SZCYT v Minister for Immigration
[2007] FMCA 858
•18 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCYT v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 858 |
| MIGRATION – Order to file amended application after hearing stating the grounds relied on at the hearing – amended application disregarded insofar as it deviated from the grounds argued at the hearing – view that applicant lucid and coherent not an expert opinion – medical report arranged by applicant’s wife – provided by applicant for purposes of the application – no social group – criteria relate solely to applicant. |
| Migration Act 1958, ss.424A, 474 Federal Magistrates Court Rules r.44.11 |
| Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 SZBJI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 216 |
| Applicant: | SZCYT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3219 of 2006 |
| Judgment of: | Turner FM |
| Hearing date: | 21 March 2007 |
| Date of last submission: | 21 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 18 June 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr. Kumar |
| Counsel for the Respondent: | Mr. D. Jordan |
| Solicitors for the Respondent: | Ms. E. Warner-Knight of Australian Government Solicitor |
ORDERS
The application and amended application are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3219 of 2006
| SZCYT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 3 November 2006 for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 20 September 2006 and handed down on 12 October 2006 which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa. The Court ordered the applicant to file an amended application: that was filed on 30 March 2007.
The applicant was born on 11 December 1967 and claims to be from India, of Sikh ethnicity and Sikh faith (“the Applicant”).
The applicant is married with one son. The applicant stated at the Tribunal hearing that his wife and son are resident in India. By Notice of Motion filed on 8 March 2007 the applicant sought to the joinder of this matter with matter with matter SYG 3915/2006. That motion was dismissed. The applicant was self-employed as a farmer since 1982 (CB 175).
The applicant arrived in Australia on 5 October 2002 on a visitor’s visa.
The applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 15 October 2002. In this application he claimed that he would be persecuted because he was an ethnic Sikh. The applicant claimed that after Operation Blue Star the local police commenced raids on many villages in the Punjab and conducted interrogations of Sikhs in relation to the riots during Operation Blue Star. The applicant claimed he was arrested in 1984 and that the police found documents in his home which they claimed were against the policies of the government. The applicant claims he had to bribe the Sarpanch of the village to secure his release. As the applicant was unable to pay the amount requested, he offered the Sarpanch a part of his land, which was accepted. A few weeks later the applicant was detained and interrogated again about his involvement with the riots. The applicant claimed that on this occasion his hand was badly injured by the police.
This application was refused by a delegate of the first respondent on 13 February 2003 (CB 50).
On 12 March 2003 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal. The applicant’s wife gave oral evidence to the Tribunal on
23 September 2003 in a telephone hearing, at which time she also maintained the claims made in the original protection visa application. In response to a letter sent by the Tribunal dated 30 September 2003 asking the applicant to comment on the evidence given by his wife (CB 85), the applicant stated that he was not satisfied with the information given by his wife and that he wanted to put his own experience before the Tribunal (CB 92). The applicant was invited to a hearing to present evidence and arguments in person on 12 December 2003 (CB 94), which he attended (CB 94).
On 10 February 2004, the Tribunal handed down its decision, dated
15 January 2004 (CB 103), affirming the decision of the Minister’s delegate refusing to grant the applicant a protection visa. The applicant applied to this Court for review of the decision, and on 10 May 2006 orders by consent were issued by Federal Magistrate Lloyd-Jones quashing the decision made on 15 January 2004 and remitting the matter to the Tribunal for determination according to law (CB 128-9).
A Tribunal hearing was held on 25 July 2006 in which the applicant and his wife appeared via videolink to give evidence and present arguments (CB 175). In considering the applicant’s claims, the Tribunal found (Quote CB 192 para 4 to last para CB 197):
On the evidence before it, including the evidence of the applicant’s passport, the Tribunal accepts that he is a national of India. It further accepts that he is the husband of another applicant before this Tribunal (060487284).
The Tribunal accepts that the applicant has been diagnosed as having a serious depressive illness, for which is currently receiving medication, and which has had an effect on his ability to provide a full and coherent account of his experiences in the past. Nevertheless, a consultant psychiatrist, Dr Matthew Large, said in October 2003 that he believed that the applicant was able to give evidence, and that his view was that the applicant would be able to comprehend the Tribunal’s proceedings. Dr Large’s report was provided to the Tribunal prior to the applicant’s Tribunal hearing of December 2003. The applicant does not claim that his evidence at the Tribunal hearing of July 2006 was adversely affected by his illness, and the Tribunal formed the impression that his account of his claims at the hearing was lucid and coherent.
Serious discrepancies in the applicant’s claims over time, and discrepancies between his own evidence and that of his wife have been identified by the Tribunal (differently constituted) and by the present Tribunal. These discrepancies have been pointed out to the applicant, most recently in accordance with s424A of the Act in August 2006 (CB 151), and his comments sought. The applicant says, in effect, that the adviser whom he and his wife engaged before they lodged their Protection Visa application was either incompetent or remiss in his handling of their cases, and that as a result a truncated version of their claims was originally submitted and they were wrongly advised in relation to their first hearing before the Tribunal. Neither the adviser’s incompetence nor the applicant’s depressive illness, in the Tribunal’s view, adequately explain a number of the discrepancies in evidence, such as the nature of the injuries sustained by the applicant as a result of police mistreatment, the frequency, timing and duration of arrests and detentions between 1985 and 2001, and events preceding and following his trip to Australia in 2001. The documents submitted by the applicant in support of his claims are also at times inconsistent with the evidence given by the applicant and his wife, or lacking in essential detail, such as when and where events occurred. For example, the letter from a Counselor in Nanded, described at page 5, supports the applicant’s claims of harassment during the 1984 Blue Star operation, but states that the Counselor “saw personally the police arresting the applicant and beating him very badly” without saying when this occurred, before going on to recount what the applicant’s wife said to him. Takat Sachkand of the Sikh temple in Naded also relates what the applicant told him of events in 1984 and afterwards, but then states that in August 2002 the Punjab police issued a warrant for the applicant, arrested him, and took him to Punjab (page 6). Neither the applicant nor his wife have ever claimed that events of this kind took place in 2002. The applicant, having given various different dates for the issue of a police warrant, said in his most recent submission, which the Tribunal prefers because the applicant has had the opportunity to review his evidence over time and give a final, definitive account of his experiences, that a warrant, which he did not see, was issued in 1986, and that this was the only warrant the police issued to him. The Tribunal therefore gives little weight to the documentary evidence, some of which will be further discussed below.
The Tribunal has taken into account the country information which indicates that the situation for Sikhs in the Punjab, especially those with political affiliations to Sikh militant groups, was extremely difficult and subject to serious human rights violations from the early to mid-1980s to the mid-1990s (pages 16-19). It has noted, furthermore, the comments of the Executive Director of Human Rights Watch, writing in December 2004, about the continuing widespread fear and anguish among Sikhs who still fear police and security forces because of the harshly punitive and repressive actions of the authorities in the Punjab (page 18). Given the conditions in Punjab in 1984, when the applicant claims to have been arrested for the first time, interrogated and mistreated by the police, the Tribunal accepts the basic account which has remained constant over time, that the applicant was approached for food by militants, assisted them, reported the matter to the local head man who was Hindu, and was subsequently arrested, questioned and mistreated by the police. It accepts that it was during this time that the applicant’s left hand or arm was badly injured, as the applicant claimed in his Protection Visa application, as stated by him in the affidavit registered by his lawyer in June 2003 (page 6), as stated by him to the Tribunal in his hearing in December 2003, and again at his hearing in July 2006. The Tribunal therefore finds that the applicant was persecuted in 1984 for reason of his ethnicity and religion as a Sikh, as well as for his imputed political opinion as a Sikh militant.
The accounts given by the applicant and his wife of events after the applicant left Punjab and went to live in the state of Maharashtra are, in the Tribunal’s view, lacking in credibility (CB 193.6). The Tribunal notes that in his latest submission, the applicant states (i) that he was questioned and detained about 20 to 25 times between 1991 and 2001; (ii) that after his marriage (in 1991) he and his wife did not have any problems because they moved around, and (iii) that his problems started with his arrest and detention in February or March 2001. The affidavit at page 6, which seems to the Tribunal to be the most reliable piece of documentary evidence submitted although it is lacking in specifics, refers to police harassment after the applicant came to Nanded. On the other hand, Takat Sachkand of the Sikh temple states that after the applicant came to Nanded “his life was very good but in August 2002 Punjab police came…” (page 6). The letter from the Counselor in Nanded, described at page 5, says that the Counselor saw personally the police arresting the applicant and beating him, although he does not say when this occurred, and refers to police harassment by both Punjab and Maharshtra police, though he gives neither a start or end date to the harassment. The second letter from this Counselor, described at page 10, is also vague, but states that the applicant and his wife “were troubled by the police” after the applicant came to Nanded. The Tribunal has already stated that it gives little weight to the documentary evidence submitted, especially because it is often inconsistent with the applicant’s own evidence (CB 193.9). However, given the country information relating to the harsh repression of Sikhs which continued for the next ten years after 1984, the Tribunal is prepared to give the applicant the benefit of the doubt and accepts that the applicant was subjected to harassment from time to time by the authorities until he came to Australia in 2001.
The applicant was in Australia for some three months from April to July 2001, but did not apply for a Protection Visa during this time. When asked why he did not do so, the applicant’s wife told the Tribunal in September 2003 that they had a good business, their life was peaceful, and the police had only come once or twice; the applicant himself told the Tribunal in December 2003 that his relatives in Australia told him to go home to India; the applicant told the Tribunal in July 2006 that he was told in Australia that it would take some time to lodge a protection visa application, and that his wife was being harassed and bashed in India while he was away. In the Tribunal’s view, the applicant did not lodge a protection visa application in 2001 because he was not then fearful that serious harm would befall him if he returned to India (CB 194.3). In fact, the country information is to the effect that in Punjab the period of extreme violence ended in the mid-90s, even though it left a dangerous legacy of authorities believing they could act with impunity (see for example Amnesty International and BBC News, pages 18-19).
The applicant has claimed that after he returned from Australia, he found his wife in detention, and that he himself was detained for a period on his return. This has not been a consistent claim, and the Tribunal does not accept it (CB 194.4). If the applicant were arrested and detained at all following his return from Australia, it is more plausible that this happened to him when he went to Punjab at some time in 2001. This claim is one that has been made consistently since the Protection Visa was lodged, and it is plausible, given the country information relating to ongoing problems in Punjab, and the applicant’s claim that he was pursued for a long period by the Hindu village chief, who may plausibly have cherished a grudge against him. While claims have been made at various times that the applicant was detained from one day to one week in Punjab in 2001, it has never been claimed that the applicant was mistreated on this occasion. The Tribunal, giving the applicant the benefit of the doubt, finds that the applicant was arrested, questioned and detained for a short period in 2001 in Punjab by the Punjab authorities.
The applicant himself has never claimed to have been questioned or arrested from the time of his detention in Punjab in 2001 until he left for Australia in October 2002, including in his most recent submission to the Tribunal, even though he said in that submission that he was moving around, by implication to avoid the police. The letter from Takat Sachkand (at page 6) refers to Punjab police arresting the applicant and taking him back to Punjab in August 2002, but since this is a claim never made by either the applicant or his wife, the Tribunal rejects it. The applicant’s wife claimed at the hearing in September 2003 that the applicant had been arrested and detained for a day in early 2002, but the applicant himself stated that he was not satisfied with the evidence given by his wife on his behalf at this hearing, and at his own hearing in December 2003 he made no mention of this arrest. The Tribunal rejects the claim of arrest and detention of the applicant in October 2002 (CB 194.8). At one time the applicant had claimed that there was an outstanding warrant for his arrest, but more recent evidence, including the applicant’s most recent statement, indicates that he was aware of only one warrant for his arrest, which he did not see, but which was issued in 1986. This most recent evidence by the applicant is inconsistent with the claim by Takat Sachkand (at page 6) and his wife (page 7) regarding the warrant. Takat Sachkand refers to a warrant being issued in August 2002, while the applicant’s wife refers to a warrant issued in October 2002. The Tribunal rejects these claims. It prefers the applicant’s own evidence, and does not accept that there is an outstanding warrant for the applicant’s arrest in India (CB 194.10).
