S224/2003 v Refugee Review Tribunal

[2006] FCA 963

FEDERAL COURT OF AUSTRALIA

S224/2003 v Refugee Review Tribunal [2006] FCA 963

MIGRATION - Ministerial delegate refused application for protection visa – decision affirmed by Refugee Review Tribunal – application for order nisi – claim that Refugee Review Tribunal failed to consider a distinct claim made by the applicant – application dismissed.

S224/2003 v REFUGEE REVIEW TRIBUNAL AND MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1001 OF 2003

TAMBERLIN J
24 JULY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1001 OF 2003

BETWEEN:

S224/2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:

TAMBERLIN J

DATE OF ORDER:

24 JULY 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application for an order nisi be dismissed.

2.The applicant pay the respondent’s costs.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1001 OF 2003

BETWEEN:

S224/2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	24 JULY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an amended application for review of a decision of the Refugee Review Tribunal (“the Tribunal”), delivered on 20 July 1998.  The matter has had an exceptional history considering that the applicant arrived on 1 September 1990 and applied for refugee status on 19 September 1990.  As from September 1994, the application was deemed to be an application for a protection visa.  On 30 April 1997, a delegate of the Minister refused to grant a protection visa, and on 26 May 1997, the applicant sought review of that decision.  Thereafter, there were a series of other proceedings which I need not set out in these reasons. 

2. The Tribunal affirmed the decision of the Minister’s delegate not to grant a protection visa.  In the amended application filed by the applicant on 13 July 2006, the only ground stated is that the Tribunal did not properly consider each basis on which the applicant asserted a well-founded fear of persecution, and thereby constructively failed to exercise its jurisdiction.  Four paragraphs of particulars are outlined on the amended application.  The substance of these paragraphs is an allegation that during the hearing, the applicant articulated a claim that he feared persecution on the basis that a political opinion relating to assumed connections with Pakistan would be imputed to him if he were returned to India. He submitted that he feared being returned to Punjab because he would be accused of having connections with Pakistan due to his long absence from India, and he said that he may be detained and tortured.  The applicant contended that this political opinion would be attributed to him simply because he has been absent from India for a very long period of time. 

3. The applicant submits that this claim was completely distinct from the claim that he feared persecution as a result of imputed political opinion on account of activities in India.  He submits that the claim related to imputed connections with Pakistan was not considered by the Tribunal.  There are two possible constructions of this claim, which was summarised by the Tribunal in its reasons at page 14. 

   ‘The applicant claims that the government accuses the terrorists with having connections with Pakistan.  The applicant claims that if he were to return to Punjab he would also be accused of having connections with Pakistan because he has been out of the country for so long and may be detained and tortured.  The Tribunal pointed out to the applicant that his passport would show that he had been in New Zealand and Australia and not in Pakistan.  He claims that the police would not wait to see his passport they would just want an immediate bribe to stop their harassment.’

4. The first possible construction was adopted by Counsel for the Minister, who submits that there was no clear new or distinct claim involved in the applicant’s assertion that it would be assumed he had connections with Pakistan if he were returned to India. Counsel argues that on the contrary, this claim was simply part of the evidentiary material presented to the Tribunal as a basis for substantiating the applicant’s primary claim that he would suffer persecution if returned to India. It is submitted that the applicant’s claim in relation to imputed opinion due to long absence is in actual fact part of the primary claim, and that this has been dealt with by the Tribunal.  

5. The second possible construction is that the claim based on imputation by absence is in fact a distinct claim. I am inclined to take the broader view that this is a distinct claim from the other claims which were made by the applicant.

6. It is necessary to consider whether the Tribunal failed to deal with or consider the claim as alleged.  As noted by Counsel for the Minister, after stating the claim in the terms which I have quoted above, the Tribunal pointed out to the applicant that his passport would show that he had been in New Zealand and Australia and not in Pakistan at all. The applicant claimed in response that the police would not wait to see his passport, they would just want an immediate bribe to stop their harassment.  On a fair reading of this sentence, it appears that the substance of the applicant’s claim is that he could get back into India but that this would necessitate a bribe being given.  This is not, however, a Convention reason. 

7. Quite distinct from this point, there are also indications in the Tribunal’s reasons that the Tribunal did not consider that the applicant had a profile sufficient to attract the attention of the authorities.  The Tribunal noted that at the time of its judgment in July 1998, the applicant had been out of India for over eight years. On the evidence, the Tribunal found that the applicant would be relatively unknown.

8. The Tribunal also found the applicant's evidence to be unsatisfactory due to the presence of several inconsistencies, a number of which are listed in five paragraphs at page 28 to 29 of the Tribunal’s reasons.  In addition, the Tribunal observed that aspects of the applicant's claims may have been concocted and that several incidents were recounted differently by the applicant on subsequent occasions

9. Of more direct relevance are the Tribunal’s findings that the applicant was not a prominent member of the All India Sikh Students Federation (“AISSF”) and was not actively involved in activities with that organisation.  The Tribunal also found that the applicant was not politically active or perceived to be so. It found that the applicant could not now be considered to have political connections that would cause him to be at risk on return to India. 

10. In considering the country information and publications, the Tribunal found that given the applicant's low profile and the changed conditions in India since his departure, the chance that he would face persecution upon return to India was remote. Therefore, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution in India for any Convention reason. 

11. In my view, having regard to a fair reading of the reasons of the Tribunal read as a whole, I am satisfied that the question now sought to be raised in relation to imputed connections with Pakistan was adequately dealt with by the Tribunal.  There is no substance in the claim that the Tribunal has fallen into jurisdictional error due to a failure to deal with a distinct claim raised by the applicant in this matter.  Although there is some doubt as to whether the claim related to imputed connections with Pakistan is, in fact, a distinct claim, I have proceeded on the basis that the applicant should be given the benefit of the doubt in that respect.  I dismiss the application for review with costs. 

12. The consequence of my reasoning is that the application for an order nisi is dismissed.  I should say in this case that the period of time that the applicant has been in Australia - a period of over 16 years - is a matter of concern. It is quite obvious that over that period of time, it is likely that the applicant has established substantial roots in Australia and accordingly, this is a special matter which should be brought to the attention of the Minister with a view to giving further consideration to the applicant's position.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:            11 August 2006

The Applicant is self- represented.
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	24 July 2006
Date of Judgment:	24 July 2006