A51 of 2003 v Minister for Immigration - [2004] FMCA 508

FEDERAL MAGISTRATES COURT OF AUSTRALIA

A51 of 2003 v MINISTER FOR IMMIGRATION

[2004] FMCA 508

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – use of past events to determine likely future events.

Migration Act 1958 (Cth), s.36(2)

Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant:

APPLICANT A51 of 2003

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ 977 of 2003

Delivered on:

20 August 2004

Delivered at:

Melbourne

Hearing date:

16 August 2004

Judgment of:

Riethmuller FM

REPRESENTATION

Counsel for the Applicant:

Ms Ellyard

Solicitor for the Applicant:

Mark Clisby

Counsel for the Respondent:

Dr Donaghue

Ms O’Regan

Solicitor for the Respondent:

Clayton Utz

ORDERS

The application be dismissed.
The applicant pay the respondent’s costs fixed at $6,742.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 977 of 2003

APPLICANT A51 of 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This application was filed on 3 February 2003 in the High Court, seeking judicial review of a decision of the Refugee Review Tribunal (“RRT”) on 3 December 2002 affirming a decision of a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs to refuse to grant a protection visa. The application was remitted to the Federal Court of Australia on 1 July 2003 and then remitted to this Court on 4 September 2003.

History

The applicant is a citizen of India and a Sikh. He came to Australia on 12 August 2001 and lodged an application for a protection visa with the Department of Immigration & Multicultural & Indigenous Affairs on 19 September 2001.
The applicant claimed that he could not return to India as he feared persecution in India because of his Sikh religion and because of his relationship with a maternal uncle who was part of a separatist movement.
On 31 January 2002, a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs refused to grant a protection visa. The applicant applied to the RRT for review of that decision on

4 March 2002.

The RRT’s decision

In the decision made by the RRT on 3 December 2002, the RRT affirmed the decision of the delegate not to grant a protection visa. The RRT found that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention (as amended by the Refugees Protocol). Consequently the applicant did not satisfy the criterion under s.36(2) of the Migration Act 1958 (Cth) (“the Migration Act”) for the purposes of a protection visa.
The RRT made findings with respect to two issues. With respect to the claims of fear of persecution the RRT found:
a)that the applicant had provided a credible account of coming to the adverse attention of the authorities in the late 80s and early 90s, however as he was detained and held for brief periods but released the RRT concluded that this demonstrated that he was not of significant concern to the authorities;
b)that the applicant was able to move to Harayana and remain there for seven years without facing any serious problem;
c)that the applicant had left Harayana for reasons other than his claim that the police came looking for him in 1997 and that thereupon moved to Uttar Pradesh where he remained for two years;
d)that the applicant later moved to Punjab but that this was not as a result of the authorities coming looking for him in Uttar Pradesh;
e)that it was not accepted that the authorities retained an interest in the applicant in Punjab nor that he continued to hide by moving from location to location;
f)the applicant’s passport was issued in 1998 in his own name and bearing his own details. He departed legally from India in 2000 and returned to India in 2001, departing again in the same year;
g)that the applicant had spent nine months in New Zealand but did not make any claim for refugee status. The RRT also found that whilst in New Zealand the applicant never told his priest or local community leader anything about his difficulties in India;
h)that the applicants reasons for not making a claim in New Zealand or advising community members in New Zealand were that he did not have problems which would give rise to a claim for refugee status when he left India; and
i)the RRT also made a finding that any problems the applicant may have had with Sikhs in the past had been resolved.
As a result of the RRT’s findings it concluded that the applicant was not of interest to the authorities in India and that he would not face any harm for a convention reason if he relocated within India.
With respect to the relocation issues, the RRT found:
a)that the applicant did not have any problems in Punjab prior to his departure;
b)that Sikhs can move to other states in India without serious problems;
c)that it would not be of greater concern to the applicant to relocate to another state within India due to the cultural and language differences than moving to a foreign country such as Australia or New Zealand; and
d)the RRT concluded that the applicant could relocate to avoid difficulties that he might face in Punjab.
The result of the RRT findings was that the applicant also failed to satisfy the tests for a protection visa on the grounds that even if he did face harm for a convention reason that he could relocate in India to avoid such harm.

