SZBNS v Minister for Immigration
[2006] FMCA 1856
•20 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBNS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1856 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. Status – refugee status – refusal. Visa – protection visa. |
| Migration Act 1958, ss.91X, 424A |
| Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37 |
| Applicant: | SZBNS |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3723 of 2005 |
| Judgment of: | Cameron FM |
| Hearing date: | 10 November 2006 |
| Date of Last Submission: | 10 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 20 December 2006 |
REPRESENTATION
| Applicant in person. |
| Counsel for the Respondents: | Ms V. McWilliam |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3723 of 2005
| SZBNS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By a further amended application dated 22 April 2006 which was filed in court on 10 November 2006, the applicant seeks review of the decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 6 December 2005 which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) dated 31 July 2002 refusing the applicant’s application for a protection visa.
Section 91X Migration Act 1958 (Cth) provides that the Court must not publish the applicant’s name.
Background Facts
To quote from the Minister’s submissions the applicant may be described as follows:
2. The applicant is a citizen of India, of Tamil ethnicity, who arrived in Australia on 17 March 2002 and lodged an application for a protection (Class XA) visa on 25 March 2002, claiming to fear persecution by reason of his political opinion.
3. The applicant claimed to be sympathetic to the cause of the Tamils in Sri Lanka and to have been a member of both the Communist Party and the LTTE Friendship Society from 1987 to 2002 when he left India. The applicant claimed to have been involved in various demonstrations opposing the Indian Peacekeepers’ role in Sri Lanka, for landless peasants, and as part of his activities with the LTTE Friendship Society …
4. The applicant claimed to have been arrested on numerous occasions and to have been tortured by police…
Although the detail of the applicant’s claims changed at various stages of the refugee status determination process, the essence of those claims is set out on pages 4-5 of the Tribunal’s decision (Court Book (“CB”) pp.152-153). Relevantly, the claims are:
The applicant noted a violent communal clash in his area in 1986 [between members of the applicant’s caste and members of a different caste] and said he was arrested, by a police superintendent of an antagonistic caste, on false murder charges. The applicant claimed he was detained for six months before being released on conditional bail. The applicant was sympathetic to the cause of the Tamils in Sri Lanka and became the district secretary of an association which supported the Sri Lankan LTTE. At a demonstration in April 1990 opposing the Indian Peacekeepers’ role in Sri Lanka, the applicant and others were arrested. The applicant was sentenced by the magistrate to a three-month jail term in Madras jail, during which he was mistreated.
The applicant said that he was branded by the police as a trouble-maker and frequently targeted at political demonstrations. He claimed he was arrested more than five times and tortured by police.
In 1998 the applicant led a demonstration of landless peasants. This was attacked by thugs hired by the landowner and the applicant sustained a broken leg. He was treated under police guard then charged in the district court and sentenced to
4 months imprisonment. On his release, he found that his wife and family had gone to her father’s place. After discussing his situation with them, he left Tamil Nadu and went to Delhi to start a new life. He found work in Delhi.Late one night he was stopped by police who, noting that the applicant could not speak Hindu [sic], suspected that he was an LTTE “Tamil Tiger”. They took him to a police station where he was interrogated by Tamil-speaking policemen. After three days’ detention, the police sent the applicant back to Tamil Nadu, into the hands of the police there. He was taken to the Madras Central prison.
After his release, the applicant returned to his family who thought it would be best if he left the country. The applicant said he “went underground” while his father-in-law arranged his departure from India. He believes that if he returns, the police will frame him on old and new charges and eliminate him.
At the Tribunal hearing the applicant also claimed that children of people of the different caste who were killed in the communal disturbances of 1986 wanted to kill him and were waiting to kill him (CB 156, 157).
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found it was not satisfied that the applicant is a person to whom Australia has protection obligations. The Tribunal’s decision was based on the following findings and reasons which are paraphrased in the first respondent’s outline of submissions as follows:
6. The Tribunal accepted the oral evidence given by the applicant, except for a new claim made in relation to threats from children of those involved in an isolated incident of communal violence in 1986, which the Tribunal described as far-fetched.
7. It accepted that the applicant had been detained without charge for six months in 1986 after the period of communal violence and that the applicant was arrested, charged and sentenced to three months’ imprisonment in 1990 for obstructing traffic.
8. The Tribunal found that there was no adverse political record of any consequence attached to the applicant and that the applicant has had a ‘clean record’ in his home district for the last seven years, despite his ongoing interest in, and sympathy for, political actions on behalf of the oppressed (as the applicant would see it) (CB 158.4).
