NAUQ v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1340

FEDERAL COURT OF AUSTRALIA

NAUQ v Minister for Immigration & Multicultural & Indigenous Affairs
[ 2003] FCA 1340

NAUQ v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ORS
N 924 OF 2003

HELY J
21 NOVEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 924 OF 2003

BETWEEN:

NAUQ
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

KAREN SYNON
MEMBER REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

THE PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:	HELY J
DATE OF ORDER:	21 NOVEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application is 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 924 OF 2003

BETWEEN:

NAUQ
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

KAREN SYNON
MEMBER REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

THE PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:	HELY J
DATE:	21 NOVEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant seeks a review of a decision of the Refugee Review Tribunal (‘the RRT’) which was handed down on 18 July 2003.  By that decision the RRT affirmed a decision of the Minister’s delegate not to grant a protection visa to the applicant.

2. The applicant is a citizen of India.  He claimed to fear persecution in India for reason of his religion, as a member of the Sikh faith, and for reason of his political opinion arising from his association with the Sikh independence movement.  The applicant’s brother was said to be a very active member of that movement.

3. In his protection visa application, the applicant made the following claims:

   (a)in the period commencing in about 1987 he was detained and beaten up by the police and generally ‘worked over’ on a couple of occasions.  He and his brother were frightened as a result of this, and decided to leave India for a period.  In May 1990 the applicant left India for Saudi Arabia, and remained there until May 1992 when he returned to India;

   (b)whilst the applicant was in Saudi Arabia his father was detained, beaten up and treated very badly by the police;

   (c)a few years after his return to India (ie in about 1995) a new police inspector came to the police station and began to harass the applicant.  At about this time the applicant became involved with the Akali Dal political party and caused his entire village to join in support.  The applicant was arrested, warned by the police about his activities and badly worked over.  On one occasion he was released from custody due to intervention by Simranjit Singh Mann, the leader of the applicant’s branch of the Akali Dal party;

   (d)he went to New Zealand on 23 February 2001.  After four months stay in New Zealand, the applicant came to Australia on 9 June 2001.

   The RRT’s findings

4. The RRT accepted that the applicant is a Punjabi Sikh and that his younger brother had a low level political involvement.  The RRT also accepted that given the tumultuous political times of the 1980s in the Punjab the applicant’s brother may have come to the attention of the police due to his attendance at political meetings and there may have been some incidents of harassment, before the brother left India in about 1988.

5. The RRT also accepted that the police may have taken an interest in the applicant after his brother left the country, and the applicant may have been detained, questioned, interrogated and beaten, as was the norm of the Punjabi police in the period.  This finding was supported by independent evidence confirming that, in response to the Sikh militant movement, there had been widespread abuse of police powers directed against Punjabi Sikhs during the 1980s and early 1990s.

6. However, the RRT found that there had been significant exaggeration in the applicant’s account of police harassment, detention and physical abuse.  This finding was based upon several inconsistencies in the claims advanced by the applicant.  Thus:

   (a)in his protection visa application, the applicant claimed that he was first detained and beaten in 1987 after police arrested him when trying to find his brother.  This was contradicted at the hearing before the tribunal when the applicant stated that he was first detained in 1988 and that this was after his brother had left India;

   (b)at the hearing, the applicant asserted that he had been detained ten or twelve times in the period after his brother left India in 1988 and before the applicant’s departure to work in Saudi Arabia in 1990.  This claim was not referred to in the protection visa application and was raised for the first time at the hearing;

   (c)in the protection visa application, it was claimed that the applicant became involved with the Akali Dal political party after his return from Saudi Arabia in 1992 and had caused his entire village to join in support.  In contrast, the applicant’s evidence at the hearing was that he had never been a member of the Akali Dal party and had only attended meetings with his brother prior to 1988; and

   (d)in the protection visa application, the applicant claimed that on one occasion he had been released from custody due to intervention by Simranjit Singh Mann, the leader of his branch of the Akali Dal party.  At the hearing, the applicant said that he had never met Simranjit Singh Mann and that there had been no such intervention on his behalf.

7. Nor did the RRT accept the applicant’s claim as to the mistreatment of his father whilst the applicant was in Saudi Arabia, as again this claim was contradicted by evidence given at the hearing.  Nor did the RRT accept the applicant’s claims of political activity, detentions and beatings after the applicant’s return to India from Saudi Arabia.  The RRT did not accept that the applicant was of any concern to the police since his departure for Saudi Arabia in 1990.

8. The RRT did not consider that the applicant faces a real chance of persecution in the Punjab because he is a Sikh or for any other reason connected to his political or imputed political opinion or religious opinion.  The RRT’s reasons for this opinion included the following:

   (a)the independent evidence indicated that the situation in the Punjab has been stable since the early 1990s and continues to improve;

   (b)the applicant had travelled from India in 1990 to work in Saudi Arabia and returned in 1992 using a passport in his own name.  According to information from the Department of Foreign Affairs and Trade, it was unlikely that the applicant would have been permitted to leave the country if he had been of any adverse interest to the authorities.  The same reasoning applied to the applicant’s departure from India in 2001 to travel to New Zealand; and

   (c)before arriving in Australia in June 2001, the applicant spent four months in New Zealand.  His failure to seek asylum in New Zealand seriously undermined his claimed fear of persecution.

