S2015 of 2003 v Minister for Immigration
[2005] FMCA 737
•23 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S2015 OF 2003 v MINISTER FOR IMMIGRATION | [2005] FMCA 737 |
| MIGRATION – RRT decision – Indian Sikh – claimed persecution by police due to membership of Sikh separatist movement – no failure to consider “particular social group” claim – no other error found. |
| Migration Act 1958 (Cth), ss.415, 474, 477, 483A, Part 8 Judiciary Act 1903 (Cth), s.39B |
| NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 S1573 of 2003 v Minister for Immigration [2005] FMCA 47 SZAWW & Ors v Minister for Immigration [2003] FMCA 479 SZDZV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 416 Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 |
| Applicant: | APPLICANT S2015 OF 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 2826 of 2004 |
| Judgment of: | Smith FM |
| Hearing date: | 23 May 2005 |
| Delivered at: | Sydney |
| Delivered on: | 23 May 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr Silva |
| Solicitors for the Applicant: | Silva Solicitors |
| Counsel for the Respondent: | Mr J.A.C. Potts |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs in the sum of $5000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2826 of 2004
| APPLICANT S2015 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application under s.483A of the Migration Act 1958 (Cth) which challenges the decision of the Refugee Review Tribunal handed down on 24 June 1999. The Tribunal affirmed a decision of a delegate taken on 1 August 1997 refusing to grant a protection visa to the applicant. The applicant had arrived on a one-month business visa in December 1996 and applied for a protection visa on 29 January 1997.
The long delay between 1999, when the Tribunal made its decision, and the date when the present application was filed, 16 December 2004, was the subject of a submission by the Minister that relief should be refused, even if a ground for relief had been made out.
The applicant sought to explain his delay in an affidavit. He said that, on advice from the solicitors, Adrian Joel and Associates, who assisted him in his protection visa application and his appeal to the Refugee Review Tribunal he had “been part of the Muin & Lie class action”. The chronology of his joining that action and being involved in its proceedings does not appear in any evidence before me, but his involvement is not contested by the Minister. The applicant said that on 20 February 2004 Emmet J dismissed “the proceeding” in which he was identified with the same pseudonym as appears above: Applicant S2015 of 2003 [I note that at one stage in the present proceeding he also was given the pseudonym SZEKA]. Emmett J’s reasons have not been shown to me, but I assume they related to an individual application for an order nisi which had been remitted to the Federal Court. The applicant said in his affidavit and under cross-examination that after that proceeding was concluded, and although he was aware that further judicial review proceedings might be brought, on Mr Joel's advice he first attempted to obtain a decision by the Minister under s.417 of the Migration Act. He only commenced the present proceedings after being advised by a letter dated 3 September 2004 that his 417 application did not succeed.
I have noted the above matters, but have not found it necessary further to address the question whether relief should be refused by reason of the applicant's delay in commencing the present proceeding. This is because I have not been persuaded by his substantive grounds argued for relief.
The applicant's participation in previous judicial review proceedings has the consequence that the Court's jurisdiction under s.483A of the Migration Act to give relief under s.39B of the Judiciary Act 1903 (Cth) is not subject to any limitations under the provisions of ss.474 or 477 of the Migration Act. This is due to the interpretation of Sch.1 cl.8 to the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) which has been conceded by the Minister and accepted in this Court and the Federal Court (see SZAWW & Ors v Minister for Immigration [2003] FMCA 479 at [4], S1573 of 2003 v Minister for Immigration [2005] FMCA 47 at [4-8], and SZDZV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 416 at [12]). In these circumstances, I have addressed the present application by considering whether, on principles generally applicable under s.39B, the applicant has made out a ground for the issue of writs of certiorari and mandamus in relation to the Tribunal decision.
The applicant filed his original application and an amended application without the apparent assistance of lawyers, but in recent days has instructed his present solicitor, Mr Silva, who appeared today and was granted leave to file a further amended application. Mr Silva confirmed that the applicant no longer pressed any of the grounds previously pleaded in the earlier applications. Mr Silva made submissions on three grounds, which I shall address after indicating the nature of the applicant's claims for a protection visa.
