S1006 of 2003 v Minister for Immigration - [2005] FMCA 879

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S1006 of 2003 v MINISTER FOR IMMIGRATION

[2005] FMCA 879

MIGRATION – Refugee – “sur place” claim – Tribunal failed to make any finding as to whether applicant would have received effective state protection.

Migration Act 1958
Federal Magistrates Court Rules, 21.02(2)(a)

Yadwinder Singh Mehrok v Minister for Immigration, Multicultural & Indigenous Affairs [1998] 812 FCA
Applicant S1174 of 2002 v Refugee Review Tribunal [2004] FAC 289
Sabaratnasingham v Minister for Immigration, Multicultural and Indigenous Affairs [2000] FCA 261
Applicant A v Minister for Immigration, Multicultural and Indigenous Affairs [1999] 53 ALD 545 at 447
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Applicant A321 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 306
Walton v Gardiner (1993) 177 CLR 378
SZBJM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 404

Applicant:

APPLICANT S1006 OF 2003

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 1393 of 2004

Judgment of:

Nicholls FM

Hearing date:

23 November 2004

Date of Last Submission:

18 November 2004

Delivered at:

Sydney

Delivered on:

27 June 2005

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Mr. G. T. Johnson

Solicitors for the Respondent:

Australian Government Solicitors

ORDERS

The application is dismissed.
The applicant to pay the respondent’s costs set in the amount of $6800 pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1393 of 2004

APPLICANT S1006 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application filed in this Court on 12 May 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 22 December 1997 and notified to the applicant by letter dated 23 December 1997 to affirm the decision of a delegate of the respondent Minister made on 12 March 1996 to refuse a protection visa to the applicant.
The applicant is a citizen of India who arrived in Australia as a visitor on 14 August 1995 and applied for a protection visa on 10 November 1995. He claimed protection on the basis of his involvement with the Sikh movement in India, and in particular the Sikh Students Federation (SSF). He claimed to have been picked up by police, interrogated and tortured in 1990 and 1991. He said he was the subject of police interest in 1995 when his parent’s house was raided because of his involvement with a planned protest rally. He claimed his parents were told by police he would be killed and he therefore subsequently came to Australia. He claimed the Indian authorities do not provide adequate protection because they are part of the system which wants to see the elimination of the Sikh independence movement.
By way of amended application filed on 19 October 2004 the applicant put forward the following two grounds:
1)That the Tribunal decision was affected by jurisdictional error in that it failed to make any findings in relations to the applicant’s “sur place” claims arising from his participation in a demonstration outside the Indian High Commission in Canberra in August 1996.
2)That the Tribunal failed to exercise its jurisdiction as it failed to make any finding as to whether India could provide the applicant effective protection if he lived outside the Punjab.
The applicant also filed:
1)On 12 May 2004 an affidavit sworn on 11 May 2004. The affidavit contains matters that go entirely to the merits of the applicant’s claim before the Tribunal.
2)An affidavit sworn by the applicant on 19 October 2004 and filed on the same date which goes to the litigation history of the same Tribunal decision now before this Court.
3)A written submission dated 15 November 2004 with attachments. The material in the attachments contains material which variously again goes to the merits of the applicant’s refugee claims, post dates the Tribunal’s decision and includes material not before the Tribunal. Again this is irrelevant to the proceedings before this Court, which is of course concerned with the issue of whether there was legal error in the Tribunal’s decision on the material before it.
The respondent has relevantly filed:
1)Court Book on 23 September 2004.
2)The affidavit, with annexure, of Laura Gazi, solicitor in the employ of the respondent’s solicitors on 17 November 2004.
3)On 18 November 2004 written submissions on behalf of the respondent.
The application before me now filed on 12 May 2004 seeks relief in relation to the Tribunal decision made on 22 December 1997. This same decision has been the subject of previous litigation. The applicant’s affidavit sworn on 19 October 2004 sets out the history of this litigation:
1)23 December 1997 – the applicant receives notice of the Tribunal’s decision to affirm the decision to refuse a protection visa to the applicant.
2)14 July 1998 – Lehane, J dismissed an application for review before the Federal Court in relation to this Tribunal decision. Yadwinder Singh Mehrok v Minister for Immigration, Multicultural & Indigenous Affairs [1998] 812 FCA.
3)26 July 1998 – the applicant consents to being added as a plaintiff in the Harianto class action before the High Court.
4)Formally added to the class action on 10 September 1998.
5)25 November 2002, Gaudron, J orders each of the litigants to individually file for an order nisi.
6)Early 2003 – matter remitted to Federal Court.
7)20 February – Emmet, J dismissed the proceedings. See Applicant S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289.
The applicant was unrepresented at the hearing before me. I note that he did access the Court’s Legal Advice Scheme and on 12 October 2004 was provided advice by a lawyer on the panel of that scheme. The applicant appeared with the assistance of an interpreter in the Punjabi language.
The applicant’s first complaint is that the Tribunal failed to deal with the applicants “sur place” claim arising out of his participation in demonstrations in front of the Indian High Commission in August 1996. The applicant’s stated complaint is that the Tribunal failed to make any findings about his “sur place” claims. At the hearing before me the applicant submitted that the “Tribunal did not consider it very seriously”. He claimed that if he returned to India he would be arrested because of his participation in the demonstration. He referred to two of his friends “who have been murdered over there” in 1995. He also claimed that the Tribunal considered that he was a “low profile person” but that he did not consider there to be much difference between a low or high profile person. The applicant’s submission before me was that the Tribunal, both in relation to the “sur place” issue and more generally, did not consider his claims as serious. He sought to raise additional factual matters that he had not put before the Tribunal to support this claim.
The Tribunal’s account of the applicant’s claims before it is reproduced at CB 137 to CB 139.1 under the heading “Claims and Evidence” in its decision record. At CB 138.9 the Tribunal says in relation to the applicant’s claims at the hearing before it on 26 November 1997:
“He said he had taken part in a demonstration at the Indian High Commission in Canberra in August 1996 and that the Indian authorities were aware of who had participated. He was a member of the International Sikh Youth Federation in Australia.”
According to the Tribunal’s record, this was in response to the Tribunal having put to the applicant that his involvement in the SSF seemed to be a “low profile one”. The applicant is reported as saying that he did not agree and that he was known to the Indian authorities. His claim to have been involved in the demonstration, according to the Tribunal, was put in the context of the applicant’s response to the Tribunal’s assessment of his involvement in the SSF as being one of low profile. Clearly from the Tribunal’s account this claim was in the broader context of his claim of persecution on return to India because of his involvement in the Sikh movement. It was in this context that the Tribunal reports the applicant raised the fate of two others who had been “deported” from Germany and Canada back to India.
I also have before me the affidavit of Laura Gazi, a solicitor in the employ of the respondent solicitors, sworn on 16 November 2004.