9.The Tribunal further accepted that the applicant was removed from Delhi to Tamil Nadu for no apparent reason other than his ethnicity, and that this may well be discriminatory, but that this was a question to be addressed through the Indian Human Rights Commission, and it was not germane to the applicant’s claims.
10. The Tribunal did not accept that the applicant was being systematically targeted for reason of his political opinion or other Convention reason. It found that the chance that harm amounting to persecution will befall the applicant in the reasonably foreseeable future for a Convention reason was remote (CB 159).
11. Accordingly, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason and affirmed the delegate’s decision.
Taking into account the original application, the amended application and the further amended application, the various grounds advanced by the applicant can be summarised as follows:
a)Failure of the Tribunal to consider his application.
b)It was not open for the Tribunal to be satisfied that it would be reasonable for the applicant to relocate.
c)The Tribunal breached s.424A of the Act.
d)The applicant was denied procedural fairness by not being able to put his case as required.
e)The Tribunal made a jurisdictional error by applying an incorrect test when considering the applicant’s ability to escape persecution.
f)The Tribunal made incorrect findings of fact in relation to:
i)The authenticity of documents, claims and evidence;
ii)The availability to the applicant of effective protection from persecution.
g)The Tribunal failed to characterise the applicant’s involuntary removal from Delhi to Tamil Nadu as race-based persecution.
h)The Tribunal failed to deal with the applicant’s claim that as a member of the Hindu Thevan community he had a well founded fear of persecution.
Dealing with each of these grounds in turn:
Failure of the Tribunal to consider his application
The applicant does not identify in what respects he says that his application has not been considered; this ground is not supported with any particularisation. However, the basis of claim for protection is that the applicant has a well-founded fear of persecution, were he to return to India, based on his prior political activities, his membership of a particular caste and his ethnicity.
Contrary to this ground of the application in these proceedings, each of these claims or elements of the claim was considered by the Tribunal and rejected. The Tribunal concluded that the applicant’s political activities and interests, his involvement in the caste-based communal disturbances in 1986 and his detention at that time, and his involuntary removal from Delhi to Tamil Nadu had not led him to being targeted for any Convention reason and the chance of this occurring in the reasonably foreseeable future was remote. The Tribunal was not satisfied that the applicant has a well-founded fear of persecution for a Convention reason.
It should also be observed that the Tribunal noted but rejected the Applicant’s assertion at the hearing that he had been
… appraised of recent threats from the children of those involved in the communal riots of 1986
on the basis that it was far-fetched and without any foundation.
It was not open for the Tribunal to be satisfied that it would be reasonable for the applicant to relocate
As the Minister’s submissions indicate, the issue of relocation was considered and discussed during the Tribunal hearing (CB 157.9) but in the absence of a finding of persecution - and there was no such finding by the Tribunal - there was no need to consider any further the possible appropriateness of relocation within India (cf NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37).
The Tribunal breached s.424A of the Act
Subject to certain exceptions, s 424A(1) requires the Tribunal to give to an applicant for comment, particulars of information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision which is under review. One of those exceptions to the operation of s.424A(1) deals with information which the applicant gives to the Tribunal for the purposes of the application (s.424A(3)(b)).
This was the second application the applicant had made to the Tribunal, a previous decision apparently having been set aside. In its discussion of the applicant’s claims and evidence, the Tribunal as constituted on this occasion referred to the information which the applicant had previously supplied to the Minister’s department and to the Tribunal as constituted on the previous occasion, as well as to his written submission dated 19 September 2005 which, according to the stamp on the copy in the Court Book (CB 65), was received on 22 September 2005.
Although noting the information supplied by the applicant on prior occasions and available to the Tribunal on this occasion, the Tribunal preferred to base its decision on the evidence given orally by the applicant at the hearing before it. The Tribunal expressly rejected any of the applicant’s claims made on prior occasions where they contradicted his evidence at the hearing.
That is to say, in arriving at its decision the Tribunal relied on what the applicant had told it at the hearing, not on what he had supplied before. As to the asserted breach of s.424A, because the information supplied at the hearing falls within the s.424A(3)(b) exception the Tribunal had no obligation to give the applicant for his comment the information referred to in s.424A(1) with the result that the Tribunal did not breach that section of the Act.
The applicant was denied procedural fairness by not being able to put his case as required
In his written submission dated 19 September 2005 received by the Tribunal on 22 September 2005, the applicant provided a large amount of information to the Tribunal in response to its specific request. Moreover, the applicant came to the Tribunal hearing where he was assisted by a Tamil interpreter (CB 154.6).