The applicant's factual claims were narrated by Adrian Joel and Associates in their covering letter to the visa application, rather than in statutory declaration by the applicant. They said that these had been “advised” “in written instructions”. This narrative gave background information concerning the applicant and his family in the Punjab, where they had participated in activities involving their Sikh community, and then narrated the applicant’s claims to be a refugee. In my view, they were sufficiently summarised by the Tribunal as follows:
The applicant is a single, male Sikh in his mid-20's. In a written submission, prepared with the assistance of a registered migration agent, he claims to have been heavily involved in the Sikh separatist movement in India. He claims his father and other extended family members were also active in the movement. He claims he and his father were arrested several times by the police and tortured. He claims he was arrested at a large Sikh religious meeting in October 1990, tortured and released after 2 days. He claims the police came to his home on 5 November 1990 charged him with several murders, detained and tortured him for 15 day and then released him. He claims the police raided a meeting at his home on 25 November 1990 and killed one of his friends. He escaped. He claims he was arrested at a meeting in May 1991 at which another friend was shot and killed by the police. He claims he was released after payment of a bribe. He claims he was arrested again in January 1992 and release after 3 days. He claims his father disappeared in March 1992. He claims he was arrested at a meeting in about July /August 1993 at which another friend was shot and killed by the police who again charged the applicant with multiple murders. He claims he was again released after payment of a bribe.
Notwithstanding these events, the applicant completed secondary schooling in 1992. He claims he moved from his village to the city in August 1992 to live with relatives and undertook a 2 year diploma at an industrial training institute. He claims he maintained his involvement in Sikh separatist activities and attended a meeting in March 1994. He claims the police attacked the meeting and killed two of his friends. He escaped. He returned to the institute and graduated in July 1994. He claims he then travelled to Gujrat where he worked until October. He claims he left Gujrat because the police were asking his family about him. He claims he went to Nepal and worked there until "Barar was elected Chief Minister of the Punjab. My mother and relatives advised me to go abroad as they feared for my safety…My mother made arrangements for my passport through a travel agent. This is how I obtained my Australian visa".
The applicant travelled to Australia on a temporary business visa using a valid Indian passport which was issued in his real name on 18 November 1996. The photograph in the passport shows the applicant dressed in a collared shirt and tie and without a turban. His original application states that he left the country legally. The home address stated in the passport is the village where he lived with his family and his father's name is stated in full.
In relation to the applicant's claims, Mr Joel characterised their relevance to the Refugee's Convention as follows:
Our client is unwilling to return to India for reasons related to his political opinion. Essentially, his fear of return is informed by past experience of maltreatment at the hands of the Indian police who have, we understand, identified him as a Sikh militant. He further states that he has been tortured by the police, as have members of his family.
…
The applicant's account indicates that he has been subjected to a course of systematic and selective harassment which has been directed at him as an individual because of his identification as a Sikh Federation member. In the circumstances presented, the harm he fears - if returned to India - clearly constitutes persecution. He is, of course, out of his country and is unwilling to avail himself of the protection of the Indian government, since it is the Indian government that he fears will continue to persecute him.
Mr Joel also said in his letter of January 1997: “We have emphasised to our client the necessity for him to obtain corroborating documentation.” However, no corroborating documentation was presented by the applicant until close to a hearing conducted by the Tribunal in March 1999.
The delegate refused the visa application on 1 August 1997 for reasons which I need not analyse in detail. However, I note that they included extensive reference to country information concerning the then current position of Sikhs in the Punjab who had been supporters of Sikh separatism. Included in the delegate's reasons is the statement:
Mr (the Applicant) has not raised claims of a well-founded fear of persecution by virtue of his race, nationality, or membership of a particular social group. I therefore find there is no fear of persecution on these grounds.
The delegate said that he considered the claims “under the categories of religion (as a Sikh); and imputed political opinion due to past harassment of him at the hands of the police.” This characterisation of the applicant's claims was not a matter which was disputed on behalf of the applicant by Mr Joel when presenting the applicant's appeal to the Tribunal. This was lodged on 28 August 1997 and was accompanied by a written submission from Mr Joel.
