SZCDK v Minister for Immigration - [2005] FMCA 657

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCDK v MINISTER FOR IMMIGRATION

[2005] FMCA 657

MIGRATION – RRT decision – Sikh delayed her protection visa application – claimed violence from Hindu and Sikh extremists – did not attend Tribunal hearing – no error found.

Migration Act 1958 (Cth), s. 422B(1), 424A, 424A(3)(a), 425(1), 425(2)(b) 425(3), 426A(1), 483A, Part 8

Judiciary Act 1903 (Cth), s.39B

Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Applicant:

SZCDK

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 2716 of 2004

Judgment of:

Smith FM

Hearing date:

10 May 2005

Delivered at:

Sydney

Delivered on:

10 May 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondent:

Ms S Burnett

Solicitors for the Respondent:

Clayton Utz

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs in the sum of $4000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2716 of 2004

SZCDK

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) challenging a decision of the Refugee Review Tribunal dated 3 November 2003 and handed down on 27 November 2003. The Tribunal affirmed a decision of the delegate made on 22 April 2003 refusing to grant a protection visa to the applicant.
Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The relevant jurisdiction of the Federal Court is under s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, the limitations have the effect that I have no power to set aside the Tribunal decision and to send the case back to the Tribunal, unless I have been satisfied that the Tribunal decision was affected by jurisdictional error.
I do not have power myself to decide whether the applicant should be believed, whether she satisfies the Refugee Convention definition of “refugee”, or whether she should be allowed to stay in Australia under a protection visa or any other visa.
The present case is somewhat different from many other cases due to the long residence of the applicant in Australia before she applied for a protection visa. In her application, which was lodged on 3 October 2002, she indicated that she had entered Australia on a two-week visitor's visa in February 1992. Her application and the statement accompanying it did not explain what she had been doing in Australia, nor why she delayed applying for protection.
Her visa application was prepared with the assistance of an agent and attached a two-page type‑written statement, in which she said that she was seeking protection so that she did not have to go back to India. She said:
The Hindu and Muslim activists and the members of the Sikh Militant Movement in Punjab would persecute me because of my religious beliefs being a Sikh.
She then recounted a history in which she claimed that her parents were Sikhs and that her father was “one of the well-known Sikh's community religious leaders in the town”. She said:
After my school education in 1985, I joined my father and assisted him with his religious activities since I was the eldest daughter in the family and he does not have any male children.

