SZDTB v Minister for Immigration
[2005] FMCA 306
•21 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDTB v MINISTER FOR IMMIGRATION | [2005] FMCA 306 |
| MIGRATION – Review of decision of Refugee Review Tribunal – citizen of India – Sikh – misapplication of the terms “persecution” and “well-founded fear” – relocation – country information – new information before the Tribunal – misrepresentation by Tribunal of information on which it was relying – new issues raised by Tribunal’s decision – no error of law – application dismissed. Migration Act 1958 (Cth) Randhawa v Minister for Immigration & Local Government & Indigenous Affairs (1994) 52 FCR 437 |
| Applicant: | SZDTB |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1693 of 2004 |
| Delivered on: | 21 February 2005 |
| Delivered at: | Sydney |
| Hearing date: | 21 February 2005 |
| Judgment of: | Mowbray FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Patel |
| Solicitors for the Applicant: | Harpers Solicitors |
| Counsel for the Respondent: | Mr Smith |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed;
The applicant pay the respondent’s costs and disbursements of and incidental to the application fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1693 of 2004
| SZDTB |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an ex tempore judgment which has been revised and edited from a transcript. It relates to a decision of the Refugee Review Tribunal (the Tribunal) made on 3 November 2000 and handed down on 24 November 2000.
The applicant is a citizen of India who arrived in Australia on 4 August 1997 on a student visa which was valid until 25 July 1999. He returned to India on 14 November 1998 to visit his father who had taken ill. On 12 January 1999 he returned to Australia on the same student visa and on 15 June 1999 he applied for a protection visa.
On 24 November 1999 a delegate of the Minister refused the application and a consequent appeal was lodged with the Tribunal on 13 December 1999. On 21 August 2000, the Tribunal sent a letter to the two addresses provided by the applicant inviting him to a hearing. The letter to one of these addresses was returned to the Tribunal marked “Unclaimed”. The letter was resent. The applicant did not attend the Tribunal for the hearing scheduled for 19 September 2000.
On 26 October 2000 the Tribunal attempted to contact the applicant by telephone and the applicant later returned this call. The applicant said he had received the invitation to hearing letter on 18 September 2000, but that it was too late then to attend on 19 September. The Tribunal asked if he would like to reschedule a new hearing date and the applicant declined. This invitation was reiterated but still declined.
The applicant asked for a copy of the decision “on the papers” to be sent to him. As I have indicated, on 3 November 2000 the Tribunal affirmed the decision which was handed down on 24 November. An application for review was filed in this Court on 3 June 2004.
Claims before the Department and the Tribunal
The applicant’s claims centre upon his Sikh religion and his fears of persecution were he to return to India and in particular to the Punjab. He claims to have been a student in a college in Samrala from 1991 to 1997 and from 1993 to 1994 he says he was secretary of the college student union and met the President of the International Sikh Student Federation (ISYF), Bhai Charanjit Singh, “Channi”. He says he was very religious and sympathetic to the Sikh movement and “Channi” endorsed him as vice-secretary of ISYF.
He says this brought him to the attention of the district police and he was on their “top list” in 1996.
He claims that he was arrested on 11 May 1996 for three days after which his family took him to his uncle’s home in Uttar Pradesh. On
15 October 1996 he gave a lecture at a rally in Uttar Pradesh and was arrested by local police and sent to the Punjab. His family sought the help of the local council for his release but he claims he was gaoled for three months under TADA, the Terrorist and Disruptive Activities (Prevention) Act.
The applicant further says that between July and August 1997 he paid an agent for an Australian student visa and came to Australia shortly afterwards. While he was in Australia he was in contact with the ISYF and started new work with them. In November 1998 his father fell ill and he returned to India. He claims that the police there took his return as a symbol of support for the “Khalse Tricentenary” (an important Sikh occasion). They issued arrest warrants for him and his partner Bhai Javir Singh, “Khalsa”.
He claims he left for Australia again under disguise, but “Khalsa” was killed by the police. He further alleges that other Indian states hold information against him which increased the risk to his own life.
The Tribunal decision
The critical findings of the Tribunal are accurately summarised in the respondent’s submissions at paragraphs seven and eight:
(a) The applicant had not been detained or otherwise persecuted in the past;
(b) The applicant was not sought by the police when he returned to India in 1998 and did not work for the ISYF at that time;
(c) The claimed partnership did not exist and, in any event, the claim relating to the applicant’s partner would have no impact on the applicant on his return;
(d) The applicant could reasonably relocate within India without a real chance of persecution even if he felt uncomfortable returning to the Punjab
On the basis of these findings, the Tribunal concluded that the applicant had no well-founded fear of persecution and so affirmed the decision of the delegate.
Consideration
The amended application to this Court together with the applicant’s outline of submissions set out his grounds for review.
Misapplication of the terms “persecution” and “well-founded fear”
The first ground of review claimed by the applicant is:
1. The Refugee Review Tribunal (The Tribunal) made a jurisdictional error in that it failed to determine the application in accordance with correct law and in accordance with its mandate in as much as the RRT misconstrued and misapplied the definition and notion of “persecution” and “well founded fear” for the purpose of article 1A(2) of the 1951 Convention Relating to the Status of Refugees.
The first set of particulars are as follows:
The Tribunal erred in concluding that since the Terrorist and Disruptive (Prevention) Act (TADA) lapsed in 1995, the applicant’s fear was not well founded. However the Tribunal failed to appreciate that that legislation was being substitutes by other similar legislation. (See Document No.CX43381).
INDIA RIGHTS COMMISSION REJECTS PROPOSED PREVENTION OF TERRORISM BILL
India’s human rights commission has “outrightly” rejected the government’s proposed Prevention of Terrorism (POT) Bill 2000 in place of lapsed Terrorist and Disruptive (Prevention) Act (TADA), saying that the existing laws are sufficient to deal with any eventuality including terrorism.
These particulars misstate the finding of the Tribunal and show a misunderstanding of the evidence. The applicant claimed that he had been arrested in 1996 under TADA. However, TADA lapsed in May 1995 and there is no evidence that a replacement for the TADA has been made or was made in 1995 or 1996. The only people held under the TADA in 1996 were those who had been arrested before it had lapsed. Thus, as it was entitled to do, the Tribunal concluded that it was unable to be satisfied that the applicant had been detained under TADA at the time he alleged. I can discern no legal error in the Tribunal’s findings in this regard.
Particular two is:
The Tribunal erred in concluding that the applicant was not a high profile activist. The applicant’s statement describes the position the applicant held, he was Vice Secretary and his involvement with I.S.Y.F.
This particular cavils with a finding of fact made by the Tribunal and no error of law is demonstrated.
Particular three is:
The Tribunal erred in failing to consider whether there was some chance that the Applicant might encounter persecution in the reasonable foreseeable future by reason of his profile and involvement with ISYF? If so the fear would be well founded and the applicant would be entitled to protection visa notwithstanding the adverse credibility finding of the Tribunal in respect of various claims made by the applicant.
I accept and adopt what has been put to me by the respondent in her written submissions:
The third particular of the first ground again shows a misunderstanding of the Tribunal’s reasons. The applicant relied on a number of past events to establish that his fear of persecution was well-founded. All of them, with the exception of the harsh treatment of Sikhs in the period from the mid 1980’s to the early 1990’s, were rejected. However, the Tribunal found that that situation had changed. In addition, the Tribunal found that the applicant could reasonably relocate to another part of India without a well-founded fear of persecution. The purport of this last finding is that the applicant’s fear of harm in India (rather than the Punjab) is not well-founded and is not the reason for which he is unwilling to avail himself of the protection of the state. In other words, the relocation finding was also determinative of the review.
Again, I can find no legal error, let alone a jurisdictional error, based on what has been put to me in relation to the third particular.
Relocation
The second ground is:
The Refugee Review Tribunal (The Tribunal) made a jurisdictional error in that it failed to determine the application in accordance with correct law and in accordance with its mandate in as much as the RRT misconstrued and misapplied the principles of law relating to whether the Applicant could relocate within other parts of India?
Particulars
The Tribunal failed to consider the personal circumstances of the applicant such as his age, his lack of knowledge of other languages spoken in other parts of India. The difficulty he would encounter in adapting to different local customs, and other undue hardship he might have to face. The Tribunal erred in considering that issue only on the basis of general information and in failing to have proper regards to the circumstances of the applicant.
In this ground the applicant argues that the Tribunal failed to have regard to his specific personal circumstances in regard to relocation. But the applicant failed to attend, and indeed declined to attend, the hearing that was offered to him by the Tribunal. If the applicant had attended the hearing the Tribunal would have had an opportunity to gather further information on this matter and the applicant would have been able to put his concerns to the Tribunal. He must have been well aware that relocation was an issue before the Tribunal as it was directly considered in the delegate’s decision.