As I have indicated, the applicant attended a hearing held by the Tribunal on 9 March 1999. Shortly before the hearing, he forwarded a single piece of corroboration, being a document claimed to be a warrant of arrest. The Tribunal explored this document and his claims with the applicant in the course of the hearing, and I shall need to refer to parts of the transcript further below.
The Tribunal, in its reasons published on 24 June 1999, referred to what occurred at the hearing and to independent information that it had. It then under the heading “findings and reasons” gave short reasons which I shall set out in full (apart from an opening paragraph). I shall insert paragraph numbering to which I shall refer below.
1)I do not accept the arrest warrant as a genuine document. There are many factors which cause me to question its provenance. Firstly there are patent physical flaws in the document. The standard of printing is very poor. The text is not centrally positioned on the page and is set at an angle. Secondly the content of the document is dubious. It contains numerous spelling errors. The Act under which the alleged offences have been charged has not been specified. Indeed, the offence itself has not been stated. While one could accept some imperfections in such a document, I find it implausible that an official warrant would contain this number. The apparently official stamps and the signature do not advance the matter, as the ink rubber stamps/seals are of a type readily available in stationery stores and the signature could be anyone's. The warrant was issued some 5 years after the police report on which it is based, which seems to be an inordinate delay for an allegedly serious offence. For some unexplained reason, the police surrendered the original warrant to the accused's family, which seems an extraordinary thing to do with an original court document which is addressed to the police not the accused. In all the circumstances, I am satisfied the warrant is a fabrication.
2)The applicant claims he was involved in the Sikh separatist movement and is wanted by the Indian authorities because of this. He claims he was arrested many times and charged with the most serious of offences, yet he was never prosecuted and was always released after a few days. There is independent evidence that Indian police do falsely arrest people as a means of soliciting bribes, however the evidence is that this practice is unrelated to political matters. I accept the applicant may have been detained in this manner on one or two occasions, however I am also satisfied that it was not for any political reason.
3)I draw support for this conclusion from the fact that he continued to live at home during this time and was able to complete his secondary schooling and 2 years of technical training. This is not consistent with a person being a known activist in a separatist movement and being wanted by the authorities for serious offences. Moreover, he was able to obtain a passport in his own name and to depart the country legally using that passport. I do not accept his evidence that this was achieved through bribery and the use of an agent. There is independent evidence to the contrary about the stringency of passport controls and the airport police which I accept and which indicates that any person wanted by the authorities could not depart India in this way.
4)I accept that the applicant participated in the Sikh separatist movement. However, I find that he was not a high profile militant. He claims the authorities will question him about contact with his uncle's high profile friends in Canada. Even if I accept his uncle has friends in Canada, the applicant has not been there and the independent evidence is that only high profile miltants are at risk upon return to India. I am satisfied the applicant does not fit that description
5)I find the applicant's claims of being wanted by the Indian authorities implausible. I am satisfied from the independent evidence that the situation in Punjab is now quite peaceful. I am not satisfied the applicant has a well-founded fear of persecution for political or any other Convention reason.
I shall set out in full and then deal separately with each ground raised in the Further Amended Application, together with its particulars.
Ground 1.
The Tribunal made jurisdictional error as it failed to consider whether the applicant would fall within a particular social group.
Particulars
Once the Tribunal decided that the applicant may have been detained and that it was not for political reason then it should have considered whether it was for being a member of any ‘particular social group’.
Potential ‘particular social groups’ are:
(i)Those people who because of their participation in Sikh separatist movement are more vulnerable that other for repeated detention by the police who want to get bribes.
(ii)Those people who because of their participation in Sikh separatist movement are more vulnerable that others for detention by the police who want to get bribes.
In his submissions, Mr Silva identified relevant to this ground the Tribunal's reasoning in the paragraph which I have extracted above and numbered 2. In particular, these two sentences were emphasised:
There is independent evidence that Indian police do falsely arrest people as a means of soliciting bribes, however the evidence is that this practice is unrelated to political matters. I accept the applicant may have been detained in this manner on one or two occasions, however I am also satisfied that it was not for any political reasons.
