Modh v Minister for Immigration & Multicultural Affairs [2001] FCA 499 (18 April 2001)

Last Updated: 14 May 2001

FEDERAL COURT OF AUSTRALIA

Modh v Minister for Immigration & Multicultural Affairs [2001] FCA 499

RAMUL KUMAR MODH v MINISTER FOR IMMIGRATION &

MULTICULTURAL AFFAIRS

N 253 OF 2001

EMMETT J

18 APRIL 2001

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 253 OF 2001

BETWEEN:	RAMUL KUMAR MODH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	18 APRIL 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent's costs.

3. The respondent notify the applicant as soon as practicable of these orders and the terms of Order 35 rule 7(2)(a).

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 253 OF 2001

BETWEEN:	RAMUL KUMAR MODH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	18 APRIL 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The applicant is a citizen of India. He arrived in Australia on 1 September 1999. On 14 August 2000 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural Affairs. On 14 September 2000 a delegate of the respondent, the Minister for Immigration & Multicultural Affairs ("the Minister"), refused to grant a protection visa. On 18 September 2000 the applicant applied for review of that decision.

2 On 16 October 2000 the Refugee Review Tribunal ("the Tribunal") affirmed the delegate's decision. The applicant appealed to the Federal Court. On 18 December 2000 the Federal Court ordered that the decision of the Tribunal of 16 October 2000 be set aside, and that the matter be remitted to the Tribunal to be dealt with according to law. On 8 March 2001 the Tribunal, differently constituted, again affirmed the decision of the delegate of the Minister not to grant a protection visa. By application to this Court filed on 16 March 2001, the applicant now seeks an order of review of the decision of the Tribunal made on 8 March 2001.

3 The application discloses no grounds. In the space on the form for the grounds to be set out, appear the words "Details will be sent in a later date". No details have been sent.

4 The matter first came before Hill J for directions on 30 March 2001. The applicant then appeared in person. Hill J set the matter down for hearing at 10.15 on 19 July 2001 or such earlier date as may become available and would be notified to the parties. Hill J noted that an attempt would be made to find another judge to hear the matter at an earlier date, given that the applicant is in detention. Following arrangements within the Court, the matter was listed before me today.

5 On 6 April 2001 the Villawood Detention Centre, where the applicant is presently being detained, was informed that the applicant's hearing was fixed for today. There does not appear to have been any formal notification to the applicant of the earlier date. However, it is clear that the applicant received notification of the earlier hearing date. That is apparent from a communication received by facsimile by my associate during the afternoon of 12 April 2001. That communication is in the following terms:

"I am Modh Rahul Kumar (N-253/2001) writing this letter in respect of my hearing date in Federal Court. My first hearing was on 30 March 2001, and they gave me the another [sic] date on 19 July 2001 and they also said they could give me the earlier date but sir, I request you, don't change the date Please because I need some time about my case. And I am waiting for some overseas information. So Please give me the time and don't change my hearing date."

6 A further communication was received by the Minister today as follows:

"I, Ramul Kumar Modh, refuse to attend Federal Court today 18 April 2001 as my matter is set down for 19 July 2001."

7 I have been informed from the Bar table that this morning the applicant declined to board the vehicle that was intended to convey him to the court for the hearing. The Minister, the light of the absence of the applicant, requests that the Court deal with the matter in accordance with Order 32 rule 2(1)(c), which provides as follows:

"2. (1) If, when a proceeding is called on for trial, any party is absent, the Court may -

...(c) if the party absent is an applicant or cross applicant dismiss the action or cross claim;

....

8 According to the reasons for the Tribunal's decision of 8 March 2001, the applicant claimed to be at risk in India first, because of his Hindu religion and, secondly, because his father is a prominent Hindu in Siddhpur in Gujarat State.

9 The applicant claimed that since 1992 there has been Hindu-Muslim tension in his home town of Siddhpur and that in 1995 or 1996 his father's business premises were attacked in riots. After the riots his father, brother and cousin were detained for five to six months. His family's home was attacked, his mother and relatives were hit during the attack, and later he himself was threatened by five or six Muslim men with hockey sticks. As well, the applicant said that from 1992, occasionally when there were incidents, his father and brother were taken for a few hours to the police station. Further, when he was in Ahmadabad, in late 1997 or early 1998, some men with Muslim names told the rector of his hostel that they were going to kill the applicant.