The Tribunal is required to consider whether there is a real chance that the applicant will be persecuted if he returns to India in the foreseeable future. It has found that he has been persecuted in the past for reason of his ethnicity and religion, and his imputed political opinion as a Sikh.
The Tribunal has taken into account the country information, which indicates that the situation for Sikhs, even in Punjab, has substantially improved, and bears no comparison with the situation in the decade from the mid-80s to the mid-90s. The Tribunal has been unable to find any evidence that Sikhs in India are at risk of persecution for reasons of their ethnicity or their religion, as distinct from their political opinion, real or imputed (CB 195.2). The applicant has never, on his own evidence, been involved with a political group, and certainly not with a militant Sikh group. While he has claimed that he had been accused of killing policemen in Punjab in 1984, the Tribunal does not accept that he would have simply been detained for a short period and harassed from time to time if the authorities believed him to have been responsible for this, or that he would have been able to secure his release by paying bribes, as he has claimed (CB 195.3). It does not accept the applicant’s claims that he left India in 2001 and 2002 because he had a friend who bribed police. It does not accept that he would have been able to leave the country legally on two occasions, even by paying a bribe, if he had been seriously suspected of murdering policemen (CB 195.5). Apart from the claim that there are outstanding warrants against the applicant, which the Tribunal has rejected, two further claims have been made suggesting that the applicant might be at risk from the Indian authorities. One is that his life is in danger from the police because he bribed one of the police officers to arrange his release from custody in Punjab in 2001, made in his Protection Visa application. This is a claim that has not been made since the Protection Visa application, and is, in the Tribunal’s view, implausible. The Tribunal rejects it. The second claim, also made in the Protection Visa application, is that the applicant will be arrested “under false cases” by the police if he returns. Again, no reference has ever been made since then to this claim by the applicant, his wife, or the writers of the documents submitted in support of the claims. In particular, the applicant’s lawyer makes no mention of this claim in the document described at page 6. The Tribunal does not accept that there are any cases, false or otherwise, outstanding against the applicant (CB 195.6). Given the authoritative statements quoted above in the UK Home Office Report that “Sikhs were not subjected to torture just because they were Sikhs or because of the general political situation. One diplomatic mission also commented that the situation was not perfect but that Sikhs in general were not being persecuted” (page 19), and the applicant’s profile, the Tribunal is not satisfied that there is a real chance that he will be persecuted by the authorities for a Convention reason if he returns to India in the foreseeable future (CB 195.7).