   The grounds of review

9. An amended application for an order of review was filed on 17 October 2003.  The only grounds of review specified with any particularity are grounds 6, 7 and 8.  They are as follows:

   ‘6.       The Tribunal failed to take into consideration any information pertaining to the applicants religion or the religious climate in India.  As the application is based on both religious and political grounds, it is necessary to consider relevant country information as to both political and religious climate.

   The Tribunal found that:

   “Based on the evidence before it, the Tribunal does not consider that the applicant faces a real chance of persecution in Punjab, India because he is a Sikh or because of his association with the Akali Dal (Mann) party or the Sikh Student Federation, for any other reason connected to his political or imputed political opinion or religious opinion, or for any other reasons in the Refugees Convention and it finds that his fear of what might follow his return to his home state is not well-founded within the meaning of the Convention.”  (RRT decision, p. 17)

   By failing to consider information regarding the religious climate of India and its relevance to the applicant, the Tribunal made an error in law and has failed to take into account a relevant consideration.

   7.        The Tribunal ignored relevant material.  The Tribunal had before it, independent country information from “The United Kingdom Home Office, Immigration and Nationality Directorate’s 2002 India assessment”:-

   “Amnesty International … concluded that Sikhs were often arrested on mere suspicion that they were linked to armed secessionist groups.  Family members of suspects were arbitrarily detained and tortured in order to extract information about the suspects whereabouts or activities.”

   In making the decision, the Tribunal failed to take into consideration this information and the fact that the applicant is a Sikh.

   8.        The Tribunal, while considering the reasons surrounding the applicant’s fear of persecution on political grounds, failed to ask whether the applicant suffered fear of persecution based on religious grounds.  As a result, the Tribunal made an error of law.’

10. Essentially these grounds assert that the RRT failed to take into account material which was before it as to whether the applicant had a well-founded fear of persecution on religious grounds, and erroneously confined its consideration of the application to persecution on political grounds.

11. In his oral submissions, Mr Burwood, counsel for the applicant changed his ground.  He submitted that there was ‘insufficient material’ before the RRT to enable it to address the religious dimension of the applicant’s claim.  There was ‘little’ contemporaneous country information before the RRT as to whether a Punjabi Sikh faced persecution in India for reason of his religion.  This was at least partly due to a failure on the part of the applicant to ‘flesh out’ a claim based on religious activities.  The RRT committed a jurisdictional error, in Mr Burwood’s submission, because natural fairness requires that both of the grounds advanced by the applicant need to be assessed and dealt with thoroughly by the RRT.  There was no evidence in the country information to support the RRT’s findings.

12. The RRT was clearly aware that the applicant sought asylum on both religious and political grounds.  It said so on p 136 of the relevant documents.  Country information quoted by the RRT suggested that during the 1980s and early 1990s Punjabi Sikhs were exposed to a risk of persecution at the hands of the police because they were members of the Sikh community.  The passage from the United Kingdom Home Office, Immigration and Nationality Directorate’s 2002 India assessment which is quoted in par [7] of the amended application relates to that period.

13. That country information recognised the history of violence and police brutality which existed in the Punjab up until 1993.  But the country information disclosed that ‘Punjab has been peaceful since 1993’.  Hence the RRT’s observation that there is no evidence, apart from the applicant’s assertion, that violence will return to the Punjab and police will commit excesses as in the past.  The country information quoted by the RRT, and which was put to the applicant at the hearing, indicates that the situation in the Punjab is stable and continues to improve.

14. Thus the RRT addressed the applicant’s claim that he was exposed to a risk of persecution in India because he was a Sikh.  There was nothing put before the RRT to indicate that the applicant’s claim to fear persecution on the ground of religion had some dimension other than his membership of the Sikh community.  The RRT addressed that claim, and having regard to the country information before it, did not accept it.  The application for review therefore fails.

15. Even if Mr Burwood’s oral submissions were accepted, they do not make out a case of jurisdictional error.  The contention that the evidence is ‘insufficient’ to sustain a particular conclusion invites merits review.  The contention that there was ‘no evidence’ as to whether the applicant is at risk of persecution by reason of his religion would prevent the RRT being satisfied as to that matter.

16. The application is dismissed with costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:            21 November 2003

Counsel for the Applicant:	Mr D Burwood
Solicitor for the Applicant:	M Clisby Solicitor
Counsel for the Respondent:	Mr D Jordan
Solicitor for the Respondent:	Blake Dawson Waldron Lawyers
Date of Hearing:	18 November 2003
Date of Judgment:	21 November 2003