At Annexure “A” is a transcript of the hearing before the Tribunal. The first mention of the demonstration at the Indian “Embassy” is at Transcript Page 46 (T 46.9). It is clear from the transcript that the applicant raises the issue of the demonstration in the context of a discussion with the Tribunal on country information and the Indian Government being able to obtain a video of a demonstration after a cricket match in 1993. The applicant put to the Tribunal that he was in a demonstration in 1996 in Canberra and that the Indian government would, as it had done in the instance of the cricket match, be able to find out what he had done here in Australia. The discussion on this point continues until T 47.5. It resumes at T 48 and then, following a discussion generally on the Indian authorities’ treatment of Sikhs, the applicant makes mention of the Canberra demonstration again at

T 56.4:
“A (APPLICANT) Canberra.
A (INTERPRETER) I also went in Canberra. I took part. It’s possible they make have something out of that.”
The Tribunal accepted that the applicant was committed to the Sikh cause and that he suffered at the hands of Punjabi police in 1990 and 1991 [CB 141.5]. But the Tribunal said at CB 141.9:
“While I am prepared to accept that the applicant took part in activities arranged by the SSF, the ‘open’ involvement in the organisation which he has described was for a relatively short period (from April 1990 to January 1991) and is in my view not of a character which would have attracted the sustained attention of the Punjabi police or of other authorities. I find that the applicant’s involvement in the SSF was at the most a low profile one.”
The Tribunal also did not believe all aspects of the applicant’s claims as being accurate, [CB 142.5] and gives instances of its doubts and findings on implausibility at CB 143.2:
“I do not accept that the police visited the applicant’s parents in 1995 as he has claimed or that the police came looking for him at his house in Haryana. I find it even more implausible that the police are still looking for him now, some two years after he left India.”
The Tribunal dealt with the issue of the individuals “deported” to India, and in the context of the applicant’s claim of problems and fear of return to India the Tribunal said at CB 143.5:
“I have concluded that while the applicant may face extortion by corrupt airport or immigration officials he would not be seen to have any “significant political profile” and therefore would not be a particular target for interrogation or torture.”
At CB 143.6:
“I am not satisfied that there is a real chance that the applicant would face persecution because of his involvement in the Sikh affairs if he were to return to India and find that his fear is not well-founded.”
The applicant now complains that the Tribunal did not deal with the “sur place” claim arising out of his involvement in the demonstration in Canberra in 1996. Mr. Johnson for the respondent submitted that the Tribunal did note the claim of risk because of the participation in the demonstration and of being known to the Indian authorities. He argued that the weight to be given to this claim is one for the Tribunal, and that having recited what the applicant said in relation to this issue, the Tribunal should not be taken to have forgotten it when it ultimately concluded at CB 143.5 that the applicant would:
“Not be seen to have any significant political profile, therefore he would not be a particular target for interrogation or torture.”
and at CB 143.6, that it was not satisfied that there was a real chance that the applicant would face persecution because of his involvement with Sikh affairs if he were to return to India, and that his fear is not well founded. Mr. Johnson also submitted relevantly that in the prior Federal Court proceedings before Lehane, J, His Honour referred to the evidence that the applicant claimed he had taken part in a demonstration at the Indian High Commission in Canberra in August 1996 and that the Indian authorities knew who had participated in that demonstration. His Honour’s reference to the evidence is in the context that the applicant feared that if returned to India he would be killed in a “false encounter” in the same way as he had said other deportees had been dealt with.
It is clear that the Tribunal did note and record the applicant’s claim [CB 138.9]. It is also clear that the Tribunal did not make any specific reference to the Canberra demonstration in its “Findings and Reasons”. The issue then is whether this claim was encompassed within the findings that were made by the Tribunal. In this regard:
1)
It is clear from the Tribunal’s record, and more particularly the transcript of the hearing before the Tribunal, that the “sur place” claim was not put forward as a separate specific claim by the applicant. The reference to the demonstration arose out of a number of answers to questions by the Tribunal commencing at about T 38.8 with the Tribunal focussing the applicant on Sikh people being harmed by the Punjabi police (The Tribunal’s record reports this at CB 140). The Tribunal puts to the applicant that the situation appears to be “quieter and calmer”. At about T 41.4 the applicant raises his concern as to what would happen at the airport on return and gives the example of what happened when the German government deported “one Sikh home”. The Tribunal then says to the applicant that it did not accept that anything would happen to anyone with a low profile, that the police may be waiting, but only for someone with a high profile. At T 43.5 the Tribunal tells the applicant that it did not think that his involvement had been of a type that would be of interest to the police and that as against the “real chance test” (T 43.2), the police would much more likely target high profile militants”

(T 45.4). In the context of what would happen on return, the applicant for the first time, at T 46.8 makes the reference to “96 Canberra Embassy, Indian Embassy” and that because of TV and radio the authorities in India would know what happened in Australia. The Tribunal’s then asks the following beginning at CB 47.2 and the applicant provides answers:
“Q 282:              Did you do anything here?
A (INTRPTR):    International Sikh Youth Federation member.
A (INTRPTR):        See, here I am member of International Sikh Youth, I’m a member for that, member of that.”
“Q283:Did you go to the demonstration at the Indian embassy in Canberra in 96?
A (APPLCNT):   Canberra in 96.
A (INTRPTR):    15^th August 96 demonstration I was in that, I went there.
A (APPLCNT):   India.
A (INTRPTR):    See, what he means is that here it’s freedom. If we do the same thing in India then they catch us and they harass us.
“Q284: Mm’hm.”
The Tribunal continues to obtain further detail, but by T48.5 the applicant introduces another theme and it is not until T 56.4 that the applicant returns to this demonstration issue:
A (INTRPTR):    Canberra.
A (INTRPTR):    I also went in Canberra, I took part. It’s possible they can make something out of that.”
2)It is clear from the Transcript that the applicant did not expressly initiate the specific claim that he became a refugee because of his action outside of India, that is, attending the demonstration.
3)His specific claim, in answer to the Tribunal’s initiating questioning from the Tribunal was that he had problems in India, that the authorities would wait for him on return, they would know of his actions outside of India, the attendance at the demonstration and his membership of the SSF because of modern media communications, and that on return he would suffer the same fate as the two other returning deportees. This was the context of the applicant’s claim relating to the demonstration.
4)This is exactly, with respect, as Lehane, J saw the applicant’s claims after he left India for Australia. His Honour said, in looking at the applicant’s claims [at 3 of 9 (1998) 812 FCA]:
“In Australia he has maintained his support of the Sikh cause: he gave evidence that he had taken part in a demonstration at the Indian High Commission in Canberra in August 1996 and that the Indian authorities knew who had participated in that demonstration. The applicant fears that, if returned to India, he will be killed in a “false encounter”: that has been the fate, he says, of other deportees, particularly one from Germany and another from Canada.”
That the Tribunal needs to look at an issue or claim arising out of the circumstances before it is not to be disputed. But in the case before me, when viewed in its proper context, the way the applicant himself put his claim, is the way the Tribunal dealt with it, and in the absence of anything else obviously arising from what he said, the Tribunal’s findings clearly addressed the claim as put. The claim was accurately understood by the Tribunal, as expressed at CB 138.5 to CB 139.1 and as applied in its findings, that his involvement with the SSF was at the most “a low profile one” (CB 141.9), and would not have attracted the sustained attention of Punjabi police or other authorities. The Tribunal dealt with the claims as put. In relation to the finding of implausibility at CB 143.2 in regard to the claim that the police are still looking for him now, and specifically in reference to what may happen at the airport and with reference to the other returning deportees the Tribunal found that he would not be seen to have any significant profile and therefore would not be a particular target [CB 143.4]. It is clear the Tribunal did deal with what would happen at the airport on return which is the context within which the applicant put his claim of fear of harm arising from the demonstration being known to the authorities who would be waiting for his return in a similar manner as occurred to two other returning deportees. The Tribunal then found that it was not satisfied that the applicant had a real chance of persecution because of his involvement in Sikh affairs. In the context of how the claim of the demonstration involvement was put, with particularly the focus on what would happen at the airport on return, the Tribunal’s findings do encompass this aspect of the applicant’s claim. This ground does not succeed.
The applicant’s second complaint is that the Tribunal failed to exercise its jurisdiction as it failed to make any findings as to whether India could provide to the applicant, effective protection if he lived outside the Punjab. In its decision record at CB 143.8 the Tribunal says:
“Because I have found the applicant’s fear of persecution for a Convention reason is not well-founded, I am not required to consider whether it would be reasonable for him to relocate to another place in India in order to avoid the harassment by the Punjabi police which he claims to have experienced.”
It is well established that if a fear of persecution in one location is well-founded, then the availability of protection in the remainder of the country must be considered where a Tribunal is looking at whether it is reasonable to return such an applicant to another part of the country. However, it will not be necessary to consider the issue of reasonableness of relocation in circumstances where the Tribunal finds that there is no well-founded fear of persecution. See the Full Federal Court in Sabaratnasingham v Minister for Immigration, Multicultural and Indigenous Affairs [2000] FCA 261 at [13]. Nor is it necessary to consider the issue of the adequacy or effectiveness of state protection as it may apply in a relocation situation. In this case the answer to the applicant’s complaint in this regard is that given that the Tribunal found that the applicant’s fear was not well founded and was not satisfied there was a real chance of persecution because of his involvement in Sikh affairs then there was no need to address the question of relocation or of adequate state protection were he to relocate. The question of relocation is immaterial given the finding of the Tribunal.

Even though it correctly asserted that it did not need to do so, because of the above finding the Tribunal did however address one aspect of the applicant’s claims, that is the harassment by the Punjabi police which he claimed to have experienced. In this context the Tribunal accepted the applicant’s claims that he had been harassed by the police from 1990 to 1993 while living in the Punjab, but as it did not accept that he had been harassed since that time and that the applicant had nothing to do with the police while living in Haryana until what he claims occurred in 1995. On this basis the Tribunal considered that there were sufficient grounds to conclude that it would be reasonable for the applicant to live outside the Punjab should he choose to do so. Mr. Johnson submitted that the Tribunal’s reasons could be read consistent with the Full Court in Applicant A v Minister for Immigration, Multicultural and Indigenous Affairs [1999] 53 ALD 545 at 447 [54], in that India could provide effective protection to the applicant outside the Punjab as well as finding that he could reasonably relocate outside the Punjab. Mr. Johnson submits that the Tribunal’s statement of the relevant law at CB 136.6 to CB 136.8 (which he reminds, that Lehane, J found this Tribunal’s summary to be “unexceptionable”), reveals the awareness of the integer of effective protection. Further, the words “in order to avoid the harassment by the Punjabi police which he claims to have experienced” (CB 143.7) support the inference that the Tribunal’s finding did encompass effective protection, to the extent that the words “in order to avoid” may be read as envisaging the achievement of avoidance and not merely the intent to avoid.
The Tribunal clearly did not express at CB 143 the question of effective state protection outside the Punjab. The respondent relies on “Applicant A” for the proposition that the factual conclusion of what the Tribunal did is that India could provide the requisite level of protection, and that this is implicit, and did not require any further explicit formulation. What the Tribunal did was to look at the one aspect of the applicant’s claims that it did accept, namely that at some time he had been harassed by the Punjabi police. A plain reading of the paragraph at CB 143.7 of the Tribunal record shows that its mind was focussed on the issue of the Punjabi police and the possible harm from them. I accept the respondent’s submission, as it relates to the issue of avoiding harassment by the Punjabi police, that in the circumstances of the Tribunal’s decision dealing with the applicant’s claims as put, it is open to find that the Tribunal’s finding involved the adequacy of state protection. But whatever the situation it is clear is that for the applicant to succeed, it is the finding in the preceding paragraph that he would need to successfully show contained jurisdictional error. As this is not the case the Tribunal’s subsequent findings on relocation were not necessary. Further, the fact that the Tribunal did go on to make these findings did not adversely affect, or detract from its core finding that it was not satisfied that there was a real chance of persecution because of the involvement in Sikh affairs.
The grounds advanced by the applicant are not made out. The Tribunal looked at all of the applicant’s claims as put by the applicant.

It accepted one relevant claim, that he had been harassed at some time by the Punjabi police, but it did not accept other claims made by the applicant, and found that on return he would not be seen to have any significant political profile and would therefore not be a target. These findings were all open to the Tribunal to make on the material before it, and it gave reasons. I can see no jurisdictional error in how the Tribunal approached its task in relation to this core finding. The application is therefore dismissed on this basis.
Having dismissed the application on the basis set out above it is not necessary to consider the other issues raised by the respondent. But given the length of time since the Tribunal’s decision and the making of this application and in particular the lengthy litigation history in this period, I should for the applicant’s benefit note the following:
1)The Tribunal decision of which the applicant complains was before the Federal Court in 1998. The applicant was represented by Counsel and a firm of solicitors. The applicant also became part of proceedings before the High Court, which following remittal to the Federal Court, that matter was dismissed by Emmett, J in February 2004. To the extent that any claims in substance made on those earlier occasions would still be pressed, the doctrines of res judicata and issue estoppel would operate to prevent them being brought again.
2)But in any event the applicant has not sought to do this. Before this Court, as he states in his affidavit sworn on 19 October 2004, at paragraph 10, he seeks to raise different grounds to those heard on the first occasion by the Federal Court. The applicant however, has put nothing before me to show, nor is anything evident, why the two grounds he now puts forward could not have been raised in the earlier proceedings. The applicant has not put forward, nor are any apparent, any special circumstances to prevent Anshun estoppel from arising. [Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589]
3)The respondent’s Counsel has also submitted that this application is an abuse of process in the circumstances where the repeated bringing of similar applications where it would be vexatious or oppressive is an abuse of process. His Honour Justice Wilcox, in the case of Applicant A321 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 306 found that res judicata applied in that case but then went on to observe [18]-[19]:
“If I am wrong in saying that this is technically a matter of res judicata, it certainly seems to fall within the Anshun principle if that be correct, I would hold that the claim to re-litigate the same application for relief is an abuse of process within the meaning of that term discussed by Mason CJ and Deane and Dawson JJ in Walton v Gardiner.”
4)In Walton v Gardiner (1993) 177 CLR 378, 393 the High Court per their Honours Mason CJ and Deane and Dawson JJ, [at paragraph 22]:
“Yet again, proceedings before the Court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.”
There is a clear underlying public interest, that I ask the applicant to consider, and that is that, there be finality in litigation and that a party should not be repeatedly vexed in the same matter. In this regard see for example Justice Madgwick in the case of SZBJM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 404 at [29]:
“Nothing has been put to me to indicate that there is any arguable basis at all for any of the new points sought to be raised and, given that the appellant has previously litigated his way with legal advice to a Full Court of this Court and thereafter, it seems without such advice, to the High Court, it is high time that all this litigation was put to an end.”
5)In this case, the applicant seeks to have review of the same Tribunal decision with the same facts that were before the Court previously. While the grounds in the current application are different, he puts forward no special circumstances to explain why these grounds, with the benefit of legal assistance, were not put forward in the earlier proceedings. The applicant has previously been before the Federal Court and his application was dismissed. He commenced proceedings in the High Court and subsequently the Federal Court dismissed his second attempt to seek judicial review of the same decision of the Tribunal and is now seeking to challenge the very same decision some 6 ½ years after the Tribunal made its decision.
For the applicant’s benefit, without explanation as to why the grounds were not raised earlier, or special circumstances, it will be difficult to succeed simply by coming forward with new grounds.
In any event, this application is dismissed on the basis that I can see no jurisdictional error in the Tribunal’s decision as set out above.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: Wagma Aziza

Date: 23 June 2005