S1044 of 2003 v Minister for Immigration
[2005] FMCA 545
•6 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1044 of 2003 v MINISTER FOR IMMIGRATION | [2005] FMCA 545 |
| MIGRATION – Review of decision of Refugee Review Tribunal – citizen of India – failure to consider claims – perceived political opinion – police threats – particular social group – delay in bringing proceedings – no error of law – application dismissed. Migration Act 1958 (Cth) NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No2)[2004] FCAFC 263 Muin v Refugee Review Tribunal (2002) 190 ALR 601 |
| Applicant: | APPLICANT S1044 of 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 1752 of 2004 |
| Delivered on: | 6 April 2005 |
| Delivered at: | Sydney |
| Hearing date: | 5 April 2005 |
| Judgment of: | Mowbray FM |
REPRESENTATION
| Advocate for the Applicant: | Mr T Silva |
| Solicitors for the Applicant: | Silva Solicitors |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the respondent’s costs and disbursements of and incidental to the application fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1752 of 2004
| APPLICANT S1044 of 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an ex tempore judgment which has been revised and edited from the transcript. It relates to a decision of the Refugee Review Tribunal (the Tribunal) made on 2 August 1996.
Background
The applicant is a citizen of India and lived in the Punjab. He arrived in Australia around the beginning of September 1992. His original application for a protection visa has been destroyed. He apparently arrived on a sports visa which was granted on 31 August 1992 for the Powerlifting Championships in Sydney. The applicant remained in Australia after that date.
On 16 April 1993 he applied for a protection visa. A delegate of the Minister refused the application on 17 May 1993. On 11 June 1993 the applicant sought review before the Refugee Status Review Committee which transferred the file to the Tribunal. A hearing was held on 4 June 1996. On 2 August 1996 the Tribunal affirmed the decision of the Minister’s delegate not to grant a protection visa.
Claims before the Department and the Tribunal
The applicant was a shopkeeper in Patiala. His father had owned the shop but when he died the applicant and his brother kept it in operation. The landlord tried to have the applicant and his brother vacate the premises with the use of police force. The applicant claims that the police were bribed to assist the owner. On 11 June 1974 the landlord and police came to the shop and the police began throwing the applicant’s equipment and belongings out of the shop. The applicant and his brother tried to oppose them, but it ended in a physical fight between them and they were put in gaol.
While they were in prison the landlord took over half of the shop and put up partitions. The applicant and his brother filed a case against the landlord for the forcible possession of the shop. However, the landlord’s brother-in-law was a well-known solicitor and had good relations with police authorities. The applicant claims that the solicitor helped the landlord win the case in the District Court.
The applicant then filed an application in the Session Court of Patiala. The judge admitted that the applicant and his brother were tenants of the shop and had a right to stay, but decided they could only remain in the half that had not been repossessed.
The applicant appealed to the High Court of Punjab and Haryana. He also filed a case against the police for beating him and his brother and taking bribes from the owner of the shop. The judge did not find against the police and from then on the applicant says he was constantly in trouble with the police. The landlord also had the police come around to harass the applicant and throw things out of the shop onto the road. The applicant set up a table outside where he would proclaim the injustice of his treatment and then he would abuse the police. He said that he became mentally disturbed.
After seven or eight years his case was started in the High Court, but by then the landlord’s brother-in-law was a High Court judge and the judge who heard the case was a friend of this brother-in-law. The applicant’s solicitor withdrew from the case saying it was too politically charged and no other solicitor wanted to touch it. Finally a solicitor accepted the matter and the applicant’s landlord was allowed to make an application in the Court. The matter was heard unusually quickly and the judgment went against the applicant. In 1990 he filed a case in the Supreme Court but he lost again. He later found out that his solicitor had not fought the case properly.
The police continued to taunt him, calling him a terrorist and saying they would lay charges against him. The applicant was then selected for a Powerlifting Competition in Australia and shortly after he arrived in Australia for that competition he found out that a court had issued a judgment against him for contempt of court. His shop had also been taken over by the landlord. He says that he fears for his life at the hands of the police if were he to return. He sees himself as the victim of “bad politics and corruption of bribe”.