The Tribunal’s reference to “independent evidence” was accepted by Mr Silva to be to information which the Tribunal had earlier summarised:
Information from Canada on Indian police practices in relation to bribery is "the following information was provided during a 23 September 1998 telephone interview with the Director of the Commonwealth Human Rights Initiative (CHRI) in New Delhi, India. The Director stated that it is common practice in rural areas for policemen to arrest persons and force them to pay bribery in order to get released. This practice, present in many Indian states, including the Punjab, is not related to politics, but is used by Indian policemen to supplement their income. This practice is not common in urban areas. Persons from wealthy backgrounds pay a higher "liberation fee" than poor persons who would likely be subject to beatings because of their inability to pay the bribe. Following the payment or beatings, persons are released. The Director did not have information as to whether the same persons are targeted repeatedly. The Director added that people who are subject to this police practice must complain to the National Human Rights Commission (NHRC) in their respective states for redress. The NHRC is very active and successful with cases of police brutality and has been able to obtain financial compensation in many cases. The Director added that people can also contact the CHRI offices for guidance" (Research Directorate, Immigration and Refugee Board, Ottawa, IND30125.E dated 24 September 1998).
Mr Silva argued that the Tribunal had failed to address a “particular social group” claim arising from the above information and the Tribunal’s findings in paragraph 2, and that this was a jurisdictional error for which relief should be given. He relied on the ground of review which has recently been discussed by the Full Court NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263. In that case their Honours held at [48-51] and [55] that failure by a Tribunal to make a finding on “a substantial, clearly articulated argument relying upon established fact” would be jurisdictional error as a failure to carry out the review required by s 415. At [63] they said:
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.
However, their Honours also held at paragraph 68 that:
A judgment that the Tribunal has failed to consider a claim not expressly advanced is . . . not lightly to be made. The claim must emerge clearly from the materials before the Tribunal.
Allsop J in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 has given further guidance as to this process of discovering whether a non-articulated claim must be addressed by a Tribunal as follows:
The Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 at [55]–[63] dealt with the question of what claims must be dealt with by the Tribunal to complete its statutorily required task (its jurisdiction) even though they may not be expressly articulated. See also Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389, 394 [24], 408 [95] and Applicant S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 203 ALR 112. From NABE I take it that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it: NABE at [61]. As the Full Court said at [63] much depends on the circumstances. Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.
Applying these authorities, I consider that the applicant's present ground fails at several points. An initial problem is that the applicant’s claims in his narrative concerning bribery did not claim that his history of arrests by the police was due to their desire to extract bribes but was due to his political activities, and that he had managed to avoid further consequences of those arrests through bribery.
The applicant's solicitor tried to persuade me that the class claim he framed in the particulars above had emerged from the applicant’s oral evidence at two points in the Tribunal’s hearing:
MR GRIFFIN: What happened to you?
THE INTERPRETER: I was arrested. Many other leaders were arrested as well
MR GRIFFIN: What happened to you?
THE INTERPRETER: We were accused and advised that we are causing trouble. Therefore we are under arrest.
MR GRIFFIN: What happened?
THE INTERPRETER: I was taken to the police station where I was beaten. On 5 August the bogus cases were registered against me accusing me of robbery, stealing. Then my release was secured by paying 15,000 rupees by my family.
…
MR GRIFFIN: Again in August 1992 you were arrested and again charged with murder and other offences including robbery. Again you were released and not prosecuted?
THE INTERPRETER: Actually for the sake of getting money they were trying to scare us. We have got cases against you for robbery and murder but they were not actual cases but only the bogus one.
MR GRIFFIN: According to your file you have been arrested at least four times, charged with multiple murders, you have never been prosecuted?
THE INTERPRETER: For the sake of getting promotion or the money the police officers will arrest anyone if they cannot arrest the offender and they will say this is the person who has committed that crime. Just for the sake of getting money or the promotion.
MR GRIFFIN: According to your statement you have also been able during that period to complete your secondary schooling and then go on and undertake two years of technical education.
THE INTERPRETER: Yes that is the case because once we have paid the money to the police then they will not harass me for about three to four months.
However, I do not consider that in these statements, nor anywhere else in the material he presented, the applicant ever put forward “tolerably clearly”, to use Allsop J's phrase, the claim which is now argued was required to be addressed by the Tribunal.