Further, the Tribunal did address matters such as the applicant’s education, his ability to speak three languages and that he was demonstrably able to adapt to new environments, all of which were relevant to the test that is set out in Randhawa v Minister for Immigration & Local Government & Indigenous Affairs (1994) 52 FCR 437
In view of his failure to attend the Tribunal hearing, the applicant cannot now come before the Court and suggest that the Tribunal had failed to consider matters that he might have put at such a hearing. This ground also must be rejected.
New information before the Tribunal
The third ground which was raised for the first time in the applicant’s submissions which were provided to the Court on 16 February 2005 is:
The applicant was denied procedural fairness and natural justice in as much as the RRT reached its critical findings on the basis of subsequent new information received by it relating to the change of political condition in India without disclosing that information to the Applicant and without giving him fair opportunity to respond to that information. The Applicant had waived right to attend the oral hearing only to enlarge and amplify the matters stated in his written application and submissions.
The RRT acquired the information subsequently regarding the changes in the political climate in India on the basis of 2000 report. This information was not disclosed to the Applicant prior to reaching its decision and the Applicant was not given fair opportunity to respond to that information.
I note that this ground to some extent repeats the fourth particular of ground one:
It is submitted further RRT misconstrued and drew incorrect inferences from the reports mentioned at paragraph 11 and 12 [which paragraphs incidentally I have not been able to locate]. The RRT further erred in failing to bring to the notice of the Applicant that it was relying on new information relating to the change in the political situation in India without disclosing that information to the applicant and without giving a fair opportunity to the Applicant to respond to that information not withstanding the Applicant had waived his right to attend the hearing.
As I have stated ground three was raised for the first time in the written submissions. Despite an objection by the respondent I gave leave for it to be added at the hearing. It raises two issues. The first is whether the Tribunal represented to the applicant that it would consider only the information on the Departmental file and his applications. The second is whether new issues were raised from the information before the Tribunal.
Did the Tribunal misrepresent to the applicant what information it would consider?
In essence, what Mr Patel for the applicant asserted was that when the applicant declined to attend the hearing, he thought that a decision would be made only on the material in the Department file and his applications. He was not aware that adverse information in, for example, a UK Home Office Report of 2000 would also be relied upon. Having not been provided with the opportunity to answer this material, he claims he was denied procedural fairness.
However, there is no evidentiary basis for the claim that the Tribunal misrepresented to the applicant how it would make its decision and on what material it would rely.
In the letter from the Tribunal to the applicant on 13 December 1999, which noted that the Tribunal had received the application on that day, the Tribunal says
We have asked the Department to send a copy of its documents about your case to the Tribunal. When we receive the Department’s documents, the Tribunal will look at your papers and decide whether it has jurisdiction to consider your application. If so, it will then look at your papers along with any other evidence on the Tribunal file to determine whether it can make a decision in your favour.
If the Tribunal cannot make a decision in your favour, you will be asked whether you want to come to a hearing of the Tribunal to give oral evidence and to present arguments. Some hearings are conducted by video or telephone conference.
If you have any new documents or written evidence, you should send them to the Tribunal at the earliest possible point in the review process.
I note particularly that in that letter the Tribunal told the applicant that it would examine the documents on the Tribunal file to see whether it could make a decision in his favour. The documents on the file included the documents available to the primary decision maker.
On 21 August 2000 the Tribunal contacted the applicant by a letter which he apparently received on 18 September 2000, inviting him to attend a hearing on 19 September 2000. The Tribunal’s letter said:
The Tribunal has looked at all the material relating to your application but it is not prepared to make a favourable decision on this information alone. You are now invited to come to a hearing of the Tribunal to give oral evidence, and present arguments, in support of your claims. You are also entitled to ask the Tribunal to obtain oral evidence from another person or persons.
…
If you have any new documents or written arguments that you would like the Tribunal to consider, you should send them to the Tribunal with the completed form. Any documents you send are to be in English, or translated into English by an accredited translator.
On 26 October 2000 an officer of the Tribunal had a telephone conversation with the applicant:
I asked [the applicant] if he would like the Member to reschedule a new hearing date for him so he would have an opportunity to express his claims to the presiding member, he said that he does not want to have a hearing and would like to have the decision on papers and sent out to him. I asked him again if he was sure that he did not want to have a hearing and he again told me that he didn’t and would like the decision on papers and sent out to him. I advised him that I would let the member know this and that the decision would be mailed out to him in 4-6 weeks.
In my view, a reasonable reading of the letters from the Tribunal to the applicant does not lead to a conclusion that the only documents the Tribunal would consider were the application and the Department file. This is particularly so when the passages “any other evidence on the Tribunal file”, “all the material relating to your application” and “The Tribunal … is not prepared to make a favourable decision on this information alone” are taken into account.