In summary, he has been involved in disputes with his landlord and in lengthy litigation. He fears the police if he returns.
Tribunal decision
The Tribunal accepted that the applicant had a subjective fear of persecution. It found him to be a credible and truthful witness on all material facts. It considered his claims on the basis of religion and imputed political opinion
as a Hindu who has experienced past harassment by police, the courts and agents of persecution who perceive him to be an opponent of the state.
The Tribunal accepted that the applicant had a fear grounded in his own personal experiences as well as those of his family members. But it considered that the test was whether the applicant was
differentially at risk due to his civil or political status or … whether the harm which the Applicant fears is the result of ‘non-selective phenomena’.
The Tribunal considered country information and discussed it with the applicant. However, it was unable to find that the applicant suffered Convention based persecution arising out of the landlord’s actions and the matter’s subsequent progression through the courts. The Tribunal read the applicant’s court documents carefully and concluded the applicant had confused various issues. Furthermore the applicant had been found in contempt of court for continuing to press allegations of corruption against the shop owner and police.
The Tribunal characterised the applicant’s problem as those of
a small person waging a futile struggle against the forces of authority and privilege.
The Tribunal was very sympathetic to the applicant’s situation of the perceived injustice over such a long period of time. However, the applicant had been given a reasonable opportunity to bring his claims in the Indian court system and at the time of the Tribunal decision was still trying to overturn his contempt charges. The independent country information indicated that India had an independent judiciary.
The Tribunal considered the applicant’s claim that the police would target him due to a perceived link with militants, but found that he was a Hindu, not a Sikh, and had no association with pro-Khalistan supporters in the Punjab. It also found the problems with the police in the region were being addressed and corrected so that there was a less than real chance that the applicant would be persecuted by the police on the grounds of being a terrorist.
It concluded at Court Book 403:
The evidence before the Tribunal leads me to find that the Applicant faces less than a real chance of persecution for a Convention reason arising out of the lengthy litigation in which he has been involved.
The Tribunal considered the applicant’s claims both cumulatively and individually and said at Court Book 404:
I do not find that the Applicant faces a real chance of persecution because of his religion or imputed political opinion upon return to India at this time, or within the reasonably foreseeable future, in terms of the test laid down by the High Court in Chan.
Consideration
Two grounds were put forward in the amended application of 30 March 2005. The first ground related to a failure to consider two claims based on police threats and the second ground to a failure to consider a claim based on membership of particular social groups.
Ground one – police threats
Turning firstly to the police threats, the ground was:
The Tribunal made jurisdictional error as it failed to consider his two claims based on the threat of police attributing to him of political opinion as a terrorist.
Under this head there were two particulars. The first was:
he claimed in his original application (to the Department) that he was perceived as having a link with militants.
In the outline of submissions, the applicant said:
As to the first claim, on Court Book 392.50 the Tribunal said as follows:
Claims at the Primary stage
The Applicant’s claims at the primary stage may be summarised as follows:
- he has been detained in the past on at least three occasions by the Indian police and subjected to interrogation at the police station. The police suspected him of having information regarding Sikh militants attending the gurudwara.
- The interrogation by the police made the Applicant’s landlord concerned that something might happen to his premises.
Then the applicant quoted from the Tribunal’s reasons at Court Book 403 with a pointed reference:
The claims which he put forward in his original refugee application regarding police interrogation were not repeated by him at the review stage.
And again from the applicant’s submissions:
We submit that it was necessary for the Tribunal to have considered the claim the applicant made initially. There is no need for the applicant to repeat them. The Tribunal did not specifically ask about that claim in the hearing as seen from the transcript.
As the Full Court made clear in the decision of NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [63]:
It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error.
So did the Tribunal fail to deal with this claim? As I understand the claim, the applicant was subjected to detention and interrogation by police because of a perceived connection with Sikh terrorists. The Tribunal said he asserted:
The police suspected him of having information regarding Sikh militants attending the gurudwara.
