at the Muslim League office in April or May 1999 when it was attacked by Hindus and police. His leader and a teenage boy were killed. He was injured and taken to hospital for 25 days. He claimed that when taken from the hospital to the police station he signed a false statement after torture. His parents arranged for his release from jail by a bribe. He said he resigned from the Muslim League and travelled to his uncle's place in Surat, about four hours from Bombay, where he stayed for around two months.

4. The applicant claimed that in November 1999, he was again arrested while arriving in Bombay from Surat and was accused of supplying guns and ammunition to Muslims fighting Hindus. He said that his solicitor arranged his release by a bribe but he was required to report to police once a week. He said that the police told him to get out of India or commit suicide. He then travelled to Bangalore. While there he remained for eight or nine months. He said that the chief inspector of the crime branch of the Indian intelligence service of New Delhi arrested him. He was imprisoned in Bangalore jail and then after one week he obtained 25,000 rupees from his brother to bribe the chief inspector to release him. He said that the chief inspector told him that this would be the last time he would help him and that he had to leave India as soon as possible because the police were looking for him in every state.

5. He then travelled to Punai and stayed with a friend for six months. He claimed that in October 2000, he was again recognised by the same chief inspector of the crime branch of the Indian intelligence service of New Delhi who again told him to leave the country. He said the chief inspector told him that the Bombay police had charged him with a bomb blast in Bombay. He claimed that he had been deliberately persecuted by the police and government of India. He said he had charges against him for crimes he could not have committed as he was not in Bombay. He claimed that he had demonstrated that he could not move to another part of India to escape arrest.

6. The tribunal, in its reasons, recounts various matters that it put to the applicant about inconsistencies and other matters in his evidence. One matter was that the applicant said at an earlier stage that he could obtain documents from his lawyer about the bribe that the lawyer had paid and the circumstances surrounding that incident. Ultimately, when the hearing resumed, the applicant said he could not obtain the documents from his lawyer. He said that his lawyer had disappeared. He was asked about his evidence that the Bombay police had sent notices about him throughout India. He gave evidence that there was a report in a newspaper that he was wanted. When asked when that report had been published he responded that it was after his second arrest. He was asked in what month of what year the report had been published. He hesitated before responding that it appeared about two months after his second arrest in September or October 1999.

7. At the second hearing, the applicant told the tribunal that he wanted to obtain evidence that the police had arrested him, a document evidencing that he had been released on bail and a photocopy of his file that would contain details of the charges against him. The tribunal referred to country information and quotes from US Department of State International Religious Freedom Report India, October 2001. It said that in Maharashtra, Hindu-Muslim violence increased during the period covered by the report, but there was no evidence that the state government was favouring one community over another.

8. The report refers to the government announcing its intention to prosecute the leader of a right-wing Hindu organisation for his role in inciting riots against Muslims where a large number of Muslims were killed. The report says this:

Despite the incidents of violence and discrimination during the period covered by this report, relations between various religious groups generally are amicable among the substantial majority of citizens.

9. The tribunal, in its findings, said that it found that the applicant was an untruthful witness. It considered his evidence was inconsistent, rehearsed and far-fetched in significant respects. It found that the applicant's evidence that he feared being persecuted in India for religious reasons was inconsistent with authoritative reports that religious groups in Maharashtra generally have amicable relations and that the Maharashtra government does not discriminate against Hindus or Muslims.

10. The tribunal said that the way in which the applicant responded to questions about his written statement gave a distinct impression to the tribunal that he had rehearsed that statement. It said that this was most apparent to the tribunal when the applicant was asked to specify month and years in respect of significant or relevant matters in that statement. It gives incidents of that. It contrasted that he had difficulty recalling the number of months he resided in different parts of India. The tribunal said there was a striking correlation between what the applicant could recall relatively precisely at the hearing and the content of his written statement. The tribunal also considered that the applicant's failure to account for approximately six months of his time immediately before departing India was due to the fact that it had been omitted from his written statement.

11. It found the applicant's attitude towards obtaining corroborative evidence, which he had stated he would obtain in his protection visa application, to be perverse. It appeared to the tribunal that when the applicant was first asked about those documents that he had forgotten that he had undertaken to obtain them in the first place and that they did not appear important to him. The tribunal found this incongruous in view of his evidence at the hearing that the documents would prove his case. It found his evidence that his lawyer had disappeared from Bombay unconvincing. It considered that his evidence was far-fetched and inherently unconvincing in respect of the series of bribes that he claimed he and his family members had paid. It said the same thing in respect of his two encounters with the chief inspector.

12. The tribunal therefore did not accept that the applicant had been mistreated by Indian authorities or that he had been charged with any criminal offence for religious reasons or other convention reason. It did not accept that he had experienced persecution by Hindus in India because he was a Muslim. The tribunal did not accept that the applicant genuinely feared being persecuted by Hindus or by the Indian authorities for religious reasons or for any other convention reason and consequently it was not satisfied that he had a well-founded fear of being persecuted by Hindus or the Indian authorities for a convention reason.

13. Mr Belbruno, who appears for the applicant, submitted that the tribunal had failed to take into account relevant matters. He was critical of the way in which the tribunal came to its finding about perversity in the applicant's evidence and lack of consistency in his evidence and that the tribunal considered that his evidence had been rehearsed. He also submitted that the tribunal had failed to deal with a relevant matter when it dealt with the country information and the attitude of the Maharashtra government. He said that the tribunal's finding was only that the Maharashtra government did not discriminate against Hindus or Muslims. The way he put his submission was that it was a finding that it did not discriminate between Hindus and Muslims, although the tribunal's finding is in fact that the government does not discriminate against Hindus or Muslims, basing that on the United States Department of State report.

14. I had a little difficulty understanding what it was that Mr Belbruno was saying was relevant. It would seem that Mr Belbruno was submitting that the tribunal did not address the question of whether the government persecuted Muslims. It does find that the government does not discriminate against Hindus or Muslims. Part of his submission was that there was not a direct finding that the government did not discriminate against both. If there should have been some more detail in the tribunal's findings, that is not something which constitutes a jurisdictional error. As I read the tribunal's findings, it is a finding that the Maharashtra government did not discriminate against Muslims and it used that as part of its material it relied upon in determining that the applicant was an untruthful witness and in rejecting his evidence in the way in which I have described.

15. The finding is based on findings of fact and credibility. The tribunal was entitled to reject the applicant's evidence. It gives reasons why it did reject the applicant's evidence and there is nothing inherently improbable in the way in which the tribunal has approached its task. There is no jurisdictional error shown and no basis for the granting of relief. The application is dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate: Sherryn Kwong

Date: 19th October 2004
Australia Immigration Consultants and Online Australia Visa Assessments for immigration to Australia