The alternative source of persecution given by the applicant in his evidence over time is that he has been pursued by the head man of his local village in Punjab since 1984 (CB 1995.8). Reasons given for this alleged pursuit have varied. In the applicant’s Protection Visa application, the reason appears to have been that the head man was Hindu, and that he sided with the authorities in Operation Blue Star. This is also the reason cited in the affidavit (page 6), and given by the applicant’s wife in her hearing in September 2003. In December 2003, the applicant claimed for the first time that he suspected Kedar Nath, the head man, thought he had been responsible for the death of a member of his family and therefore instigated the police harassment. By June 2006, the Counsellor from Nanded was saying that Kedar Nath’s two sons and his committee people were killed by terrorists and Kedar Nath suspected the applicant (page 10). At the Tribunal hearing of July 2006, three sons of Kedar Nath and policemen were said by the applicant to have been killed in 1984 and this was what started his problems. When asked at the July 2006 hearing when he had last seen Kedar Nath, the applicant said that it was in 1985. The Tribunal does not accept that the applicant, if he had believed that the source of his problems was Kedar Nath, would not have attempted to negotiate with him at some point after 1985. The Tribunal rejects the applicant’s claim that he is at risk of serious harm from Kedar Nath, the village headman in Punjab (CB 196.1). Even if the applicant were at risk of serious harm in Punjab, the Tribunal notes the information regarding relocation in India, particularly the information provided by the Home Office which indicates that there are millions of Sikhs successfully living in other states in India (pages 20-21) (CB 196.2). It has taken into account the fact that Punjabi authorities will attempt to pursue high profile individuals who have been involved in militant action, but it is satisfied that the applicant does not fit that description. The applicant and his wife are still comparatively young people and have relatives in Mumbai, where they themselves have lived for periods of time. The applicant ran a successful business for many years in Maharashtra. In these circumstances, the Tribunal finds that it would be reasonable for the applicants to return to another state in India in preference to Punjab (CB 196.3), where the applicant has not lived for twenty years, if he continued to fear the Punjabi authorities or any individuals in Punjab, such as Kedarnath, the Hindu village headman.
The Tribunal has also considered whether the applicant’s wife’s experiences may result in a real chance of the applicant being persecuted if he returns to India in the foreseeable future (CB 196.4). While the Tribunal has given the applicant the benefit of the doubt in accepting that he was subjected to harassment in the period up to 2001, and that therefore his wife and son were also likely to have experienced this harassment, it has not accepted that the applicant or his wife were subjected to arrest and detention in Maharashtra in 2001, at the time of, and immediately following the applicant’s trip to Australia. While the affidavit described at page 6 claims further police harassment of the applicant’s wife and son after his departure for Australia, presumably in 2002, it provides no detail. The applicant makes no claims about harassment of his wife in 2002 after he left for Australia in his most recent submission to the Tribunal. When they were questioned at the Tribunal hearing in July 2006, the applicant and his wife both said that the wife’s only problem after her husband left for Australia was that she did not have a passport and had to wait in Bombay until she got one for herself and the son. The Tribunal rejects the claim that the applicant’s wife was subjected to serious harm after the applicant’s departure for Australia in both 2001 and 2002. It is not satisfied on the evidence before it that there is a real chance that the applicant will be persecuted for reasons of his membership of a particular social group, namely his wife’s family, if he returns to India in the foreseeable future (CB 196.6).
In making its finding about relocation, the Tribunal has also considered whether the applicant’s depressive illness is likely to affect either his capacity to relocate or his vulnerability to persecution in India (CB 196.7). The most recent Country Report by the US State Department indicates that people with psychiatric problems who require hospitalisation are very poorly cared for (Country Report on Human Rights Practices, 2005 (released March 2006) for India). However, the UK Home Office in its April 2006 report quotes at length from a WHO report which states “the Government spends 5.1 per cent of its budget on mental health. Financing for health services is provided both by the states and the centre” (5.131). The WHO report also indicates that psychotropic drugs used for the treatment of mental health disorders are generally available at the primary health care level (5.135). It is clear that the situation for people like the applicant suffering from depressive disorders is far from ideal, however, while there is a lack of adequate resources for mental health in India, there is no evidence that those in the applicant’s situation face negative discrimination so serious as to amount to persecution in a Convention sense in India. While the applicant’s depressive condition is likely to impact upon his ability to relocate successfully in India, it does not, in the Tribunal’s view, prevent successful relocation, in the sense of relocation to an area in which the applicant will not have a well-founded fear of Convention-related persecution (CB 196.10). The Tribunal recognises that the applicant’s depressive illness is a serious problem for him, and that he is likely to receive better management of his condition in Australia than in India. However, this is a humanitarian consideration, and the Tribunal’s role is limited to determining whether the applicant satisfies the criteria for the grant of a protection visa (CB 197.2). A consideration of his circumstances on other grounds is a matter solely within the Minister’s discretion.
The Tribunal is not satisfied that the applicant has a well-founded fear of Convention-based persecution in India (CB 197.3).
Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) for a protection visa.
The Tribunal affirms the decision not to grant the applicant a Protection (Class XA) visa.
The applicant then filed the application in this court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth).
The application and the amended application filed on 30 March 2007
The applicant filed an application on 30 November 2006. Written submissions for the applicant were filed on 12 March 2007. They contain a statement of “grounds of the application” as follows:
Ground 1: Serious depressive illness and expert evidence.
Ground 2: Social class
Ground 3: Relocation
Ground 4: The “Real Chance” Test
Counsel for the applicant told the Court that he was relying on all that was in the application plus the four grounds in his submission. He stated that the first three grounds were the same as the three grounds in the application (Transcript 2, line 16) and to that he added another ground. He said he was prepared to file an amended application to take care of all of the issues he had raised (Transcript 2, line 5).
Mr. Jordan for the first respondent submitted that the grounds in the written submissions did not correlate with those in the application. He proposed that the Court hear the case on the basis of the submissions and that an amended application should be filed. The Court then ordered that an amended application be filed. The amended application was to reflect the grounds argued before the Court.
An amended application was filed on 30 March 2007: In so far as it deviates from, or expands on, the matters agitated before the Court during the hearing, it will be disregarded; The applicant cannot raise, in an application filed after the hearing, matters that were not dealt with during the hearing, as the respondent would be deprived of the opportunity to address them. The Court therefore will deal only with the matters raised during the hearing.
The application
In his application, the applicant set out three grounds as follows:
1)That the Tribunal erred in law due to following conclusion it made: “The Tribunal recognises that the Applicant’s depressive illness is a serious problem for him…However, this is a humanitarian condition and the Tribunal’s role is limited to determining…protection visa”.
2)That the Tribunal exceeded its jurisdiction when concluded: “The Tribunal is not satisfied on the evidence before it that there is a ‘real chance’ that the Applicant will face be persecuted for reasons of his membership of a particular social group, namely his wife’s family…”
3)The Tribunal misconceived the Applicant’s claims when concluded: “The alternative source of persecution given by the Applicant in his evidence over time is that he has been pursued by the Head Man of his local village in Punjab since 1984.”
Findings
Ground 1 alleges an error of law where the Tribunal concluded (CB 197.2) that the applicant’s depressive illness is a humanitarian consideration and the Tribunal’s role is limited to determining whether the applicant satisfies the criteria for the grant of a protection visa. The Court finds no such error of law by the Tribunal and rejects this ground.
Ground 2 complains about the Tribunal’s conclusion that it was not satisfied that there is a real chance that the applicant will be persecuted for reasons of his membership of a particular social group, namely his wife’s family. The Tribunal set out its reasons for reaching this conclusion at CB 196.4. The Court finds that the conclusion by the Tribunal was open to it. There is nothing to establish that the Tribunal exceeded its jurisdiction. The Court rejects this ground.
Ground 3 claims that the Tribunal misconceived the applicant’s claims when it concluded that “a source of persecution given by the applicant was that he was pursued by the head man of the local village in the Punjab since 1984” (CB 195.8). The Court found as a matter of fact that the applicant made that claim. That finding of fact was properly open to the Tribunal after hearing the applicant’s case. The transcript of the hearing by the Tribunal has not been produced to the Court. The Tribunal rejected the claim after a detailed analysis (CB 195.8 – 196.2). There is nothing to show that the Tribunal misconceived the applicant’s claims. The Court rejects this ground.
Findings as to the grounds in the written submissions
Ground 1
As to the finding at CB 192.5 that “the applicant does not claim that his evidence at the Tribunal hearing of July 2006 was adversely affected by his illness and the Tribunal formed the impression that his account of his claims at the hearing was lucid and coherent,” the applicant alleges that the Tribunal erred in finding that the “applicant did not claim that his evidence was affected by serious mental illness”.
This allegation seeks to challenge a finding of fact that is not open to review. The applicant has not provided a transcript of the hearing by the Tribunal to prove this allegation. In those circumstances the allegation is rejected.
The applicant claims that the Tribunal relied on the report from
Dr. Large (CB 96) as a reason for reaching the decision to affirm the decision of the delegate, and asserts that this report should have been put to the applicant in a s.424A letter. The Court holds that the applicant’s ability to give or not give evidence is not a reason or part of the reason for the Tribunal deciding to affirm the decision of the delegate. The medical report merely enabled the Tribunal to reach a conclusion that “the applicant’s account of his claims at the hearing was lucid and coherent”. The content of the report was not a reason for the Tribunal’s decision and is therefore not covered by s.424A.
Also, the applicant’s wife agreed to see the applicant’s general practitioner for a referral to get a specialist report (CB 114.9). The report was sent direct to the Tribunal but it was clearly provided by the applicant through his wife, for the purposes of the application and was subject to the exclusion in s.424A(3)(b). There was no obligation under s.424A to put that report to the applicant. The Tribunal did however put the report to the applicant for his consideration by letter dated
3 November 2003, and explained its relevance, being that it stated that the applicant’s depression would not prevent him from travelling to the Tribunal and giving evidence (CB 94).
The applicant alleges that the Tribunal made its own finding in relation to the mental state of the applicant and that it did not have the expertise to do so. The Court finds that the Tribunal was entitled to form the impression that the applicant’s “account of his claims at the hearing was lucid and coherent.” That is not an expert opinion as to mental health, but merely an observation as to the way the applicant presented his case. No error occurred. Ground one is rejected.
Ground 2
Ground 2 alleges that the applicant was a member of a particular social group, and that the Tribunal failed to assess this claim.
The group was sought to be defined in the written submissions for the applicant as Sikhs “subject to persecution both from Sikhs (group to whom the applicant provided food) who later suspected the applicant of having them reported to the police (CB159.3)) and by Hindus; neighbour Kedar Nath who caused problems for him, and after police suspected him of being involved in the killing of the neighbours sons, and someone who is suffering from a depressive illness.” The applicant did not claim anywhere in the material before the Tribunal that he feared persecution from Sikhs because they suspected him of reporting them to police. The group was defined differently in Transcript page 7 line 7 as “Sikhs causing harm to Hindus…who are suffering from mental illness, although not at the time” (Transcript 7, line 12).
The criteria required to be in the group as described in the written submissions or in the oral submissions relate solely to the applicant. Only the applicant would fit these criteria; therefore they do not describe a group. In Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25, Gleeson CJ, Gummow and Kirby JJ stated at [36] that:
“First the group must be identified by a characteristic or attribute common to members of the group.”
The second attempt to define the group as “Sikhs causing harm to Hindus who are suffering from mental illness, although not at the time” suffers from the same defect as the first group. Also it is inconsistent with the first definition which alleges that Sikhs were causing harm to Sikh members of the group, who were also being harmed by Hindus. This examination demonstrates that the alleged group cannot be clearly articulated or identified within society.
As to the general group of Sikhs causing harm to Hindus, the Tribunal dealt with this by stating “However given the country information relating to the harsh repression of Sikhs which continued for the next ten years after 1984, the Tribunal is prepared to give the applicant the benefit of the doubt and accepts that the applicant was subjected to harassment from time to time by the authorities until he came to Australia in 2001 (CB 193.10).”
The Tribunal found that it “has been unable to find any evidence that Sikhs in India are at risk of persecution for reason of their ethnicity or their religion, as distinct from their political opinion, real or imputed.” (CB 195.2). The Tribunal referred to information that …“Sikhs were not subjected to torture just because they were Sikhs” (CB 195.7). “Sikhs in general were not being persecuted” (CB 195.7). The Tribunal therefore dealt with the allegation of Sikhs being persecuted. The applicant never claimed before the Tribunal that he was a member of a social group of “Sikhs causing harm to Hindus”. That appears to have been a reformulation for purposes of the hearing before the Court. It was not a claim put to the Tribunal. Ground two is rejected.
