S1647 of 2003 v Minister for Immigration - [2004] FMCA 952

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S1647 of 2003 v MINISTER FOR IMMIGRATION

[2004] FMCA 952

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Dan v Commissioner of Taxation (C’th) (No.2) [2000] FCA 752
Kordan v Commissioner of Taxation [2000] FCA 1807
Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Re Refugee Review Tribunal, Ex parte H [2001] HCA 28
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Htun v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 194 ALR 244
Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196
Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469
Muin v Refugee Review Tribunal, Lie v Refugee Review Tribunal [2002] HCA 30

Applicant:

APPLICANT S1647 of 2003

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG721 of 2003

Delivered on:

23 November 2004

Delivered at:

Sydney

Hearing date:

23 November 2004

Judgment of:

Barnes FM

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Ms R. Francois

Solicitors for the Respondent:

Clayton Utz

ORDERS

That the application is dismissed.
That the Applicant Mother pay the Respondent's costs set in the amount of $4250.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG721 of 2004

APPLICANT S1647 of 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 11 June 1998 affirming a decision of a delegate of the respondent not to grant the applicants, a mother and son, protection visas. Only the applicant mother made specific claims under the Refugees Convention. The applicants, who are citizens of India, entered Australia on 22 March 1997 and lodged the application on 19 June 1997. The applicant mother claimed to fear persecution in India primarily on the basis of an imputed political opinion by reason of her husband's connection with the Akali Dal Party. In a statement attached to her protection visa application she described her husband's activities and claimed that after he left India in 1995 she was harassed by the police. It was claimed that she moved around the country, was questioned on one occasion, taken to a police station, locked in a cell and slapped and kicked, returned to her original home, was harassed again and detained and beaten and questioned and that she was constantly taken in for questioning and treated in the same manner. She claimed that she went into hiding. Towards the end of 1996 she moved residence but again experienced police harassment. She moved again to Amritsar in 1997. Again she was harassed by the police. She claimed that they continued to harass her because they suspected that her husband was hiding in India and she was suppressing his whereabouts. She was advised by her parents-in-law to leave the country and join her husband who was, at that time, in Australia.
She claimed that if she returned to India it would be to the Punjab. She would not be safe there as she had been arrested and interrogated by the police many times because she was a Sikh and because they suspected her of being a member of the Akali Dal and regarded her husband as an informant of the Akali Dal.
The application was refused on 25 June 1997. Essentially the delegate did not believe her claims in light of country information in relation to the then current situation in India and in the Punjab. The country information indicated that the Akali Dal was a mainstream political party and was not suspected of being involved in militant activities. Recent reports indicated improvements in the Punjab, particularly that abuses by police had declined and that in the recent elections the Akali Dal Party had formed part of the coalition government.
The applicant sought review by the Tribunal on 24 July 1997. The applicant had the assistance of a migration agent and provided a written submission attaching letters, newspaper clippings and other material. In that written submission issue was taken with the decision of the delegate and the reliance on independent country information. Also submitted to the Tribunal was documentation in support of the applicant's claim including a medical report, a report from STARTTS, press clippings from India, an extract from an earlier Tribunal decision and an extract from a decision of the Refugee Status Appeals Authority of New Zealand.
The applicant was invited to and did attend a hearing after some postponements to allow for her then ill-health. According to the Tribunal reasons for decision during the hearing, which was conducted on 18 May 1998, the applicant told the Tribunal that she did not know what faction of Akali Dal her husband may have been associated with but she feared if she returned to the Punjab she would be suspected of belonging to the Akali Dal, that because she was a Sikh the authorities would not accord her protection and also that she felt great shame because of an incident in a police station at Amritsar where she was physically assaulted. She feared that because of that she would not have a place in her community because she would be considered a prostitute. She also claimed that she could not live elsewhere in India, in particular outside the Punjab, because Sikhs were discriminated against and the Delhi police would require a clearance from the Punjabi police and learn that she had a record. She claimed finally that she had no house or family anywhere else in India but in the Punjab.
The Tribunal recorded that the applicant mother was the only one to make a claim under the Refugees Convention and that her son's claims were dependent on hers. It detailed country information in relation to the present situation in India and in the Punjab. It accepted that the applicant came to Australia to be reunited with her husband. It also accepted that the period following her husband's departure from India in June 1995 until she left in March 1997 would have been difficult for her. She and her young son remained in India living mostly with husband's family. The Tribunal accepted that she was at some time questioned by the Punjabi police and anally assaulted by police officers in the incident she described and that she had suffered physical pain and mental anguish as a result.
However the Tribunal was unable to accept that the applicant's claim of police surveillance, arrests and periods of detention was entirely accurate. It found that she had exaggerated her claims in relation to the nature and extent of the police interest in her and, while some of the incidents may have occurred, overall her fears of persecution were not well founded. The Tribunal gave reasons for the findings in relation to the credibility of the applicant’s claims including that she was unable to say which faction of the Akali Dal Party her husband had been associated with, that she claimed that the same junior police officer was always present each time she was questioned by the police in various regions in India and that even though she informed the police each time her husband had left the country they did not believe her. Also, country information indicated that the Akali Dal was a mainstream Sikh political party and was in a coalition government and did not suggest that individuals associated with the Akali Dal Party would recently have been treated in this manner because of their political activities. In relation to the claim of anal physical assault by the police, which was accepted by the Tribunal, the Tribunal did not accept that that was for a Convention reason having regard to matters such as the fact that the applicant gave evidence that nothing had happened to her before her husband's departure and that she had no political profile.
The Tribunal also had regard to the future. It considered first the possibility that the police might persecute the applicant because of the previous assault which it accepted had occurred. In that regard the Tribunal had regard to evidence of the Indian Government's attempts to bring the Punjabi police to account and their success in that regard. It found that the attempts were genuine and continuing and that the applicant could obtain effective State protection. It also found that if she felt she was at risk from an individual officer or group of officers, she would be able to take advantage of avenues now available to investigate actions by the police.
The Tribunal also found that it would be open to the applicant to relocate within India. It considered that she could reasonably relocate to avoid contact with both the police she claimed had harmed her in the past as well as with people who may know that she was detained at a police station overnight and assaulted. It had regard to the fact that she had been brought up in Delhi and worked professionally there before her marriage and move to the Punjab and to independent information that Sikh people can and do live successfully outside the Punjab. It also had regard to the barriers to relocation raised by the applicant, in particular, her claim that she could not relocate because police in Delhi would require a police clearance and would learn that she had a record and had been on bail. However, the Tribunal did not accept on the evidence before it that the applicant was ever charged with an offence. It did not accept her claims about periods of detention. It had regard to the fact that there was nothing in her account to suggest that she was ever released on bail. For those reasons it did not accept she had a police record which could impair her ability to live in a Sate other than the Punjab.
With reference to the claim that she may be ostracised because of the assault the Tribunal accepted that traditional small communities may look down on the applicant because of what they thought may have happened to her but was not satisfied that what she may experience in that regard would amount to persecution within the meaning of the Convention, it not being sufficiently systematic to amount to persecution. Further the applicant could relocate to a place where the circumstances of her past would not be known to those around her.
The Tribunal also had regard to general submissions she had made about the more limited provision of counselling and support services for victims of assault in India in the context of considering relocation and generally in relation to the applicant's claims to have a well-founded fear of persecution. The Tribunal did not consider that differences in the standard of such community services brought the applicant's claims within the Refugees Convention, there being no evidence that her access to whatever may be available in India would be at all influenced by any of the Convention reasons. It found that whether or not services of the standard existing in Australia were available in an applicant's country of nationality did not of itself establish that she had refugee status.
The applicant filed an application in this court nearly six years after the Tribunal decision. In that application it is stated briefly without elaboration that the applicant was a party to a class action. The application raises a number of very generally expressed and unparticularised grounds of review. An amended application was filed on 18 October 2004. The application contains some grounds which purport to relate to the particular circumstances of the applicant and then lists unparticularised and very general grounds.
The applicant is unrepresented. She asked the court if her husband could address on her behalf and the court allowed that to happen. The applicant indicated to the court that she had nothing to add to what her husband said. She filed written submissions which raise matters other than those particularised in the amended application and I have considered all of the material before me in considering whether any jurisdictional error is established on the material before the court.
Turning first to the grounds addressed in the applicant's written submission. It commences with a misconceived reference to the former s476 of the Migration Act. The first claim is a claim of actual bias. In the amended application there is a claim of bad faith and that the Tribunal gave a decision which was preset in the back of its mind. The applicant bears a heavy onus in establishing a claim of actual bias. There is nothing in the material before the court to establish actual or indeed apprehended bias. Proof of bad faith also necessitates proof of extreme circumstances: Dan v Commissioner of Taxation (C’th) (No.2) [2000] FCA 752 at 34. It is a serious allegation which should not be made lightly: Kordan v Commissioner of Taxation [2000] FCA 1807. There is nothing in the material before the court to support an assertion that the Tribunal acted in bad faith or was biased.
The applicant's written submissions in this regard take issue with the merits of the Tribunal findings. This does not establish actual bias or bad faith. In particular, the applicant complained that while the Tribunal accepted that she was assaulted and harassed by the Punjabi police it did not consider that this was Convention-based persecution. She was not satisfied with that comment for reasons which she gave, addressing the merits of the Tribunal decision. That disagreement with the factual findings of the Tribunal does not establish bad faith or bias. Factual findings are matters for the Tribunal.
The applicant also complained that the Tribunal ignored the medical certificate which she provided without any investigation. The medical certificate to which she referred is a certificate from a doctor in Australia in relation to the complaints which she reported including a complaint of anal assault and the doctor's observations which he found consistent with that possibility. He suggested that she was upset and suffering from post-traumatic stress disorder. However it is notable that the Tribunal did in fact accept that the applicant had been assaulted in the particular way that she claimed in this respect and it did not ignore the medical certificate in that regard.
Similarly the complaint that the Tribunal did not consider the letter from the STARTTS counsellor, that is, the letter dated 22 April 1998 that was provided at the Tribunal hearing from a counsellor with the Service for the Treatment and Rehabilitation of Torture and Trauma Survivors in relation to the initial and limited contact that the counsellor had had with the applicant for whom she had not yet provided counselling. The letter refers to the applicant’s complaints and symptoms as reported to her by the applicant. The Tribunal had regard to this information and its treatment of this information does not establish any bad faith or bias on its part.
There is nothing in the material before the court to indicate that the Tribunal gave a decision which was preset in the back of its mind as contended or that it had a mind incapable of alteration: (see MIMA v Jia Legeng (2001) 205 CLR 507 at 532). Nor is there anything in the material before me to establish that this is a case in which a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question to be decided, Re Refugee Review Tribunal, Ex parte H [2001] HCA 28 and also see VFAB v MIMIA [2003] FCA 872.
As part of the written submission in relation to actual bias the applicant then contended that the Tribunal did not invite her to comment on the country information. This issue was addressed further in the oral submissions made to the court. It was contended that the Tribunal did not discuss the country information with the applicant in the course of the hearing, in particular country information consisting of the material that the applicant had provided and also the other country information relied on by the Tribunal.
First, the factual basis for such a claim is not established. The only evidence of what occurred in the Tribunal hearing is the Tribunal reasons for decision. There is no transcript of the Tribunal hearing before the court. On the Tribunal account of what occurred and the manner in which it records what the applicant claimed this is not a case in which I consider it is appropriate for the court to draw an inference, as in effect I am being invited to do by the applicant, that country information was not discussed in the course of the hearing. Moreover, as was pointed out by counsel for the respondent, insofar as the applicant complains that critical matters relevant to the decision were not brought to her attention, it is clear from the delegate's reasons for decision (which relied on country information and made findings in a similar way to those ultimately made by the Tribunal in relation to the credibility of the applicant's claims because of country information about the current situation of the Akali Dal and in the Punjab in particular) that the critical issues were in fact known by the applicant and indeed were addressed in her migration agent's submission to the Tribunal.
In those circumstances, whether put in terms of bias or a lack of natural justice, I am not satisfied that it has been established that there was any jurisdictional error in the manner in which the Tribunal dealt with country information.
Associated with this claim was a claim that the Tribunal did not take into account the information which the applicant had put before it. The Tribunal is obliged to have regard to the integers of the applicant's claims and in this regard must not fail to take into account relevant considerations (see Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323, Htun v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 194 ALR 244 and Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196). However, in this instance it has not been established that the Tribunal failed to take into account relevant considerations. The Tribunal is not obliged to refer to or address all the material relied on by an applicant to support his or her claims and items of evidence are to be distinguished from integers of the applicant's claims: (see Paul and Htun and also MIMA v Singh (2000) 98 FCR 469).
In particular the Tribunal did not, as I have indicated, fail to have regard to the STARTTS report. The decision of the New Zealand Refugee Status Appeals Authority that was provided to the Tribunal in connection with the application was not relevant to a determination of the applicant's claims and the Tribunal was not obliged to address it. In oral submissions the applicant referred to a brief extract from another decision of the Tribunal in relation to another applicant whose husband was associated with Akali politics. This is not material that compels a particular conclusion by the Tribunal before whom this applicant's claims were considered. The Tribunal was not obliged to reach a decision consistent with the earlier Tribunal decision in relation to another applicant.
The applicant's written submission also complained generally about the Tribunal treatment of the issue of relocation. This amounts to a claim that the Tribunal failed to properly consider whether the applicant could relocate because the police had found her anywhere else she had lived in India. However, the Tribunal did address her stated concerns. The issue of relocation was raised with her in the hearing. It did not accept all her evidence about past police action. She claimed that if she moved the police would undertake a check and find her police record but for the reasons which it gave, to which I have referred, the Tribunal did not accept the claim that she had a record. It also found in relation to her claim of unwarranted police harassment that there was effective State protection.

The applicant also complained that the Tribunal did not accept that she was persecuted because of her husband's political opinion. This claim seeks merits review. She raised an unclear issue about the treatment of inconsistent claims and contended that there was a failure to comply with s424A of the Migration Act. This claim is not clarified but there is nothing in the material before me to establish that there was a failure by the Tribunal to comply with s424A. The Tribunal is not obliged to put its thought processes to the applicant under s424A and the independent country information would fall within the 424A(3) exception to the s424A(1) obligation.
The applicant also claimed that the circumstances were on all fours with the decision of the High Court in Muin v Refugee Review Tribunal, Lie v Refugee Review Tribunal [2002] HCA 30. In oral submissions she complained (through her husband) that certain of the Part B documents were not before the Tribunal, those documents referred to in oral submissions being the decision in Chan v MIMA (1998) 88 FCR 404 and the text of Hathaway, The Law of Refugee Status.
However, the applicant has not established a factual basis for a claim based on Muin. First, as pointed out by counsel for the respondent, the information relied on by the delegate was in fact adverse information (not favourable information) and the Tribunal's reasoning discloses that it did not believe the applicant for reasons which included those articulated by the delegate based on the Part B information. More generally the applicant has not established the factual matrix which is necessary to succeed on the basis which was considered in Muin, in particular she has not filed any evidence suggesting that the Tribunal did not receive the Part B documents referred to by the delegate, that she was mislead into believing that the Tribunal had considered any particular relevant information and that as a consequence that she did not ensure that such information was placed before the Tribunal. Finally, in fact the decision of Chan is one of the decisions discussed generally in the introduction to the Tribunal reasons for decision. The relevance of Hathaway to this claim is not clarified in the applicant's submissions.
In the oral submissions today the applicant elaborated on some of the claims that were made, in particular, the claim that the Tribunal did not refer specifically to the items of information that were put before it by the applicant. As I have indicated it is not necessary for the Tribunal to refer to individual items of evidence as distinct from understanding and addressing the claims that the applicant makes. The Tribunal did address all of the applicant’s claims. It did not accept all of those claims but insofar as it did not accept those claims the reasons which the Tribunal gave were open to it on the material before it. Credibility findings are a matter for the Tribunal par excellence. In particular, the fact that the applicant presented press clippings in relation to the treatment of women in India did not establish a jurisdictional error. The Tribunal considered and did accept a part of the applicant's claims about what occurred to her but, as I have indicated, found that the necessary Convention nexus was not present. In particular it was not satisfied that what she had experienced was because of her political opinion or any political opinion which may have been imputed to her. Moreover, it had regard to recent country information about the situation in the Punjab and the Akali Dal being in power, finding that there was not a real chance the applicant would face future harm at the hands of the police if she were to return to the Punjab for reasons of her religion or political opinion imputed to her having regard also to the fact that nothing had happened to her before her husband left and that she herself had no profile because of any political activities. In dealing with the applicant's claims in relation to mistreatment the Tribunal considered the basis on which these claims were put and no jurisdictional error is established.
The applicant claimed that because the Tribunal did not look at all the papers she provided she was denied natural justice. I have addressed the Muin aspect of this claim. Insofar as this is a complaint in relation to the information which the applicant submitted to the Tribunal, again, I have addressed that claim. It is not necessary for the Tribunal to address every item of evidence that is put before it. It did address the claims that the applicant made.
The applicant also claimed through her husband that the Tribunal did not consider the wife to be a part of the family unit, such that problems which the husband had experienced were problems which the whole family would experience. However, it is clear that the Tribunal understood the applicant's claims in relation to her own situation and in relation to her association with her husband as a member of his family. It dealt with her claims on the basis of that association as well as considering the individual mistreatment which she claimed that she had experienced.
The applicant also raised humanitarian grounds, particularly in relation to her son on the basis that he had spent his formative years in Australia. The Tribunal has no discretion on humanitarian grounds. That is a matter for the Minister and the humanitarian concerns which the applicant raises do not establish any jurisdictional error on the part of the Tribunal.
The applicant also took issue with the Tribunal finding in relation to whether there were factions of Akali Dal and whether all of those were part of the Government. Such complaints take issue with the merits of the Tribunal decision. Insofar as issue is taken with the extent to which the Tribunal relied on particular items of country information, in particular an Amnesty International report, the weight to be given to particular items of country information is a matter for the Tribunal.
It is, however, notable that in its discussion of country information in the Tribunal reasons for decision, the Tribunal had regard not only to information that may be seen as adverse to the applicant but also to information such as information from an Indian report on human rights practices for 1997 and the Amnesty International India submission to the Human Rights Committee concerning the implementation of articles of the International Covenant on Civil and Political Rights information which was provided to the Tribunal by the applicant detailing four incidents where woman had been raped or tortured sexually by police. The Tribunal accepted the particular incident complained of by the applicant. It considered her claim that she could be harmed by police because of their previous assault on her but found that there was now effective State protection for a person who felt at risk from an individual officer or group of officers and in the alternative found that the applicant could relocate. No jurisdictional error is established in the Tribunal treatment of the independent information. The applicant's complaint in effect takes issue with the merits of the Tribunal decision.
The applicant contended generally that the Tribunal failed to consider the applicant's position as a woman and the fact that women are not always treated properly in India. The Tribunal considered the applicant's claims in this respect. It accepted aspects of those claims, it did not accept other aspects of those claims. The submission that is made by the applicant today in that regard does not establish any jurisdictional error in the manner contended but rather takes issue with the Tribunal findings. In particular, the Tribunal did address the possibility of a claim based on membership of a particular social group, albeit that the submission that was made by the applicant's migration agent to the Tribunal was expressed primarily in terms of political opinion or imputed political opinion. The Tribunal considered the applicant’s mistreatment and her claim that because of what had happened to her she would be treated as though she was a prostitute and her son treated as a prostitute's son. It found that while small communities may look down on the applicant because of what they thought had happened to her the Tribunal was not satisfied that that amounted to persecution within the meaning of the Convention, it not being part of a course of systematic conduct against her either as an individual or as a member of a particular social group and because it would be open to her to live elsewhere where the circumstances of her past may not be known to those around her. These findings sufficiently addressed this aspect of her claim. I have considered all of the material before me and all of the claims made by the applicant. No jurisdictional error has been established and the application must be dismissed.

RECORDED : NOT TRANSCRIBED

The applicant has been unsuccessful and the respondent seeks that she meet the costs of these proceedings. There is nothing in the material before me to warrant a departure from the normal rule that an unsuccessful applicant should meet the costs of the respondent. The applicant referred to her inability to pay the amount sought. However, that is not a reason for not awarding an appropriate amount of costs, although it may be something taken into account by the respondent in determining how and when to seek to recover any costs. In light of the nature of this and other similar matters I consider that an appropriate amount is $4250 and that the costs should be met by the applicant mother.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 13 December 2004.