SZDTC v Minister for Immigration
[2005] FMCA 294
•21 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDTC v MINISTER FOR IMMIGRATION | [2005] FMCA 294 |
| MIGRATION – Review of decision of Refugee Review Tribunal decision – citizen of India – father allegedly member of International Sikh Youth Federation – whether Tribunal failed to consider subjective fear – procedural fairness – misrepresentation – no error of law – privative clause decision – application incompetent – application dismissed. |
| Migration Act 1958 (Cth) |
| Abebe v Commonwealth (1999) 197 CLR 510 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 Cheinmora v Striker Resources NL& Ors (1996) 142 ALR 21 SZDTB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 306 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZDTC |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1694 of 2004 |
| Judgment of: | Mowbray FM |
| Hearing date: | 21 February 2005 |
| Date of Last Submission: | 21 February 2005 |
| Delivered at: | Sydney |
| Delivered on: | 21 February 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr Patel |
| Solicitors for the Applicant: | Harpers Solicitors |
| Counsel for the Respondent: | Mr J Smith |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed.
That 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 |
SYG 1694 of 2004
| SZDTC |
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 the transcript. It relates to a decision of the Refugee Review Tribunal (the Tribunal) made on 17 November 2000 and handed down on 7 December 2000.
Background
The applicant is a citizen of India who most recently arrived in Australia on 12 January 1999. He had first arrived on a student visa on 31 December 1997. He left Australia on 14 September 1998 and went back to India until 12 January 1999 because he said that his mother was ill. He applied for a protection visa on 10 March 2000. The application was refused by the delegate of the Minister on 5 April 2000 and the applicant sought review in the Tribunal on 25 May 2000. The hearing was held on 21 September 2000 but the applicant did not attend the hearing. On 9 October 2000 the applicant forwarded an unsigned “Appointment of person to act as an agent”, noting a Mr Harold Jones as his agent. On 17 November 2000, as I have noted, the Tribunal made its decision and handed it down on 7 December 2000.
Claims before the Department and the Tribunal
The applicant’s main claims centre on his concern that he was in danger as a Sikh because of his father’s activities and connections in the Sikh community. The applicant claims that his father became President of the International Sikh Youth Federation in 1992. His father’s name was put on a “hit list” by the police during this period. During the five years after this his father was in prison and police called the applicant into the station to torture him, trying to get him to tell them the names of his father’s friends. He claimed:
I was too much frightened from the police and because Psychic Patient. My father sent me to Australia for study to avoid the future torture of police Nov 1998.
He claims that he went back to India for a few months because of the illness of his mother, but the whereabouts of his father were unknown.
The Tribunal’s decision
The central findings of the Tribunal were as set out in the respondent’s submissions:
6. The Tribunal made the following findings:
(a) The applicant had no subjective or objective fear of persecution;
(b) The applicant’s father was not President of the ISYF as claimed and was not jailed for five years for his alleged Sikh activism;
(c) The applicant was not tortured by the police;
(d) Neither the applicant nor any member of his family will not [sic] be sought by the police in India; and
(e) The applicant could reasonably relocate within India without a real chance of persecution.
7. On the basis of these findings, the Tribunal concluded the applicant had no well-founded fear of persecution and so affirmed the decision of the delegate.
Consideration
The applicant’s grounds are set out in the amended application and reproduced in the written submissions.
Ground One
Ground one 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 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.
There are a number of particulars under that ground. The first particular is:
The Tribunal erred in failing to deal with and address the main cause of the Applicant’s fear namely that the applicant’s father was arrested for his association with Bhindarwala. His father’s high profile as a political activist. The psychological impact on the applicant of the experiences he underwent as a child.
Mr Patel in oral submissions for the applicant also asserted that the Tribunal failed to take into account the age of and psychological effect on the applicant and the cumulative effect of the various incidents which the applicant alleges.
In my view, the Tribunal did consider all the integers of the applicant’s claim. For example, it considered the father’s activities. At page 112 of the Court Book the Tribunal accepted that during the mid 1980s and the early 1990s it was possible that the applicant’s father was one of the victims of persecution in the Punjab. However, on page 113, it rejected assertions of the applicant’s father’s high profile and the claim that he was jailed for five years at the end of the 1980s:
Based on existing evidence, the Tribunal is unable to be satisfied that the applicant’s father was the President of the ISYF as was stated by the applicant nor that he was jailed for five years for his alleged Sikh activism in leading that group.