10 The Tribunal found that the applicant's claim that there is Hindu-Muslim tension in his home state of Gujarat is consistent with independent country information available to the Tribunal. That country information indicates that in Gujarat the state's population of 4.8 million is 60 per cent Hindu and 40 per cent Muslim. The country information indicates that violence between Hindus and Muslims has occurred in Gujarat in the past.

11 On the other hand, the Tribunal, in its reasons, indicated that it had reservations as to the credibility of the applicant's claims that his father, brother and cousin had been detained for reasons prescribed under the Refugee Convention. That, according to the Tribunal, appeared to be inconsistent with the country information available to it. The Tribunal recorded that the country information indicates that, though leaders of several Hindu nationalist organisations in Gujarat have alleged that the State's government was being very harsh on Hindus and was placating Muslims whenever Hindu-Muslim skirmishes broke out, in fact the BJP government in Gujarat is perceived as being overly lenient towards Hindu offenders in the religious tensions.

12 Further, the Tribunal considered that the applicant's own evidence raised doubts as to his credibility. Four reasons were advanced for those doubts. The first was the applicant's delay in lodging an application for protection for over a year after his arrival in Australia until after he was detained for breaching the conditions of his student visa.

13 Secondly, the Tribunal had reservations as to the applicant's claim that his father, brother and cousin were detained for five or six months in 1995 to 1996. It appeared implausible to the Tribunal that the applicant would not know why they were detained, whether they were charged with any offence and why they were finally released.

14 Thirdly, the applicant claimed at a hearing on 6 March 2001, that it was `just understood' in his family that attacks such as the attack on his family home, his mother and his relatives, would occur and that that only his family was targeted in Siddhpur. This appeared to the Tribunal to be an exaggeration.

15 Fourthly, the Tribunal noted that the applicant's claim to have been threatened by people in Ahmadabad was not raised until the hearing held on 6 March 2001. In the earlier hearing before the Tribunal, the applicant said that when he had studied in Ahmadabad, he had had no trouble there, apart from some riots occurring while he was there. The Tribunal considered that it was unusual that such a claim, if proved, would initially be omitted, since a death threat could be presumed to be something memorable.

16 While the Tribunal accepted that there are Hindu-Muslim tensions in the applicant's home state of Gujarat, the Tribunal did not accept that the applicant's claims concerning his father, brother and cousin, and as to his claims to being chased by men with hockey sticks were credible. Nevertheless, the Tribunal proceeded to decide the matter on the basis of accepting as credible, various facts relating to the state of affairs in Siddhpur.

17 As to the applicant's claims that since 1992 his father and his brother had been taken to the police station for several hours each time and then released without charge, the Tribunal concluded that such harm was not so serious as to amount to persecution within the meaning of the Refugee Convention. As to the claims that the applicant's father, brother and cousin were detained for five or six months in 1995 or 1996, the Tribunal was not satisfied that any such detention was motivated by a Convention reason, assuming it occurred.

18 As to the applicant's other claims, the Tribunal noted that the applicant said that he feared harm from local Muslims and not from the government. Although the Tribunal accepted that the threat of harm need not be the product of government action, it may be enough that the government has failed or is unable to protect an applicant from persecution. However, the Tribunal observed that no serious harm from Muslims had occurred to the applicant's family before or after the events of 1995 or 1996, despite their remaining at their usual homes and usual occupations in Siddhpur.

19 Even if it is true that the applicant received a death threat in Ahmadabad in late 1997 or early 1998 from people with Muslim sounding names, nothing adverse actually happened to him. Further, the Tribunal had regard to the fact that when the applicant returned to the Siddhpur area in about March 1999, and remained there with his family, friends and relatives until August 1999, nothing adverse occurred to him.

20 The Tribunal accepted that, given that there is a history of Hindu-Muslim tension in Gujarat, there is a chance that if the applicant returns to Gujarat he may suffer harm because of his religion, if he becomes caught up incidentally in a Hindu-Muslim riot, or if tensions escalate because his family is targeted because his father is seen as a local Hindu leader in Siddhpur. The Tribunal considered that the chance of that happening in the reasonably foreseeable future is remote, given the lack of harm to the applicant's family since 1995 or 1996, and the country information which indicates that the situation is improving in Gujarat.