Moreover, the Tribunal's reasoning in relation to its acceptance that the applicant, “may have been detained in this manner on one or two occasions” does not itself point to group characteristics as explaining such of the detentions which it was prepared to accept. Rather, the Tribunal accepted the possibility that some arrests may have occurred as indiscriminate action of corrupt policemen in India, based on the country information that I set out above. That information did not suggest that membership of a Sikh separatist organisation gave rise to particular vulnerability. In my view the Tribunal was not obliged to address that possibility on the material and claims which had been put before it.
Furthermore, as counsel for the Minister pointed out, the applicant's own evidence which is now relied upon, suggests that the only non-political reason explaining his police harassment and arrests was indiscriminate corruption. The applicant himself did not suggest that he was in any vulnerable particular social group in relation to this. Thus, in the passage extracted above, the applicant explained some of his arrests as being motivated: “For the sake of getting promotion or the money, the police officers will arrest anyone if they cannot arrest the offender.” (my emphasis)
For the above reasons I do not accept that the Tribunal failed to exercise its jurisdiction, nor made any other error of law which would ground the issue of a writ of certiorari, in relation to the matters argued under this ground.
Ground 2.
The Tribunal made jurisdictional error as it unreasonably (in the Wednesbury sense/irrationally/illogically) held that the applicant did not go through bribery and use of an agent.
Particulars
With the ‘incontrovertible’ evidence that the Emigration Check stamp in the passport was dated 1 week before the date of issue of the passport and with the applicant’s clear evidence in this matter, it is not sustainable to say that the “I do not accept his evidence that this was achieved through bribery and the use of an agent.’
Mr Silva focused his submissions in relation to this ground on the paragraph in the Tribunal's reasoning which I have set out above and numbered paragraph 3. He contended that at a factual level the Tribunal's conclusion that the applicant had regularly obtained his passport and used it to leave the country was so flawed as to vitiate its further conclusions in the matter. This was because it was inconsistent with its own findings suggesting that the passport had been irregularly obtained.
I need not pause to consider whether this contention identified an error of law nor other error which would support the issue of the writs sought. This is because in my view there was, on the evidence now before me, no basis on which I would be prepared to find that the Tribunal's conclusion about the applicant's passport was not open to it.
Mr Silva’s argument focused on this paragraph in the Tribunal's summary of what occurred at the hearing:
I pointed out the Emigration Check stamp in the passport was dated 1 week before the date of issue of the passport and asked how the applicant was able to pass this check. He said "I got the passport in the plane". I asked if he said he got it in the plane. He said "when entering the plane". I asked how he got through to the plane without a passport. He said "there was a gentleman standing with my agent and my agent just asked me to go and he completed the form and the documents".
The Auscript transcript of the hearing is not entirely consistent with the Tribunal's summary of this part of the hearing. It shows:
MR GRIFFIN: Then you have been able to secure a passport in your own name and leave the country despite independent evidence that shows that no one can leave the country if they are wanted? I qualify that by saying nobody can leave the country on a passport issued in their own name if they are wanted by the authorities. Your passport was issued in your own name in November 1996. It bears a stamp from the authorities to say that an immigration check was conducted.
THE INTERPRETER: At the time when I was at the airport I didn’t have a passport with me. I got my passport when I was on the plane. I don’t know what he had done and how he had done it.
MR GRIFFIN: You got the passport when you were in the plane, you say?
THE INTERPRETER: At the time when I was entering to the plane the passport was handed over to me by my agent.
MR GRIFFIN: What do you mean when you were entering the plane, where?
THE INTERPRETER: I am talking about India, at the time when I was boarding the plane.
MR GRIFFIN: Where?
THE INTERPRETER: In India
MR GRIFFIN: Where in the plane?
THE INTERPRETER: I don’t know who he had spoken with. At the airport he advised me to go that way.
MR GRIFFIN: Where were you in the airport when you received the passport in your hand?
THE INTERPRETER: Say how you enter the plane and there’s a queue. I was standing in that queue when the passport was handed over to me by my agent.
MR GRIFFIN: Had you passed through security at that stage?