Ground 3
Ground 3 alleges that the Tribunal failed to consider properly the question of relocation because it failed to take into account:
·The adequacy and effectiveness of state protection;
·The reasonableness and practicality of the relocation…based on the applicant’s….circumstances;
·The applicant’s background, education, financial reasons, and mental illness.
The Tribunal found at CB 196.2 that:
Even if the applicant were at risk of serious harm in Punjab, the Tribunal notes the information regarding relocation in India, particularly the information provided by the Home Office which indicates that there are millions of Sikhs successfully living in other states in India (pages 20-21) (CB 196.2). It has taken into account the fact that Punjabi authorities will attempt to pursue high profile individuals who have been involved in militant action, but it is satisfied that the applicant does not fit that description. The applicant and his wife are still comparatively young people and have relatives in Mumbai, where they themselves have lived for periods of time. The applicant ran a successful business for many years in Maharashtra. In these circumstances, the Tribunal finds that it would be reasonable for the applicants to return to another state in India in preference to Punjab (CB 196.3), where the applicant has not lived for twenty years, if he continued to fear the Punjabi authorities or any individuals in Punjab, such as Kedarnath, the Hindu village headman.
The Tribunal dealt with the issue of relocation again at CB 196.7 and considered whether the applicant’s depressive illness is likely to affect…his capacity to relocate…in India. The Tribunal found that:
“While the applicant’s depressive condition is likely to impact upon his ability to relocate successfully in India, it does not, in the Tribunal’s view, prevent successful relocation, in the sense of relocation to an area in which the applicant will not have a well-founded fear of Convention-related persecution.” (CB 196.10)
Those findings were reasonably open to the Tribunal on the material before it. The Tribunal therefore dealt specifically with the issues of state protection, the practicality of relocation taking into account the applicant’s mental illness, his Sikh background, his education and financial resources (having run a successful business for many years).
The Court accepts the submission for the first respondent that the finding on relocation was “not a finding the Tribunal had to make because it had actually found that there was no well-founded fear of persecution. The finding made in the alternative were (sic) (was from) abundant caution.” Therefore even if the finding is wrong that does not give rise to a jurisdictional error unless the Tribunal’s finding that there was no well-founded fear of persecution is also shown to be subject to jurisdictional error. The decision in SZBJI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 216 sought to be relied on by the applicant. The Tribunal there had not addressed the practicality and reasonableness of relocation. Clearly the Tribunal in the present case addressed those issues. The Court finds no error in the way the Tribunal dealt with the issue of relocation. Those findings of fact are not open to review.
Ground 4
Ground 4 alleges that the Tribunal, having accepted that the applicant “may have suffered harassment up to 2001”; “erred in the application of the real chance test”. The Court accepts the submission for the first respondent that:
24) This assertion is without any substance. The question for the tribunal was whether or not the applicant had a well founded fear of persecution in the reasonably foreseeable future. The Tribunal’s finding, that no such fear existed because of changed circumstances in India, was open and does not disclose any error.
The applicant stated in Transcript page 8 line 35:
35 Looking at the country information you can glean whether there’s a real risk that this applicant will suffer harm. In my submission the harm needs to be looked at from this particular applicant’s perspective. The country information in my submission doesn’t support that real chance finding.
40 Whether in my submission this legislation is a beneficial legislation, whether the Tribunal in applying the real chance has been too harsh, in my submission it has been and has erred in application of the law. Unless I can assist…those are my submissions.
This claim made by the applicant amounts to no more than a challenge to findings of fact that were properly open to the Tribunal on the material before it. Ground four is rejected.
Conclusion
This is a final hearing pursuant to Rule 44.11. The Court finds that the Tribunal’s decision is a privative clause decision, that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application and amended application are dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Sarah James
Date: 4 June 2007