S1594 of 2003 v Minister for Immigration
[2006] FMCA 720
•23 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1594 of 2003 v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 720 |
| MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – Applicant alleged Tribunal failed to address claim and consider evidence arising on material before the Tribunal – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.474; 483 |
| NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 219 ALR 27 WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 |
| Applicant: | APPLICANT S1594 OF 2003 |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG672 of 2004 |
| Judgment of: | Emmett FM |
| Hearing date: | 9 May 2006 |
| Date of last submission: | 9 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 23 May 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr L. Karp |
| Counsel for the Respondent: | Ms M. Allars |
| Solicitors for the Respondent: | Ms S. Goodman, Blake Dawson Waldron Lawyers |
ORDERS
That the Applicant be granted leave to add as a Second Respondent nunc pro tunc the Refugee Review Tribunal.
That the Refugee Review Tribunal be joined as Second Respondent.
The application before this Court is dismissed.
That the applicant pay the First Respondent’s costs in an amount of $6,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG672 of 2004
| APPLICANT S1594 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.483 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) decided on 31 January 1996 to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) not to grant a protection visa to the applicants.
The applicant is a 46 year old male who claims to be a citizen India of and of Punjabi ethnicity and Sikh faith (“the Applicant”).
The Applicant has a spouse and 2 sons who were residing in India when the Applicant left India.
The Applicant arrived in Australia on 4 September 1994, having legally departed from Indira Gandhi International Airport, Dehli, India on a passport issued in his own name. The Applicant claimed that an agent helped him obtain his travel documents.
On 30 September 1994, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
The Applicant claimed that he feared persecution by the Indian government, police and authorities by reason of his Sikh religion and support of the Akali Dal political party.
On 24 July 1995, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 24 August 1995, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 31 January 1996, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
Tribunal proceeding
The Applicant gave evidence at a Tribunal hearing on 19 January 1996, assisted by an interpreter.
The Tribunal decision was made on 31 January 1996, prior to the introductions of ss.91R, 422B and 424A of the Migration Act.
The Applicant’s claims and the Tribunal decision are accurately set out in the written submissions for the First Respondent as follows:
“2.1 The applicant, who is a an Indian citizen of Sikh ethnicity, sought a protection visa on the ground that he had a well founded fear of persecution on the grounds of religion, political opinion and race.
2.2 The Tribunal found that due to inconsistencies between the evidence he gave in his application, the departmental interview and the Tribunal hearing, the applicant was not generally credible.
2.3 In relation to the claim of persecution on the ground of religion, the Tribunal found that on the applicant’s own evidence he had not experienced difficulty in practising his Sikh religion in India and if a “CIB” person attended, he could worship at any other temple.
2.4 In relation to the claim of persecution on the ground of political opinion and/or race, the Tribunal accepted that:
(i) the applicant’s family home was partly burned down in the riots in 1984, although the family was not personally injured and obtained police protection;
(ii) the applicant took part in some demonstrations in Delhi with Akali Dal members; and
(iii) his brother was arrested in 1986, left India in 1986, and now lives in Japan.
2.5 However the Tribunal:
(i) found that the applicant’s participation in the Akali Dal was minimal;
(ii) found that he knew nothing about the aims of the Akali Dal Mann group;
(iii) rejected his evidence as to police interest in him;
(iv) found his oral evidence as to police interest in him was inconsistent, and concluded that the police were not interested in him in 1993-94 because he was relatively easy to find, living in the same house and working for the same employer;
(v) found that since he was issued with a passport in his own name and left India legally, that the authorities were not interested in him at the time of his departure;
(vi) rejected the applicant’s evidence that he was a witness against Mr Bhagat, as lacking credibility; and
(vii) found that the letters from his wife may be fabrication and were at most evidence that the authorities had made inquiries of his family about him since his departure, and were not evidence that the reason for those inquiries was his involvement in political activities.
2.6 The tribunal concluded that the applicant would not face a real chance of persecution on the ground of religion, political opinion, or race, and was not a person to whom Australia has protection obligations.”
The proceeding before this court
On 11 March 2004, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision. Pursuant to Orders made on 15 July 2004, the Applicant filed an amended application on
7 October 2004.
The Applicant was represented by Counsel before this Court.
By consent, the Applicant was granted leave to file in Court a further amended application relying on the following ground:
“The Tribunal committed jurisdictional error of law in that it failed to consider and decide upon the applicant’s claim that he was of interest to the Indian police because of his participation in demonstrations in support of Sikhs.”
In support of this ground and as particulars of it, Counsel for the Applicant, Mr Karp, referred in detail to: (i) the notes made by the Delegate of the Departmental interview with the Applicant on 14 July 1995; and (ii) the Applicant’s protection visa application in which the Applicant stated the following:
“Third Incident,
Recently, this third incident happened when Government of India used bulldozer and demolished the Sikh Historical Gurudwrura Majnu-Ka-Tilas. When we made protest, the police arrested us. Police took in custody and tortured me. Please see my picture in the attached news cutting while protesting.” The photograph referred to by the Applicant in that passage is said to be found at Court Book 26 where the Applicant asserts he is the figure on the furthest left of the photograph.
In relation to (i), the Departmental interview notes disclose that the Applicant asserted:
a)that he volunteered to put up posters for the Akali Dal Mann group in 1991;
b)that it was a spontaneous activity to put up the posters and that he did not know anything about them except that they were doing good for the Sikhs;
c)that he did not put the posters up because he was a member of that group, rather, as a result of his house being burnt down, that “it was in my heart” and because the Akali Dal was the only party who would fight for the Sikhs;
d)that he was not part of a group of friends or relatives involved in the Akali Dal;
e)that someone complained that he was putting up posters but that, when the police came to his home and asked for him, his wife told them that he was not at home and they left;
f)that the police first came in mid 1993 and returned after 1 week, although again they left;
g)that the police came looking for him 5 or 6 times between mid 1993 until 1994 when he left India.
In oral evidence to the Tribunal, the Applicant stated that he was involved in several protests from 1987 and shouted slogans during the protests. However, he did not remember exact dates of the protests or when he was arrested, although the Departmental interview notes record that it was in New Delhi after the riots in circumstances where he was saying slogans outside the temple as part of a protest group. He asserted that several people were arrested during that incident and were released uncharged after 2 hours. However, the Applicant conceded that it may be that he was detained because the police were seeking to control public order.
The Applicant stated that he was also protesting on 21 July 1994 and that that was the time at which the photograph was taken that is referred to in his protection visa application and at paragraph 17 above.
Counsel for the Applicant contended that these statements by the Applicant at his Departmental interview and his protection visa application made it clear that the Applicant was claiming that he had been harassed and arrested by police and faced further harassment and arrest by police, if he were to return to India, because he had engaged in demonstrations and put up posters. Counsel for the Applicant submitted that such action was persecution for religion or political opinion or both because he is a Sikh and that the Tribunal failed to consider such claims, thereby committing jurisdictional error.
The Applicant relied on the Full Court of the Federal Court decision in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 219 ALR 27, in particular at 45-46 where Black CJ, French and Selway JJ, in a joint judgment stated:
“[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. It follows that if the tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome. It may be “subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected”: Applicant WAEE at [47]. But as the Full Court said in WAEE (at [45]):
…If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by the probative material, the tribunal will have failed in the discharge of its duty, imposed by s414 to conduct a review of the decision. This is a matter of substance, not a matter of the form of the tribunals published reasons for decision. ”
In considering the Applicant’s claim in respect of persecution because of his religion, the Tribunal noted that the Applicant said that a Sikh may worship at any temple so that changing temples was not a problem for him. For those reasons, the Tribunal found that if the Applicant returned to India he would not face a real chance of persecution on the ground of his religion.
In relation to the Applicant’s claim of fear of persecution because of his political involvement in Akali Dal, the Tribunal accepted that he took part in some demonstrations in Delhi which sought compensation for the victims of the 1984 riots with Akali Dali members in 1993. The Tribunal noted that the Applicant said at the hearing before it that he had been arrested at a demonstration with 14 others of the Akali Dal Mann group in September 1993, detained for two hours, beaten and released. It also noted that he stated that from 1992 the police starting visiting his home to look for him and have continued to do so, even after his departure from India.
Ultimately the Tribunal found that the Applicant did not face a real chance of persecution from his involvement with the Akali Dal as his participation was marginal. The Tribunal noted that he was not a party member and had participated spontaneously as an individual in protests. The Tribunal noted that the Applicant stated that he had in fact joined the Akali Dal in 1991 and participated as a member of the Akali Dal Mann faction. However, the Tribunal noted that the Applicant knew little of the aims and leadership of the party or faction. It noted that the Applicant had stated in his Departmental interview that he knew nothing of the aims of the Akal Dal group, other than that their main objective was to get compensation for the victims of the 1984 riots.
The Tribunal rejected the Applicant’s evidence as to police interest in him. It identified the inconsistencies in the Applicant’s evidence that it found were not possible to reconcile. The Tribunal noted the Applicant’s various assertions of saying slogans outside a temple being arrested several times in an open air camp in the Departmental interview. However, the Tribunal noted that, in oral evidence, the Applicant had stated that he had been detained by the police once on 29 June 1993. The Tribunal noted that the Applicant “gave completely different answers at different stages of the hearing in respect of matters relevant to his claim that the police were interested in him and so the Tribunal is unable to withdraw any conclusions as to which answer is correct.” The Tribunal went on to identify other differences in the Applicant’s Departmental interview and the oral evidence before the Tribunal.
The Tribunal also had regard to the fact that the Applicant was issued with a passport in his own name and left India legally in concluding that the authorities were not interested in the Applicant at the time of his departure. The Tribunal noted that, in relation to this issue, the independent country information before it disclosed that a passport would not issue if a criminal record existed and that “trouble makers” would be subject to more thorough police checks than would be regular passport applicants, which meant Sikhs faced delays in obtaining passports. It also noted that Sikhs from the Punjab, known as a centre of Sikh political activists, would face especially stringent police checks when applying for passports.
The Tribunal ultimately concluded that the Applicant would not face a are real chance of persecution on the grounds of religion, political opinion, race or any other Convention related reason if he were to return to India and for those reasons the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
Counsel for the Applicant submitted that the omission of the Tribunal to make findings, particularly in relation to the Applicant’s involvement in protests and putting up posters, was a failure to deal with a claim that plainly arose from the evidence and material before the Tribunal. Counsel for the Applicant submits that such a claim is plain from answers given by the Applicant at his Departmental interview, referred to above at paragraph 18, and his assertions in his protection visa application, referred to above at paragraph 17.
The First Respondent submitted that there is a distinction between a claim or integer of a claim and evidence in support of a claim. The First Respondent submitted that the Applicant claimed that he feared persecution because of religion or political opinion by police in India and that political opinion was connected with the Akali Dal Mann faction or the Akali Dal. The First Respondent submitted the Tribunal considered the claim of persecution because of religion and because of political opinion. The First Respondent submitted that the Tribunal considered in detail evidence advanced in support of each claim and did not accept all the oral evidence or all the documentary evidence provided by the Applicant.
The First Respondent submitted that, where the Tribunal had found that it rejected the Applicant’s evidence as to police interest in him, it was not necessary for the Tribunal to speculate as to whether or not erecting posters and participating in demonstrations could have led to harassment by the police. The Tribunal found that the Applicant did not suffer harm in India before he left. The First Respondent submitted that there was no suggestion that the Tribunal did not consider or properly apply the real chance test.
It is clear from the Tribunal’s decision that the Tribunal was aware that the Applicant took part in some demonstrations in Delhi, and indeed it accepted that evidence. It also noted that the Applicant had asserted in his Departmental interview that he had been arrested once with several others for chanting slogans outside a temple in year which he could not remember. The Tribunal also noted its difficulty in reconciling the Applicant’s assertion in the Departmental interview that he participated in demonstrations in Delhi 2 to 5 times only, with his statement at the hearing that he participated in demonstrations in Delhi 7 to 8 times a year for several years.
The Tribunal noted that, because of the Applicant’s completely different answers at different stages of the hearing in respect of police interest in him, it was unable to draw any conclusions as to which of his answers was correct. However, the Tribunal did note that, if the police were interested in the Applicant from 1993 to 1994, he was relatively easy to find, given that generally he lived in the same house and worked for the same employer, as he had done for many years. It noted that the Applicant had said that after he was detained he went to his family home in Delhi every alternate night because of the police visits.
The Tribunal made clear its reasons for rejecting the Applicant’s evidence as to the police interest in him and identified with particularity the facts upon which it relied in reaching that conclusion. At the heart of the Tribunal’s rejection of the Applicant’s evidence was its finding that the Applicant was “not generally credible”. That was a finding of fact that was open to the Tribunal on the evidence and material before it and for which it provided reasons.
To the extent that the Applicant contends that the passage referred to in paragraph 17, above asserts a claim not considered by the Tribunal, such contention is rejected. It is apparent from the findings of the Tribunal that, for reasons it gave, it did not accept that the Applicant was detained and tortured as claimed and did not accept that the photograph proved otherwise. Those were findings of fact that were open to the Tribunal on the evidence and material before it.
In relation to the matters identified by Counsel for the Applicant as arising from the Departmental interview (and referred to above at paragraph 18), the First Respondent contends that they are simply evidence that the Tribunal considered in concluding that it was not satisfied that the Applicant had a well founded fear of persecution for a Convention reason. The Tribunal dealt specifically with the Applicant’s claims of fear of persecution because of his religion and involvement with the Akali Dal party or its faction. They were rejected for the reasons referred to in detail above.
In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at 641, the Full Court stated that:
“It is plainly not necessary for the tribunal refer to every piece of evidence and every contention made by an applicant in its written reasons. …there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 62 ALD 225; 180 ALR 1 at [87]-[97]) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a Court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. …Its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law. 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.”
Certainly a Tribunal is obliged to deal with any claim that is raised squarely on the material before it.
However, in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 390, Callinan J stated as follows:
“A particular fact may assist, together with other facts, a decision-maker to reach a decision. The decision might still, in the circumstances have been reached absent one or more material facts which the decision-maker has relied on for a decision, or referred to in the reasons for it. But as to whether or not certain facts are material, the extent to which they are or are not material will depend upon how much weight the decision-maker thinks should be placed upon them.”
The First Respondent submits that the Applicant’s involvement in demonstrations and putting up posters is part of the evidence in support of his claim of persecution by police because of his religion and/or political opinion and not a separate claim squarely raised on the material before the Tribunal.
It is clear that a Court must not construe the decision of the Tribunal “with an eye keenly attuned to error” (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272; Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 at [15]; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at 641).
It has dealt with the Applicant’s claim of fear of persecution by the police because of his political opinion and religion in being a Sikh, having considered all the material before it, and concluded that the Applicant was not of interest to the police. The Tribunal’s decision makes it clear it had close regard to the notes of the Departmental interview with the Applicant in reaching those conclusions. It was the Applicant’s assertions in the Departmental interview that the Applicant contends gave rise to a claim of fear of persecution by the police as a Sikh by reason of that conduct.
The Tribunal did not err in omitting to make a specific finding as to whether or not the Applicant was of interest to the police because of his participation in demonstrations in support of Sikhs. On a fair reading of the Tribunal decision, it is quite plain that the Tribunal was aware of the Applicant’s assertions of having participated in demonstrations and having put up posters. Indeed, as stated earlier in these reasons, the Tribunal accepted that the Applicant participated in demonstrations and it referred specifically to the material in which the Applicant stated he had put up posters. However, it concluded that the Applicant was not of interest to the police. That is a finding of fact that was open to the Tribunal on the material and evidence before it and for which it provided reasons.
Accordingly, the Applicant’s ground of review, that alleges that the Tribunal failed to consider and decide upon the Applicant’s claim that he was of interest to Indian police because of his participation in demonstrations in support of Sikhs, is not made out.
Accordingly, the Tribunal’s decision is not affected by error and the application before this Court is dismissed with costs.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: S. Choo
Date: 22 May 2006
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