SZBKC v Minister for Immigration
[2005] FMCA 689
•20 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBKC v MINISTER FOR IMMIGRATION | [2005] FMCA 689 |
| MIGRATION – Review of decision of RRT – whether the applicant had a subjective fear of persecution – where the Tribunal found that statements made by the applicant were lacking in credibility and not consistent with a person who had fear of persecution – whether the Tribunal failed to consider the adequacy of state protection – whether a failure not to consider state protection constitutes a jurisdictional error – whether the tribunal gave proper consideration to the question of relocation. |
| Federal Magistrates Court Rules 2001 |
| Yusuf v Minister for Immigration & Multicultural Affairs (2001) 206 CLR 323 Craig v South Australia (1994) 184 CLR 163 Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 |
| Applicant: | SZBKC |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1844 of 2003 |
| Judgment of: | Raphael FM |
| Hearing date: | 20 May 2005 |
| Date of Last Submission: | 20 May 2005 |
| Delivered at: | Sydney |
| Delivered on: | 20 May 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Kumar |
| Counsel for the Respondent: | Ms S Kaur-Bain |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant to pay the respondent's costs assessed in the sum of $4000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1844 of 2003
| SZBKC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of India. He entered Australia on a visitor’s visa on 1 August 1992. On 7 March 1994, he applied for refugee status with the Department of Immigration, Local Government and Ethnic Affairs. That application was rejected by a delegate on 24 May 1994, as was an application for a permanent entry permit. On 21 June 1994, the applicant lodged with the Refugee Review Tribunal an application for review. The Tribunal interviewed the applicant, and on 31 July 1995, determined that it was not satisfied that the criterion under subsection (36)(2) of the Migration Act for the grant of the protection visa existed.
I have received no submissions about the delay between 1995 and 2003, when the applicant lodged this application, and have no knowledge of how he remained in the country following the rejection of his application. The respondent has not submitted that I should exercise my discretion against granting review on the grounds of delay.The Tribunal considered the applicant's claim to protection on the basis that he was as a Sikh a member of a religious group, and states at CB 68:
“I have considered claims which the applicant may have on the grounds of his race also to be claims which fall within religious grounds. This is not to the applicant's disadvantage in any way.”
The facts upon which the applicant bases his claim are that he was a person from a rural village in the Jallandhar District of the Punjab.
He graduated from University in 1997 and worked on a farm and then in a cotton mill as a clerk. He feared returning to the Punjab because of harassment and harsh treatment faced by ordinary Sikhs from both the authorities and from militant Sikhs. He stated that he had joined a militant organisation Babbar Khalsa in 1984, but he had left that around 1988. However, because his father, the head man of his village, regularly provided food and shelter to militants, the applicant had been arrested twice by police in 1989 on suspicion of having aided the militants. On the first occasion he was held for two weeks and released on the payment or a bribe. On the second occasion, he was detained towards the end of 1989 and held for three weeks and again questioned about militants. He stated that he had been beaten in custody, and asked about people seeking shelter in his village. He told the Tribunal that he had not been detained again after the second occasion in 1989, but he had been questioned several times about militant activities, the last time being in July 1992.
The Tribunal discussed the requirements for a finding of satisfaction that the applicant was a person to whom the Refugee Conventions applied, and came to the view that the applicant had a subjective fear of persecution. But, it is also necessary, when considering if the fear is well founded, to have a look at objective matters. The Tribunal did this. It considered information from a variety of sources concerning the dramatic improvement in conditions in the Punjab in the intervening years since the applicant's departure. At CB 80 the Tribunal said:
“From the evidence examined above, it is clear that a number of sources agreed that the Indian authorities in the Punjab are targeting top Sikh militants and those are the degree of prominence in human rights reporting. I find, therefore, that there is substantially less than a real chance of the ordinary Sikh of no continuing involvement of any significance and separatist activities attracting the kind of detention and mistreatment which the applicant has experienced in the past.”
In fact, a close reading of pages CB 78 and 79 might indicate that the Tribunal did not really believe that the applicant had a subjective fear of persecution. It finds some of his statements lacking in credibility and indicates reasons why they are not consistent with a person who had such a fear.
At CB 80 the Tribunal deals with the applicant's departure from India and uses his ability to depart from that country without a problem as an indicator that he was not a person who was of interest to the authorities. This went to the Tribunal's consideration of the objective element. The essence of its finding in this regard is summed up at
CB 80 where the Tribunal says:
"I consider that the risk to the applicant of experiencing persecution on return has diminished with the over all improvement of the security situation in the Punjab. It has been six years since the last instance of detention and harm for a Convention reason. On the evidence there is no reason why the police should have maintained any interest in him. The applicant conceded at the hearing that the threat from the militants had reduced, commenting that his wife had written to say that there was more peace in the Punjab but he believes that the militants have simply fled somewhere and will be back. He stated that the police will then 'definitely start asking me questions again'. Given that the objective evidence overwhelmingly confirms that substantial change has taken place, the applicant's fear in this regard cannot be regarded as well-founded. For this reason I cannot accept as credible his claim that his wife has advised him that the police are still seeking him."
The Tribunal then goes on to consider the possibility of relocation and it states:
"Accordingly, in terms of the test laid down by the High Court in Chan, I find that there is less than a real chance that the applicant would be persecuted because of his religion or political opinion upon return at this time or within the reasonably foreseeable future. In the event that he does not wish to live in the Punjab it is open to him to relocate to another part of India. In view of his age and relative employability as a university graduate previously employed in a clerical capacity; the fact that he is able to speak, read and write Punjabi and Hindi, I do not consider relocation to be an unreasonable option which is preferable to the resettlement in a third country in the absence of a well-founded fear of persecution."
The applicant argues that in the whole of this decision the Tribunal does not consider the adequacy of state protection and that its failure to do so constitutes a jurisdictional error of failing to take into account a relevant matter of the type considered by the High Court in Yusuf v Minister for Immigration & Multicultural Affairs (2001) 206 CLR 323 or in Craig v South Australia (1994) 184 CLR 163. The difficulty which the applicant has in making this submission in respect of the case before me is that in Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 at [29] the High Court through their Honours McHugh and Gummow JJ made it clear that there are two cumulative conditions, the satisfaction of both of which is necessary for classification as a refugee.
The question of adequate state protection being a reason why a refugee may not be able or may not wish to avail himself or herself of the protection of his or her country of origin only comes into play if that person is found to have a well-founded fear of persecution for reasons covered by the Convention. If the Tribunal finds that there is no such fear, and here it has, then there is no need for the Tribunal to consider adequate state protection at all. I am therefore unable to find in favour of the applicant for that reason. The applicant also made some argument concerning the finding by the Tribunal that he was able to relocate. As I understand the submission, it was that having not considered one of the essential integers of the claim, namely the adequacy of state protection, the finding about relocation was not a relevant matter. I do not agree. The applicant conceded that the Tribunal applied the appropriate legal test in relation to relocation. Having done that and applied those tests to the facts as they were found, the Tribunal has provided the applicant with an additional reason why he is not a person to whom Australia protection obligations.
I am unable to see any grounds upon which this application can be sustained. I must therefore dismiss it, which I do. I order that the applicant pay the respondent's costs which I assess in the sum of $4000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Raphael FM
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