I accompanied my father in travelling from one village to another within the Punjab area to spread the Sikh religion and to encourage the younger generation to join the religion in spite of the wrong image and accusation of the religion because of the activities of the Sikh Militant Movement. Between 1985 and 1988 my father and I were some of the leaders of the Sikh religion who attended various conventions and mounted campaigns in the Punjab area. My father was in most cases one of the guest speakers.
She said that as a result of her father's activities her family were harassed by Hindu organisations, the family home was attacked in 1988, and in December 1988: “my father was assassinated and killed by Hindu activists because of his involvement in the Sikh religion”.
She said that after his death she continued "his religious activities" and in early 1989 she herself "escaped an attempted assassination". She claimed that due to financial pressures on her family her mother required her to marry a man who was a Sikh religious leader. She said she found he was a member of the Sikh Militant Movement which "has a bad reputation on human rights abuses in the Punjab area". She said that her husband objected to her request that he quit the movement and:
Vowed to kill me if I do not shut my mouth. He told my in-laws who immediately developed hatred for me and asked my husband to divorce me or kill me. Having noted that my life was at risk, I reported the situation to my mother and ran away from my husband's home after divorcing him towards late 1990.
She claimed that subsequently the Sikh Militant Movement started threatening her and her family, and in December 1991 the family's home was attacked and “properties were destroyed but I escaped death because I was not at home”. She said she then decided to leave India. She said “the police are generally ineffective. My father's death and all the threats to the family were reported to the police but no action was taken”. She said “I fled from India in February 1992 after securing a visa to travel to Australia”.
The delegate considered her claims and assessed various sources of information concerning the then current situation of Sikhs in the Punjab. In the course of his reasons the delegate said:
…there are a number of factors which cast serious doubts on the credibility of her claims, and the genuineness of her claimed fear of Convention related persecution. The information provided by the claimant is broad, vague and lacking in relevant details. The claimant has not provided any specific details with regard to the harassment/physical abuse and mistreatment she has claimed she and her family were subjected to on a number of occasions. She has provided no information on the activities she performed as a religious leader, except her vague claims… (in relation to accompanying her father in campaigns).
The delegate also pointed to the delay after the death of her father before she left India, and the much longer delay during her residence in Australia before making a claim for protection from the Australian government.
The delegate also addressed the current situation in India, and concluded that the applicant could return, since she was not of adverse interest to the authorities and if she did not want to live in Punjab she could relocate within India.
The applicant sought assistance from the same agent who had assisted her with her visa application, and lodged an application for review with the Tribunal on 10 December 2003. She gave her home address as her mailing address, and also authorised her agent to act on her behalf and to receive correspondence. She did not present any further supporting material in relation to her claims despite the delegate's doubts about her credibility. The statement attached to the application repeated general claims in relation to her fears from Hindu and Muslim activists. It also asserted that relocation to another part of India is also unreasonable, without explaining her personal circumstances that made it so.
On 6 May 2003 the applicant and her agent were sent a letter indicating that she might be invited to a hearing if the Tribunal could not make a decision in her favour. The letter referred to the importance of a hearing:
A hearing is your opportunity to give the Tribunal evidence to support your application.
An invitation to attend the hearing was sent to the applicant at her home address and to her agent by letter dated 26 August 2003. The letter said:
The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.
It invited her to “come to a hearing of the Tribunal to give oral evidence and present arguments in support of your claims”. It also warned her that:
If you do not attend the hearing and the Tribunal does not postpone the hearing it can make a decision on your case without further notice.
It invited her to “send us any new documents or written arguments you want the Tribunal to consider”. It requested that she tell the Tribunal whether she was coming by completing a "response to hearing invitation" form.
The applicant's agent returned that form on 15 September 2003. It was signed by the applicant herself and said in answer to the question, do you want to come to hearing:
No, I do not want to come to a hearing. I consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me to appear before it.
As it will appear below, this was an unfortunate decision by the applicant and she has conceded this to me today. She claimed from the bar table that she did not go to the Tribunal because she was too afraid of her own safety, since she thought that if she went they would "catch me and put me in jail". She also said that the same fears had caused her to delay making application for protection for all those years. The applicant has not in the present application sought to blame anyone for her absence from the hearing, and has presented her explanation with emotion. I have no reason to disbelieve what she said, but I do not think it provides her with a ground allowing me to set aside the Tribunal decision.
Under the Migration Act as it stood at relevant times, as a result of her consent to the Tribunal deciding the review without her appearing before it she "was not entitled to appear before the Tribunal", and the Tribunal had no duty to make further invitations nor to take further action to invite her (see section 425(1), (2)(b) and (3)).
Moreover, in fact she did not seek to attend on the day appointed, and the Tribunal appears to have made itself available in the event she did. In those circumstances the Tribunal was also expressly empowered by section 426A(1) to -
make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
The Tribunal indicates in its reasons for affirming the delegate's decision that it had acted upon the advice of the applicant that she would not attend the hearing. I can find no jurisdictional error in it deciding to proceed in her absence and on the material which she had presented.
In effect, this material was only her original statement attached to her visa application. In that situation it is unsurprising that the Tribunal's reasons indicate that it was unable to be satisfied as to the applicant’s claims. It said:
The applicant has not explained, to the Tribunal's satisfaction, her reasons for remaining in Australia for about 10 years and not applying for a protection visa until 2002. I place weight on her lack of applying early as indicating a lack of fear of subjective fear of persecution. I am also not satisfied she is unable to relocate to other parts of India in view of the independent evidence (cited below) and her skills and ability living in Australia for 8 years …
Without further information from the applicant I am not satisfied her father was a religious leader, or that he was assassinated, or that there was an assassination directed at her for her Sikh religious activities. Without further information from the applicant I am not satisfied she is a divorced woman whose husband and family are members of the Sikh Militant Movement or that they seek to harm her.
The Tribunal then also examined country information concerning the current situation of Sikhs in Punjab which, it said, indicates that -
Sikhs are not at risk of political persecution in Punjab or India but participating in peaceful, legitimate political activities or conducting prayers or preaching Sikh religion. I also note that Sikhs are able to live in other parts of India, besides Punjab, without fear of harm.
The Tribunal said that it was also of the view:
that there is a reasonable willingness on the part of Indian authorities to take action in respect of criminal acts against its citizens.
In relation to relocation, the Tribunal said:
The applicant has provided insufficient information for me to be satisfied that she is an uneducated woman who has not worked and is unable to obtain employment in other parts of India. Independent information indicates that there is free movement within India and a person from her home state can move and live in any other state in India. This was a course of action open to the applicant if indeed she had any problem whatsoever in her own area. I am not satisfied that Sikhs are unable to locate anywhere else in India, a country with a population of 1,049,700,118, the second-largest population in the world.
It concluded:
Therefore, in view of the independent evidence (cited above) and the implausibility of the applicant's claims in the light of this information, without further information from the applicant I am not satisfied that her claims are genuine or that they are convention-related.
I can find no jurisdictional error in how the Tribunal has identified the applicant's claims and addressed them in the manner set out above.
In this Court the applicant has appeared without legal representation, which she has complained of. I have sympathy for this complaint, and have for myself attempted to consider whether there was any argument that could be put by a lawyer on her behalf. Unfortunately, I have not been able to find an argument.
Her original application had three grounds as follows:
1.I should be given the opportunity to comment on the independent country information after commenting on the information, the Tribunal would be able to assess the situation in India more mindful than it did without my comments on that information.
2.The Tribunal’s comment and approach was consistent with the delegate or the minister. This makes me wonder the independence of the Tribunal. A reasonable Tribunal could have ask me more questions or ask me to provide additional information not only by oral evidence, but maybe in the form of written evidence to clarify all queries that the Tribunal could have before making its decisions.
3.Relocation is unreasonable in my circumstance because there are widespread abuse of Sikhs in India, especially in Punjab.
In relation to the complaint about being denied an opportunity to comment on independent country information, the law is, in my opinion, clear in relation to the applicant's case. The effect of sections 422B(1) and 424A(3)(a) (as interpreted in Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264) is that an applicant does not have the right to be given an opportunity to comment upon general country information which the Tribunal identifies as providing part of its reasons for affirming a decision.
In relation to the second ground, I consider that the complaints have no substance. No doubt arises in my mind as to the proper performance of by Tribunal of its review function merely from the fact that the Tribunal has affirmed the delegate’s decision and has done so for reasons similar to those of the delegate, particularly in circumstances where the applicant denied the Tribunal the opportunity to ask questions and investigate her claims at a hearing arranged for that very purpose. If this ground suggests that a reasonable apprehension of bias would arise from any other aspect of the Tribunal proceedings, then I also reject that suggestion.
Ground 3 is no more than a criticism of the Tribunal's factual conclusion about relocation and, in my view, does not raise a ground of jurisdictional error.
On 27 July 2004 the applicant filed an affidavit which contains criticisms which might provide grounds of jurisdictional error except that they are lacking in particulars that allow me to address them meaningfully. These include criticisms of the reliance by the Tribunal on independent country information and of its assessment of the issue of relocation. I do not think these criticisms have established any jurisdictional error.
One matter which I should address is an allegation that:
The Tribunal had before it no material or evidence to suggest that I have any skills that would make me employable. The Tribunal failed to take into account my unemployment history noted on the prescribed application form.
This appears to be a criticism of the Tribunal’s reasoning in relation to relocation which I have referred to above. However, in my view, it misreads the reasoning of the Tribunal, which was based on a failure to be satisfied that the applicant could not reasonably be expected to relocate rather than a positive satisfaction that she could.
The applicant filed an amended application on 31 January 2005 which recites general grounds of judicial review going to all the known heads. The particulars of these were expressed in the following way:
(a)The Refugee Review Tribunal misconstrued the meaning of the term “refugee” in that it failed to consider whether the authorities were willing to provide protection to me in circumstances where I claimed that the authorities were unwilling and unable to protect me. This claim is critical to the determination of my Application for review of the decision of the delegate.
(b)The independent country information was significant to the decision made by the Refugee Review Tribunal and form part of the Tribunal’s reasons for rejecting my claims. No section 424A notification is contained or referred to in the materials before the court.
(c)The Refugee Review Tribunal did not notify me of the available independent country information by way of a letter or invited me to comment on the independent information in relation to the independent country evidence before the Tribunal.
(d)The Refugee Review Tribunal erred in law by failing to investigate my claims in detail. The Tribunal did not ask itself correct questions, relied on irrelevant materials and made erroneous findings. The Tribunal’s finding was contrary to the independent evidence available.
(e)The Tribunal failed to take into account relevant considerations because it found that I could relocate in India but such finding was contrary to the evidence. The independence showed it was impractical to make unless one had the financial means to do so.
In relation to these particulars, my opinions are the following.
As to paragraph (a), I do not consider that the Tribunal misconstrued the meaning of refugee nor that it materially failed to consider an issue of effective protection of the applicant against harms inflicted by persons who were not agents of the state. As I have indicated above, the essential reason for the Tribunal affirming the delegate's decision was that it was not satisfied that the applicant should be believed about her claims to have been a subject of persecution by Hindu, Muslim or Sikh extremists. On that basis, the Tribunal did not have to consider issues of effective protection.
In any event, the Tribunal did make, and explain, a finding that there would be a reasonable willingness on the part of the Indian authorities to take action. I consider that this finding sufficiently addressed the issue.