Grounds of review

The applicant in his contentions of fact and law filed on 30 October 2003 raised two complaints with respect to the decision of the RRT. The first complaint was that the RRT applied the wrong test in making the following finding (at page 12):
“As he chose to return to Punjab in 1999 and more recently at his grandmother’s death and made no claim to have faced any problems with his fellow Sikhs I find that any problems he may have had in this regard in the late eighties have been resolved and he is not of concern to the Sikhs.”
The applicant complains that the RRT did not apply the correct test: to ask whether the applicant held a well-founded fear of persecution at the time of the RRT’s decision. Rather, it stated that he made no claim to have faced problems in the past. The correct test is to assess the situation at the time of making the decision.
It is not appropriate to read that single sentence of the RRT’s decision in isolation, as it is not the only finding nor the only expression by the RRT of its findings on this issue.
In the paragraphs leading up to that sentence the RRT considers a large number of factual matters, all of which provide evidence from which can be drawn a conclusion with respect to the current state of affairs in Punjab.
It is apparent on any logical basis that a review of past events will provide at least circumstantial evidence of the current situation. That this is a plainly legitimate process as was confirmed in Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 575 where the High Court stated:
“Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.”
The applicant says that the RRT failed to consider whether the applicant presently faced a real risk of persecution for a convention reason. The applicant has not provided any reference to evidence to this effect in the reasons of the RRT. The applicant’s evidence was largely rejected on issues of credit. The RRT correctly identified the test to be applied at the commencement of its reasons. The RRT’s analysis of the evidence resulted in no finding of fact that could provide an indication of a real risk of persecution. In the circumstances where the only evidence to support or contradict the applicant’s claim as to his current fears is evidence as to past events, it is appropriate for the RRT to rely upon that evidence in coming to a determination as to whether the applicant presently faces a real risk of persecution for a convention reason.
When the sentence the subject of complaint is read in context it is clear that the RRT relied upon the return to Punjab in 1999 and the recent return following the applicant’s grandmother’s death as evidence to support their conclusion that “any problems he may have had in this regard in the late eighties have been resolved and he is not of concern to the Sikhs” (emphasis added). This conclusion deals with the applicant’s claims of persecution from the Sikh community by concluding that he is no longer of concern to the Sikhs. This is a finding with respect to the present.
I find that the argument of the applicant in this regard is an overzealous scrutinisation of the terms of the original decision, in the sense contemplated by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 where the Court stated that a court should not be “concerned with looseness in the language … nor with unhappy phrasing” of the reasons of an administrative decision-maker. The Court continued:
“The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.”
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.
As a result the application must be dismissed. Nonetheless, it is appropriate that I also deal with the second point, should I be incorrect with respect to the first point.
The applicant’s second complaint is that the RRT is alleged to have failed to apply the correct test when it stated in its findings (at page 12):
“The Applicant has claimed that he can not relocate to another state because his culture and language are different.”
“I accept that this would be of some concern. However, I do not accept that it would be of greater concern than moving to a foreign country such as Australia or New Zealand.”
The complaint of the applicant stems from the finding of the RRT that (at page 13):
“I accept the advice from DFAT that he could relocate and find that there may be certain inconveniences such as language barriers or being in a strange environment that but he could do so if he chose to.”
The applicant says that this is not a rational conclusion based upon the evidence set out by the RRT earlier in its decision that (at page 10):
“Well educated and readily employable applicants, putting to one side family or financial considerations could relocate to another part of India. There are in fact Moslem and Sikh communities in many parts of the country. We are unable to comment conclusively on the likelihood of harassment should applicants return to their place of origin, although consider on balance that even this is unlikely.”
Whilst there does not appear to be evidence that the applicant is well educated or “readily employable” the RRT had to make a decision about whether or not it was reasonable to expect the applicant to be able to relocate. There was evidence before the RRT to the effect that the applicant had previously relocated within India and had spent time in a foreign country, New Zealand. It was open to the RRT to make the findings of fact that it did.
In the circumstances I would also dismiss the second ground for review.
I therefore find that there are no grounds that establish jurisdictional error on the part of the RRT and therefore the application should be dismissed.
The parties agreed that costs ought to follow as agreed and failing agreement as assessed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Associate:

Date: