Hussaini v Minister for Immigration & Multicultural Affairs [2001] FCA 163 (23 February 2001)

Last Updated: 5 March 2001

FEDERAL COURT OF AUSTRALIA

Hussaini v Minister for Immigration & Multicultural Affairs [2001] FCA 163

SYED AZHARULLAH HUSSAINI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1249 OF 2000

HELY J

23 FEBRUARY 2001

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1249 OF 2000

BETWEEN:	SYED AZHARULLAH HUSSAINI APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	23 FEBRUARY 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed with 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 1249 OF 2000

BETWEEN:	SYED AZHARULLAH HUSSAINI APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	HELY J
DATE:	23 FEBRUARY 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The applicant is a citizen of India who arrived in Australia on 26 February 1998 on a one month temporary business visa. On 20 March 1998 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. The applicant is a Muslim who claims to have been persecuted by the Hindu majority in India because of his religious beliefs. The application for a protection visa was refused by the Minister's delegate, and on 6 October 2000 the Refugee Review Tribunal ("RRT") affirmed the Delegate's decision not to grant a protection visa. The applicant seeks an order of review of that decision. The application for an order of review asserts that the applicant is aggrieved by the decision because upon his return to India he will face "persecution by the authorities and possibly life imprisonment".

2 On the hearing of the application the applicant appeared for himself without the benefit of legal assistance and addressed me through an interpreter. The disadvantages to which a person in that position is subject are obvious. I have attempted to make full allowance for them in considering the matters that have been put to me.

3 The applicant alleges that both the delegate and RRT have made an error of law under s 476(1)(e) of the Migration Act 1958 (Cth) ("the Act"):

"Involving an incorrect interpretation of the application of the law to the facts as found by the person, who made the decision."

4 At no point in the application does the applicant specify, even in the most general of terms, the nature of any error of law upon which he relies. When the matter came on for hearing this morning, the applicant produced a written submission which he had prepared. It is a document of five or six pages in length, which I have placed with the papers and which I have taken into account.

5 The problem with which the applicant is confronted is that the jurisdiction of this Court to review decisions of RRT is strictly limited by the terms of the Act. Unless the applicant can establish one of the grounds of review as set out in s 476 of the Act this Court has no entitlement to intervene.

6 The applicant really put his finger on the problem that he faces during the course of his oral submissions to me when he said that the Tribunal was not prepared to listen to his story as he wanted to tell it, and the member did not accept his story. It was for RRT to decide whether it accepted the story which the applicant put before it, and in significant respects it did not accept it. Whilst I can understand that the applicant may be disappointed that RRT did not accept his version of the facts, the mere fact that it was not prepared to do so does not entitle this Court to intervene. RRT gave detailed consideration to the case that the applicant put to it. RRT was not satisfied that anyone in the applicant's community or in India generally would perceive the applicant as an activist or a leader within the Muslim community and did not consider that:

"An ordinary Muslim like the applicant is at risk of harm upon return to India."

7 RRT appeared to accept that the applicant, like other Muslims in India, faced discrimination, harassment and insults from Hindus but pointed out that:

"Discrimination per se is not enough to establish a case for refugee status."

RRT assessed the level of discrimination claimed by the applicant and found that it fell well short of the standard that is required to establish persecution.

8 Whilst acknowledging that there was a history of problems between religious groups in India, RRT considered that the chance of the applicant being involved in generalised violence was remote. RRT was not satisfied that, as claimed by the applicant, the Indian government does not protect Muslims, nor did it accept the applicant's claims that the police were searching for him or that he would be arrested on his return to India. RRT was not satisfied that the applicant's neighbours in India wanted his property for a Convention reason, nor was it satisfied that the applicant faced any risk of persecution by criminal mobs:

"This risk is confined to certain parts of India and does not extend to India as a whole."

If necessary, relocation within India was a reasonable and feasible option for the applicant.

9 Essentially RRT's decision was that the applicant was not being pursued by the authorities; that if he faced some discrimination at a local level, it would not amount to persecution; and even if it did he could relocate to other parts of India, and relocation was a reasonable and feasible option. In those circumstances, RRT was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason and it affirmed the decision not to grant a protection visa. Nothing which the applicant has put to me establishes any reviewable error on the part of RRT in coming to that decision.

10 As I have already indicated, this Court's role is confined to a consideration of whether one of the grounds in s 476 of the Act has been made out. I am not entitled to engage in a general merits review of RRT's decision and in those circumstances, the application for review to this Court must be dismissed.

11 Counsel for the Minister seeks an order that the application should be dismissed with costs. Mr Hussaini opposes the making of the cost order and the substantial basis of his opposition is that he told RRT the truth. He does not understand s 476, nor does he understand the limitations of this Court's jurisdiction, and hence submits that it would not be appropriate for a costs order to be made against him. I have already indicated that I sympathise with a person in the position of Mr Hussaini in that respect, but nothing which he has put to me provides a sufficient reason in point of law for departing from the ordinary principle that an unsuccessful applicant in circumstances such as these should be ordered to pay the respondent's costs. I therefore order that the application be dismissed with costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated: 1 March 2001

	The applicant appeared in person
Counsel for the Respondent:	S Lloyd
Solicitor for the Respondent:	S Goodman, Blake Dawson Waldron
Date of Hearing:	23 February 2001
Date of Judgment:	23 February 2001