The Tribunal’s decision does not suggest that anything occurred at the hearing to prevent the applicant from putting his case or that there were any translation difficulties. Nor has the applicant adduced any evidence to demonstrate this. As a consequence this ground is not made out.
The Tribunal made a jurisdictional error by applying an incorrect test when considering the applicant’s ability to escape persecution
This ground of the application contains two implications. The first of these is that the applicant had a well-founded fear of persecution and that he may have been able to escape such persecution by taking certain measures. However, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason and so this foundation of this ground does not exist. The second implication is that the Tribunal considered the applicant’s ability to escape a persecution which it did not accept existed. It did not do this.
However, it might be said that the following comment by the Tribunal suggests that the applicant could avoid persecution by being discreet:
I note that at that time (1998), the Applicant of his own volition – and at the urging of his wife – decided to avoid activities which would lead to further arrests.
However, the harm which the applicant was avoiding would not be relevant if it was not persecution for a Convention reason:
If it is an error of law to reject a Convention claim because the applicant can avoid harm by acting discreetly, the Tribunal not only erred in law but has failed to consider the real question that it had to decide – whether the appellants had a well-founded fear of persecution.
Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 per McHugh and Kirby JJ at 489.
In this case it would be incorrect to consider the significance of the applicant avoiding activities which would lead to further arrests before determining whether that behaviour was associated with the avoidance of persecution. On the evidence before it, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason. This conclusion was not expressed to have as one of its bases a finding that the applicant could avoid persecution by acting discreetly.
In the circumstances, the Tribunal has not misapplied the law as asserted by the applicant.
The Tribunal made incorrect findings of fact
In his amended application dated 27 February 2006, the applicant asserted that the Tribunal
a)made adverse findings on the authenticity of the material submitted to it by the applicant; and
b)found that the applicant could seek effective protection in India.
However, the Tribunal’s findings and reasons did not question the authenticity of the material submitted to it by the applicant although it did prefer the applicant’s oral evidence at the hearing over information previously supplied, which it was entitled to do.
Further it did not declare that the applicant could seek effective protection in India. Indeed, rather than finding that the applicant had a need for protection in India and was able to seek, and permanently obtain it, the Tribunal said that it was:
…not of the view that the Applicant is being systematically targeted for reason of his political opinion or for any other Convention reason. The chance that harm amounting to persecution will befall the Applicant in the reasonably foreseeable future for a Convention reason is remote.
The Tribunal failed to characterise the applicant’s voluntary removal from Delhi to Tamil Nadu as race-based persecution.
The Tribunal’s findings and reasons contain the following passage in relation to the incident in which the applicant was removed from Delhi to Tamil Nadu:
There is no claim, nor does the evidence suggest, that the Applicant was anything other than an anonymous Tamil to the Delhi police: that is, there is no suggestion on the part of the Applicant that the Delhi police knew him or were targeting him personally because of his past actions.
In those circumstances it is not surprising that the Tribunal did not consider the event to be germane to the applicant’s refugee claims or that it did not find that the applicant was being targeted for his political opinions or any other Convention reason (such as race).
As a result, this ground is not made out.
The Tribunal failed to deal with the persecution claim based on membership of Hindu Thevan community
In his letter to the Tribunal dated 19 September 2005, the applicant refers to the communal violence in 1986 which involved conflict between a scheduled caste and other castes, including the Hindu Thevan community, of which the applicant is a member. In that letter he refers to the district police superintendent being of the scheduled caste and to that officer arresting the applicant on false murder charges, which saw the applicant detained in prison for six months.
The applicant is recorded in the Tribunal’s decision as repeating in his oral evidence, the fact of the 1986 communal clashes, the targeting of him by the police superintendent and imprisonment for six months (CB 154.8). The Tribunal also raised with the applicant claims relating to that occasion of violence and its relevance to his claim to fear persecution arising out of it (CB 156.9).
In its findings and reasons the Tribunal observed that the communal violence and the applicant’s related imprisonment occurred about 20 years earlier and it found on the evidence that he was not being systematically targeted for any Convention reason. The Tribunal did address the events of 1986 but found that they did not support a claim that the applicant had a well-founded fear of persecution for a Convention reason because of them.
Conclusion
The applicant has failed to make out the various grounds advanced by him in support of his claim to have the Tribunal’s decision set aside. He has not demonstrated jurisdictional error on the part of the Tribunal. As a result, the application will be dismissed.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate: Angela Chong
Date: 20 December 2006
0
2
1