THE INTERPRETER: Yes. I was asked to stand on one side and tole that I was come back with the documents.
MR GRIFFIN: The question I asked you was: had you passed through the security check before you received the passport?
THE INTERPRETER: Yes. As I was told by my agent to go the different way rather that the way the other passengers were using.
MR GRIFFIN: How did you get through the security if you didn’t have the passport?
THE INTERPRETER: The other gentlemen who was standing with my agent and they just asked me to go and my agent completed the form and other documents.
It was submitted to me that in the Tribunal's account of the hearing and in its reasons, it found that a stamp authorising the applicant's departure on the day of his exit from India had been inserted with a date preceding the date of issue of the passport. It was argued that this is what the Tribunal meant when referring to the “Emigration check stamp in the passport”. On this reading, the Tribunal would, indeed, have found evidence suggesting an improperly procured exit from India.
However, I cannot read the evidence before the Tribunal as carrying this inference, nor the Tribunal’s reasons as suggesting that made such a finding about an exit stamp. Rather, I read the Tribunal as understanding from the passport, and as putting it to the applicant, that the passport on its face showed that it had been regularly issued, and that prior to that issue there has been immigration checks conducted which had allowed the issue of the passport, and which were evidenced in the passport by an “emigration check stamp” preceding the issue of the passport.
I am not prepared to conclude that the evidence before me showed anything else, and that the Tribunal made unreasonable or irrational findings about this matter. I therefore consider that this ground must fail.
Ground 3.
The Tribunal made jurisdictional error as it failed to deal with important integers of the applicant’s claims
Particulars
On CB71.30 the Tribunal says that:
“He claims that his father and other extended family members were also active in the movement. He claims he and his father were arrested several times by the police and tortured………………………………….He claims his father disappeared in March 1992….”
Mr Silva argued that the Tribunal was obliged to address an "integer" in the applicant's claims arising from references in his narrative to the political activities and disappearance of his father and other relations. He noted that within the statement of the applicant included in Mr Joel's original letter, the following two paragraphs appeared concerning his involvement in the police interest in his father:
On 7 January 1992 and on 21 March 1992, XX and his sons YY and ZZ were killed in a police encounter shooting. On 8 January, 1992, police arrested my father. He was charged with allegedly supplying arms to Sikh terrorists. On 10 January my mother and I were also arrested. Police questioned us in order to obtain from us information about my father. I did not know anything. My mother and I were released after three days. My father was unable to move. He remained in bed for two months.
On 21 March, 1992, my 11th class exams were held. On 25 march my father left home without telling anybody. We have never seen him since. We tried our best to find him, of course, but we could not. I assumed responsibility as head of my family.
Apart from those passages, and a reference to his general family background which had been provided in the applicant’s narrative, Mr Silva did not seek to identify any point where the applicant had claimed that a reason for his fears to fear persecution was his characteristic as a son of his father or a relation of other people who had been persecuted.
In my view, such a claim did not emerge from the material before the Tribunal in a manner requiring the Tribunal to make any findings additional to those which it made. I consider that it was open to the Tribunal to have considered that the references to his family members in the applicant’s narrative were presented for no other purpose than to provide background information to his personal experiences which provided his claims to refugee status. I consider that it was open to the Tribunal to read and assess all the material in which his claims were presented as raising for assessment fears resulting only from his own political activities, and not resulting from his relationship to other persons who might previously have been persecuted for their political activities.
Thus, at the start of the hearing when asked, “what harm do you fear in India?”, the applicant responded unequivocally: “because I am a member of the student federation and there are outstanding warrants against me”. As I have quoted above, the solicitor who presented the visa application had similarly identified the source of unwillingness to return as “related to his political opinion” and his own experiences at the hands of the police.
I consider that any criticisms of the Tribunal's failure to explore further in its reasoning the implications of the applicant's relations having being involved in Sikh separatism would amount to errors concerning “pieces of evidence” as distinct from omissions demonstrating a failure of jurisdiction (c.f. Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46], and also Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 [69]).
I therefore reject this ground also.
Since none of the argued grounds for relief have been made out, I must dismiss the application.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 3 June 2005
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