SZBKV v The Minister for Immigration
[2005] FMCA 784
•2 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBKV v THE MINISTER FOR IMMIGRATION | [2005] FMCA 784 |
| MIGRATION – Review of decision of RRT – whether the Tribunal focused its attention on the issue of credibility and failed to take into account relevant country information – whether the Tribunal failed to consider a claim made by the applicant – whether the Tribunal failed to examine all other available source of country information – whether the Tribunal failed to consider whether or not the applicant could have a well-founded fear notwithstanding the fact that he may not have suffered any serious harm – whether the Tribunal failed to correctly consider and apply the test of well-founded fear of persecution for the purposes of the convention. |
| Migration Act 1958, s.91R Federal Magistrates Court Rules 2001 |
| Dranichnikov v The Ministerfor Immigration and Multicultural Affairs [2003] 197 ALR 389 SZATG v The Ministerfor Immigration and Multicultural and Indigenous Affairs [2004] FCA 1595 Seyfarth v The Ministerfor Immigration and Multicultural and Indigenous Affairs [2004] FCA 1713 |
| Applicant: | SZBKV |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1873 of 2003 |
| Judgment of: | Raphael FM |
| Hearing date: | 2 June 2005 |
| Date of Last Submission: | 2 June 2005 |
| Delivered at: | Sydney |
| Delivered on: | 2 June 2005 |
REPRESENTATION
| Solicitors for the Applicant: | Bharati Solicitors |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $4250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrate's Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1873 of 2003
| SZBKV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of India. He arrived in Australia on 3 July 2002. On 15 August 2002 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 26 August 2002 a delegate of the minister refused to grant him a protection visa and on 4 September 2002 he applied for review of that decision from the Refugee Review Tribunal. On 23 May 2003 the Tribunal advised the applicant that it had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone but invited him to a hearing and to produce evidence. The applicant attended a hearing and did produce evidence in the form of two affidavits, which are found in translation at CB46 and CB48. On 16 July 2003 the Tribunal determined to affirm the decision not to grant the protection visa and it handed down that decision on 30 August 2003.
The applicant's claim to have a well-founded fear of persecution for the conventional reasons of religion/race/membership of a particular social/political group arises out of his being a Sikh from the Punjab. He informed the Tribunal that he had an interest in Sikh independence and a reluctant association with the Mann Group. Because of this association he and his parents were accused of harbouring militants and he alleged that his home had been raided many times by police. In 1994 he joined a separatist group of the Akali Dal Party and because of his fear of the internal strife within the Sikh independence organisations he moved to Uttar Pradesh for a few months. He returned but in 1997 there were further problems in the Punjab. In February 2002 there were elections in the Punjab which were won by the Congress Party. The applicant feared that because of his support for the Badal Group members of both the Congress Party and the Mann Group were going to kill him. He alleged that some supporters of the Mann Group came to his farm because they wanted to harm him but he fled and went into hiding outside of the village.
The applicant's claims, which were first put before the delegate were investigated by the Tribunal. At CB62 the Tribunal indicates that it had difficulty in accepting his claims and had informed him of this. The Tribunal gave the applicant the opportunity to resolve the problems raised by the Tribunal in respect of his evidence. The decision of the Tribunal commences at CB63 and concludes at CB65. At CB63 the Tribunal says:
“I do not find the applicant to be a credible witness. There are a number of differences between the evidence which he gave to the Department and that provided at the hearing, and I found much of the evidence which he provided implausible or unconvincing.”
The Tribunal then goes on to list those matters about which it has concern. At CB64 says:
“While some of the problems listed above are relatively minor and considered in isolation would not have caused me to disbelieve the bulk of his evidence others are more serious. ... [here the Tribunal indicates the more serious matters] ... After considering all of the evidence given by the applicant I do not believe that he was a political activist in India or that he left India because he feared persecution for a conventional reason.”
The Tribunal on the same page gave reasons for rejecting the evidence provided by the applicant. The Tribunal then went on to say:
“The applicant has also claimed that he is at risk of harm in India because of his Sikh religion. He does not claim to have experienced any problems because of his religion in recent years nor does he claim that other members of his family have experienced problems for reasons of religion, or at least not in recent years. The applicant has provided no documentary evidence to substantiate his claim. Furthermore, there is nothing in any of the sources which I have consulted which suggest that Sikhs are generally at risk of harm in Punjab or elsewhere in India today for reasons of religion or for any other reason in the convention. [See sources cited above and International Religious Freedom Report 2002 - India, US Department of State October 2002 CX68425]”
The applicant was represented at the hearing before me today. His counsel provided me with written submissions which contained five grounds relied on by the applicant. I will deal with each of these. The first ground is that the Tribunal fell into jurisdictional error in focusing its attention on the issue of credibility and failed to take properly into account other evidence and material in relation to the plight of Sikhs who had suffered persecution for religious or political beliefs.