In relation to paragraph (b), I have above referred to the provisions of the Migration Act and current Full Court authority which decides that the applicant was not entitled to complain of the absence of a s.424A invitation for comments on independent country information.
The same difficulty faces particular (c).
Particular (d) has no support in the authorities. The authorities do indicate the contrary; that is, that the Tribunal's duty is to assess the claims and material put forward by an applicant and generally does not have a positive duty to pursue inquiries (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43], and other authorities cited in Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20].)
The complaints that the Tribunal did not ask itself correct questions, relied on irrelevant materials and made erroneous findings have not been particularised and I have not been able to find substance in them.
In relation to particular (e), I consider that the criticisms made of the Tribunal’s relocation finding are challenges only to a factual decision which lay within the province of the Tribunal. I cannot find jurisdictional error arising from the criticisms.
The applicant attended today's hearing and, as she had previously indicated to me at a call-over, did not require the assistance of an interpreter, and has addressed me in good English. This has assisted me to understand her situation and I have sympathy for her. I have pointed out to her the limited role of a court in assisting her efforts to remain in Australia. I suggested that she should seek advice from agencies who are in the position to advise her about that. As I have indicated to her on several occasions, I am unable to make the orders she seeks in the absence of jurisdictional error in the proceedings and decision of the Tribunal.
For the above reasons I consider that I must dismiss her application.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 20 May 2005