21 In any event, even if the applicant did face a real chance of serious harm from local Muslims because he is a Hindu, or because his father is regarded as a Hindu leader in Siddhpur, the Tribunal considered that if he did return to his home state of Gujarat, he could access meaningful state protection for two reasons. First, the Tribunal was not satisfied that the applicant had been denied meaningful state protection in the past. Secondly, the country information available to the Tribunal indicated that in general, Hindus in Gujarat can access meaningful state protection.

22 The Tribunal was satisfied that if the applicant were faced with the threat of harm in Gujarat, whether for a Convention or a non Convention reason, he would not face a real chance of the government failing or being unable to protect him. The Tribunal therefore found that if the applicant returned to Gujarat, whether to Siddhpur or Ahmadabad, he would not face a real chance of persecution for Convention reason, his religion or his membership of a particular social group, being his father's family.

23 In any case, the Tribunal also found that even if the applicant did face a real chance of serious harm for a Convention reason if he returned to Gujarat, the chance of harm would be remote if he relocated to another area of India. The Tribunal gave reasons for that final conclusion. For example, the applicant is a Hindu, and the country information indicates that Hindus are in the majority, over 82 per cent, and are the dominant religious group in India.

24 The applicant's evidence at the hearing on 6 March 2001 and the fact that he obtained a passport in his own name and departed from India legally, indicate that he is not of adverse interest to the authorities in India. The applicant said at the earlier hearing, held on 16 October 2000, that he could not relocate because:

* he did not know anybody or anything outside of Siddhpur;

* he had no experience in business, no talent, and no money;

* his father would want him to work in the family business in Siddhpur; and

* there may be Hindu-Muslim riots wherever he relocated in India.

25 The Tribunal did not accept the claim that the applicant could not relocate because he did not know anyone outside Siddhpur. The applicant lived away from his immediate family for a substantial period when he was studying and working in Ahmadabad, and he has been on his own in Australia, where he has apparently adjusted well to living and working in a culture foreign to him.

26 The Tribunal did not accept the claims that the applicant could not relocate because he has no experience in business, nor talent, nor money. The Tribunal found that he is educated, having a university degree; he is skilled, having worked in a chartered accountant's office during his professional training in Ahmadabad; he has had work experience with a chartered accountant in Ahmadabad; and he has also worked in Australia.

27 The Tribunal did not accept that the applicant's claim that, if he returned to India, he would be forced to work for his father, because the applicant was not forced to work for his father while he was in India previously.

28 The Tribunal accepted that the country information indicated that there is tension between Hindus and Muslims in India. However the country information indicates that most of the recent attacks against minorities, have occurred in states such as Gujarat, Uttar Pradesh and Maharashtra, where the BJP, governs either alone or in coalition with other Hindu nationalist parties.

29 The Tribunal found that, excluding the high risk security areas of Kashmir and Jammu, in general, Hindus in India can access adequate state protection, when Hindu-Muslim tension occurs in India. The Tribunal was satisfied that the existence and nature of state protection in India means that there is not a real chance that the applicant would face persecution for his religion, or his membership of a particular social group (his father's family), or any other Convention reason if he were to return to India.

30 The Tribunal therefore found that, even if the applicant faced a real chance of persecution in his home state of Gujarat, if he relocated, he could genuinely access domestic protection, and the reality of protection would be meaningful. The Tribunal found that relocation was a reasonable option for the applicant in his particular circumstances.

31 Having considered the evidence as a whole, the Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugee Convention. I have considered the reasons in full, although the above is no more than a summary. I have been unable to find any error or ground within s 476(1) of the Migration Act in the reasons. In the circumstances, I propose to accede to the Minister's request that the proceeding be dismissed pursuant to Order 32, rule 2(1)(c). However I will direct the Minister to inform the applicant of the orders that I make, and also to bring to the applicant's attention, the provisions of Order 35 rule 7(2)(a), which provides that the Court, if it thinks fit, may set aside an order, where the order has been made in the absence of a party.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated: 9 May 2001

Counsel for the Applicant:	No appearance
Counsel for the Respondent:	R Beech-Jones
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	18 April 2001
Date of Judgment:	18 April 2001