As I understand the argument put by Mr Patel it is this: the Tribunal may not have believed that the applicant had personally suffered the persecution alleged by him or had a well-founded fear of persecution arising out of the incidents and facts to which he had given evidence. But it should still have considered whether or not the situation in the Punjab was so dire that any Sikh might have a genuine well-founded fear of persecution. If that is what Mr Patel is arguing then I think the answer to it is found at CB64 in part of the extract, which I have already quoted, where the Tribunal says:
“Furthermore, there is nothing in any of [these] sources which I have consulted which suggest that Sikhs are generally at risk of harm in Punjab or elsewhere in India today.”
The applicant has another difficulty of course. It is quite clear now from the decision of the High Court in Dranichnikov v The Ministerfor Immigration and Multicultural Affairs [2003] 197 ALR 389 at [78] that the function of the Tribunal is to respond to the case that the applicant advances and is not to "Find any available basis which theoretically the Act provides for relief." As Healy J says in SZATG v The Ministerfor Immigration and Multicultural and Indigenous Affairs [2004] FCA 1595 at [36]:
“It was for the appellant to put forward the information and the materials on which he relied in support of his claims. The RRT is not in the position of a contradictor, rather the RRT is to consider the appellant's claims and determine if they have been made out: VB v the Commonwealth [1999] 197 CLR 510 at 576 [Gummow and Haine JJ]”
The second matter raised by Mr Patel is that the Tribunal fell into jurisdictional error in not considering the claims raised by the applicant that he feared persecution by reason of his political beliefs and by reason of his religious beliefs and that he was persecuted by members of the Congress Party and by the State as well as unauthorised agents who were abusing the power. It seems to me, with respect, that that is exactly what the Tribunal did do. The Tribunal considered the claims arising out of the applicant's alleged support for the Sikh independence groups and his problems with both the Congress Party and the Mann Group. I cannot see that there is any merit in this ground.
The third ground is that the Tribunal made a jurisdictional error in failing to examine all the other sources of available country information and other evidence. As Ms Morgan says in her helpful written submissions no particulars are provided of this ground of review. We are not told what the Tribunal may have found if it had made the investigations referred to and we are not told what is wrong with the country information that the Tribunal did rely on. This claim seems to straddle both the problems I have already discussed with the responsibility of the applicant to advance his own case, and those considered in such cases as Seyfarth v The Ministerfor Immigration and Multicultural and Indigenous Affairs [2004] FCA 1713 at [95] where Hely J said:
“There is no general duty on a decision-maker to prompt and stimulate an elaboration which the applicant chooses not to embark upon. There is no general obligation on the minister to make his own inquiries.”
The fourth matter is that the Tribunal made a jurisdictional error in failing to consider whether or not the applicant could have a well-founded fear notwithstanding the fact that he may not have suffered any actual serious harm. Ms Morgan points out that this ground of the review is misconceived. She says the Tribunal's rejection of the applicant's claims of persecution on the basis of political involvement and religion were not based on lack of actual serious harm. Rather, they were based on the applicant's own credibility in relation to the political involvement claim and contrary country information in relation to the religion/membership of a particular social group claim.
I think that is right. Mr Patel's arguments also seem to ignore the requirements of section 91R of the Migration Act that mandates that the persecution which the Tribunal is to consider involves serious harm.Finally, Mr Patel argues that the Tribunal made a jurisdictional error in failing to correctly consider and apply the test of well-founded fear of persecution for the purposes of convention. The Tribunal sets out at CB56 to 58 the definition of a refugee and the requirements of a well‑founded fear. Just because these definitions appear regularly and in the same form in every decision does not mean that the member of the Tribunal does not fully understand or adopt them. I am satisfied that this member of this Tribunal did both. In those circumstances I am unable to find any grounds upon which I can review the decision of the Tribunal.
I dismiss the application and I order that the applicant pay the respondent's costs which I assess in the sum of $4250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrate's Court Rules.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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