Furthermore, the applicant has not presented any oral or written evidence at the hearing today in support of his claim that the Tribunal made a representation to him that it would only consider a relatively confined set of documents. The applicant was given an opportunity to attend the Tribunal hearing which he declined. He had fair warning that the Tribunal was not prepared to make a decision in his favour on all the material before it. I can detect no procedural unfairness in the way that the Tribunal handled this matter.
Were any fresh issues raised in the material considered by the Tribunal?
At the hearing today Mr Patel was only able to point to the UK Home Office Asylum and Appeals Policy Directorate Country Assessments 2000 Report as a document mentioned in the decision which contained information that he asserted should have been provided to the applicant. He suggested that the other documents available to the Tribunal, although not generally referred to in the decision of the Tribunal, may have created an unfair impression against the applicant’s case.
Extracts from the UK Home Office Report are produced in three places in the decision of the Tribunal. The first is at page 79 of the Court Book. This section essentially deals with criticisms levelled at the Punjabi police for their misuse of power during the mid 1980s and early 1990s. None of the information in this particular quote can be seen to be adverse to the applicant. In fact the material supports contentions that he has made.
The second section at pages 80 to 81 of the Court Book relates to the changed situation in the Punjab in the late 1990s and subsequently.
It refers to the situation starting to improve shortly after the 1992 elections and to a report of the South East Asia Straits Times that the Punjab had returned to the “path of peace and prosperity once more”. It notes that “the central government has been attempting to rein in the Punjab police”. The Home Office Report continues:
Sikhs do not constitute a persecuted group at the present time, and rank and file members of groups that were at one time targeted eg the AISSF, are in general terms now safe.
The third quote from the UK Home Office Report is at page 85 of the Court Book and that refers to the issue of relocation within India:
Punjabi Sikhs are able to relocate to another part of India and Sikhs outside Punjab are feeling more secure now than at any other time since the 1984 riots. Sikhs are a mobile community and as a result, there are Sikh communities all over India.
In essence there were two issues raised in the UK Home Office Report that might be regarded as adverse or disadvantageous to the applicant. The first related to the improved situation for Sikhs in the Punjab and the second to relocation. The question is whether the applicant was aware of these issues such that he would have had the opportunity if he so wished to answer this adverse information.
The Tribunal had before it the delegate’s decision which clearly had been provided to the applicant. At page 35 of the Court Book the delegate refers to country information which pointed to the improved political situation in the Punjab for Sikhs and summarises it as follows:
Information concerning the situation in the Punjab is now largely consistent and refers to a greatly improved situation for Sikhs.
At page 36 the delegate referred to the opinion of a political scientist from La Trobe University, Professor Robin Jeffrey, about the prospects for relocation elsewhere in India for Sikhs:
Professor Jeffrey stated that Sikhs were well represented in India outside the Punjab, particularly in big cities such as Bombay and Calcutta and in areas such as Uttar Pradesh and even in the south of India.
Part of that particular paragraph from the delegate’s report has been underlined in an attachment to the application to the Tribunal at page 44 of the Court Book.
It is clear from this material that the issues of the improved situation in the Punjab and the possibility of and opportunities for relocation were expressly considered by the delegate. They were brought to the applicant’s attention by the decision of the delegate. These were not new issues and there is nothing in the reports and in the documents which suggests that there was other material of which the applicant should have been made aware and had not been.
In my view nothing has been put to the Court to show that the applicant was misled into believing that the Tribunal would consider a limited number of documents or that he was treated unfairly by the failure of the Tribunal to alert him to adverse material on which he should have had the opportunity to comment. Furthermore, the applicant having failed to attend the Tribunal hearing, having been given that opportunity, can hardly complain now.
Conclusion
The respondent has submitted that the application must be dismissed as no reviewable legal error has been disclosed. I agree. It is apparent the Tribunal formed an adverse view about the credibility of the claims that were made by the applicant. The findings made by the Tribunal were reasonably open to it on the material before it.
I am satisfied that the Tribunal made no legal error going to jurisdiction in coming to its decision. I find that the decision of the Tribunal was a privative clause decision having regard to the authority of the High Court in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
The respondent has filed a notice of objection to competency on the basis that the application to this Court was made well outside the
28 days provided for in s 477(1A) of the Migration Act 1958 (Cth). The Court has no power to enlarge that period. Having found that the decision is a privative clause decision, the Court has no jurisdiction to deal with it.
The application is incompetent and it must be dismissed.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Kelisiana Thynne
Date: 7 April 2005
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