This Court is enjoined not to engage in an examination of the Tribunal’s reasons with a fine-tooth comb. On a fair reading of those reasons, I am of the view that the Tribunal did address the claim of harm due to perceived links with the terrorists. For example the Tribunal said at Court Book 403:
I have considered, in this context, the reference which the Applicant made in his claims to a fear of harm from the police due to a perceived link with militants. I can discern nothing in his evidence which can support this claims. He is a Hindu, rather than a Sikh, and he has had no association in the past with pro-Khalistan extremists or supporters. (The claims which he put forward in his original refugee application regarding police interrogation were not repeated by him at the review stage). In view of the country information referred to above, it is evident that the violence in the Punjab of past years has virtually disappeared and the pattern of abusive behaviour of police is currently being addressed and corrected. Accordingly, there must be a finding that there is less than a real chance that the Applicant will be persecuted on this ground upon return to India.
I note particularly the point made by the Tribunal relating to current attempts to address and correct abusive behaviour of police. It seems clear to me that the claim that the applicant would be branded a terrorist was considered and rejected, even though the Tribunal said that the specific issue of interrogation was not pursued in the application. Furthermore the perceived terrorist issue also formed part of the general claim made by the applicant; that is harassment by the landlord, police and the Courts. As such it was addressed within the Tribunal’s broader reasons.
The second claim under ground one which the applicant asserted was not dealt with was:
the police threatened to falsely detain him as a terrorist in order to put him, in the prison for the terrorist, and teach him a lesson so that he does not accuse police of persecution.
The applicant referred in his submissions to two passages in the reasons of the Tribunal. The first passage was from the claims made at the review stage as reproduced in the Tribunal’s reasons at Court Book 395:
He began to fear for his life as the police threatened that they would consider him to be a terrorist in the future and would charge him with having sheltered terrorists in the Punjab.
In the decision the next sentence said:
The Applicant was terrified that he might one day be killed.
The second quote is from the evidence provided at the Tribunal hearing and is set out in the reasons at Court Book 396-397:
The Applicant claimed that he would be killed if he returned to India. Prior to his departure, a Deputy District Superintendent warned him that, if he continued to insult the police and to use slogans attacking them, he would be sent to a prison in which terrorists were normally confined in order to teach him a lesson. The Applicant stated that he had heard that this was a prison where confessions were extracted by force and the use of torture.
Mr Silva for the applicant said that these claims were not based on a perceived link with terrorists but rather threats by the police to make false charges against the applicant for reason of an attributed political opinion. I am not so sure that I agree, at least as far as the first passage is concerned. It seemed to refer to a perceived link with terrorists.
I have dealt with this claim already. As I have outlined above, I think that it was adequately considered by the Tribunal.
To the extent that the two passages convey a different claim, that appeared to be one of unlawful detention to teach the applicant a lesson. This was raised at least in the transcript of the Tribunal hearing at pages 28‑29. The respondent said that this claim was considered and rejected. In his submissions Mr Reilly referred to the reasons at Court Book 403:
In view of the country information referred to above, it is evident that the violence in the Punjab of past years has virtually disappeared and that the pattern of abusive behaviour of police is currently being addressed and corrected.
The respondent also submitted that consideration of these claims was subsumed within the Tribunal’s broader reasons. I agree.
As the Full Court said in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 at [47]:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
In the case before me the issue was identified in the reasons. The Tribunal considered the question of abusive behaviour by police and this particular issue, in my view, was also subsumed within the findings of greater generality. Ground one must be rejected.
Ground two – particular social group
Ground two alleged the Tribunal made a jurisdictional error as it failed to consider the applicant’s claim based on the applicant belonging to a particular social group. At Court Book 397 the Tribunal found as follows:
No claims have been raised, nor are any ascertainable by the Tribunal, of a well-founded fear of persecution by virtue of the Applicant’s race, nationality or membership of a particular social group. I find, therefore, that there is no fear of persecution on these grounds.
In support of his contention the applicant referred to two passages at Court Book 392. In the summary of the claims at the primary stage the Tribunal noted:
he claims to belong to a group “who are not powerful in the destructive violence in the Punjab”.
The applicant said that this was a crude attempt by him to claim that he was a member of a particular social group.
At Court Book 402 the Tribunal stated:
The Applicant’s situation, as he has presented it in his evidence, may be epitomised as that of the small person waging a futile struggle against the forces of authority and privilege.
The applicant said that this suggested the Tribunal recognised that the notion of a particular social group was before it and the Tribunal identified a particular social group “subconsciously”.
In his amended application the applicant asserted he belonged to the following particular social groups:
(a) A family (extended family) in Patiala having or having had the tenancy of a shop belonging to Mr. Naval Kishore Sharma.
(b) Citizens alleging bias on the part of the judiciary
(c)Citizens persistently and publicly complaining of police partisanship and brutality
(d)Tenants in Punjab whose landlords want the tenants out and have bribed the police or Small business owner Tenants in Punjab whose landlords want the tenants out and have bribed the police
(e)A small person waging a struggle against authority and privilege
The respondent submitted that no claim of any particular social group was asserted before the Tribunal. Nor did any obviously arise on the material before the Tribunal so as to require consideration.
The Full Court said the following in NABE at [58]:
The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it. … There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated.
At [60] in considering the decision of Selway J in SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at 368 the Full Court in NABE went on to say:
His Honour, in our view, correctly stated the position when he said (at [18]):
‘The question, ultimately, is whether the case put by the appellant before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it.’
This does not mean that the Tribunal is only required to deal with claims expressly articulated by the applicant. It is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it.
At paragraph 61 it says:
We are of the view that the observations by Merkel J in Paramananthan, by the Full Courts in Sellamuthu and Sarrazola (No 2) and by Cooper J in SDAQ are consistent with the proposition that the Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it. The Tribunal’s obligation is not limited to procedural fairness in responding to expressly articulated claims but, as is apparent from Dranichnikov, extends to reviewing the delegate’s decision on the basis of all the materials before it.
A proper and fair reading of the material before the Tribunal, in my view, does not suggest that any of the harm alleged by the applicant was motivated by his membership of a particular social group. As the respondent said, there was no evidence that the applicant was targeted because of his real or perceived membership of any particular social group. In my view no case based on particular social group Convention grounds was expressly made nor does it clearly arise on the materials before the Tribunal. This submission to the Court, in my view, is an attempt to construct particular social groups retrospectively. It must be dismissed.
Although it is unnecessary because of my findings above to deal with the question of relief, the respondent submitted that if I found jurisdictional error, relief should be refused in the exercise of the Court’s discretion. This is because of the delay in bringing an application to this Court. Reference was made to the three year delay between the Tribunal decision in August 1996 and the claim made to the Court in the Muin and Lie class action on 13 August 1999
(see Muin v Refugee Review Tribunal (2002) 190 ALR 601).
During that period, the applicant requested the then Minister to exercise his humanitarian discretion under s.17 of the Migration Act 1958 (Cth) (the Act) in August 1996. But that request had been refused by June 1997. Thus even allowing for that, there was a gap of two years before the applicant sought review of the Tribunal decision in the Court system.
Had I found jurisdictional error this would have been a case in which I would have had been minded to refuse relief because of the delay in coming before the Courts. Such a decision is unnecessary given the findings that I have made.
Conclusions
Counsel for the Minister has submitted that the application must be dismissed as no reviewable legal error has been disclosed. I agree. The Tribunal clearly was unable to find that the applicant suffered any Convention based harm in the past arising out of actions of his landlord and the subsequent progress of his case through the Courts. It was then unable to find that there was any real chance that he would suffer such harm at the time of the decision or within a reasonably foreseeable time in the future. These findings were reasonably open to the Tribunal on the material before it.
I am satisfied the Tribunal made no legal error going to jurisdiction in coming to its decision. In the circumstances, I dismiss the application.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: K Thynne
Date: 24 May 2005
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