Similarly, at page 113 of the Court Book the Tribunal was unable to be satisfied on the evidence that the applicant himself was tortured by the Punjabi police in his teenage years in attempts by them to find out who his father’s associates were.
Having made no positive findings in the applicant’s favour, there was nothing to justify a claim of a well-founded fear of persecution on cumulative grounds.
The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status at paragraph 53 says:
In addition, an applicant may have been subjected to various measures not in themselves amounting to persecution (e.g. discrimination in different forms), in some cases combined with other adverse factors (e.g. general atmosphere of insecurity in the country of origin). In such situations, the various elements involved may, if taken together, produce an effect on the mind of the applicant that can reasonably justify a claim to well-founded fear of persecution on “cumulative grounds”. Needless to say, it is not possible to lay down a general rule as to what cumulative reasons can give rise to a valid claim to refugee status. This will necessarily depend on all the circumstances, including the particular geographical, historical and ethnological context.
Such a cumulative conclusion is dependent on the making of findings of fact in support of the applicant in relation to various incidents or activities. The Tribunal has not been able to do that in this particular case.
Further critically the Tribunal was unable to satisfy itself that the applicant had a subjective fear. The Tribunal said at Court Book page114:
The available country information, the lack of any substantiated evidence of the applicant suffering any Convention related harm and the circumstances in which the protection visa application was made, lead to the Tribunal finding that it is unable to be satisfied that the applicant has a subjective or objective fear of persecution for a Convention reason.
Thus the Tribunal found that the applicant held no such fear. Of particular relevance in reaching that conclusion was the Tribunal’s concern about the two years or more that it took the applicant after his arrival in Australia on the first occasion to lodge a protection visa application. As Carr J has said in the Cheinmora v Striker Resources NL& Ors (1996) 142 ALR 21 at 40, this is a relevant consideration “which the Tribunal was obliged to take into account”.
The second particular for the first ground is as follows:
The Tribunal erred in failing to apply the correct test of subjective and objective fear in failing to consider whether there was any real chance that the applicant may suffer persecution in the reasonably foreseeable future by reason of the involvement of his father in political activities and by reason of his High profile.
To the extent that I understand this ground, it seems to me that it relates to the Tribunal’s findings as to the father’s political activities, in particular whether he had such a high profile and had been President of the ISYF and whether he had been imprisoned. Here again the Tribunal made adverse findings of fact that, based on the evidence before it, it could not be satisfied that he was the President of the ISYF or that he had been jailed. Furthermore, it considered that the authorities would not pursue the applicant or any member of his family. These findings, as the respondent said, effectively deal with the allegation that the father’s profile would be a cause of harm to the applicant.
The remaining three particulars under Ground 1 are:
The tribunal erred in interpreting the country information to reach its conclusion that the applicant was not at any risk and failed to address the proper subjective and objective test of well founded fear.
The Tribunal did not correctly interpret and take into proper consideration the observations made in CX 17032 (RD 125- 126)
The Tribunal did not correctly interpret the information contained in INDIA ASSESSMENT and take into consideration the information in making its finding on the issue relating to the question of real chance and whether the fear of the applicant was well founded.
I note that the Tribunal reached a finding that the applicant did not hold any subjective fear based on the facts before it. All these particulars cavil with the merits of the Tribunal’s fact finding and ask the Court to enter into a fact finding exercise itself. This would usurp the role of the Tribunal and is something the Court is not empowered to do. Ground One must be rejected.
Ground 2
The second ground states:
The Tribunal committed a jurisdictional error in as much as the applicant was denied procedural fairness and natural justice.
The first particular in this ground is that
The Tribunal failed to make any inquiry to obtain any further information from the applicant with respect to matters, which it considered to be of critical importance and made adverse findings by relying on mere speculation.
The claims made by the applicant are misconceived. It is not for the Tribunal to make out an applicant’s case. It was said by Gummow and Hayne JJ in Abebe v Commonwealth (1999) 197 CLR 510 at [187]:
It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.
Furthermore, although the Tribunal has certain powers to obtain additional evidence “the Act does not impose any duty or obligation to do so” (Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ).
Therefore there was no duty on the Tribunal to make any particular inquiry or to obtain any further information from the applicant with respect to these matters. As has been noted, the Tribunal invited the applicant to the hearing. There was no response at that stage from the applicant. The applicant did not attend. At a later date the Tribunal was in contact with a newly appointed migration agent for the applicant who informed the Tribunal that he was aware that there had been an invitation for a hearing. The applicant had only instructed him to deal with the matter after the Tribunal had handed down its decision. So it appears that the applicant deliberately chose not to attend the hearing. He cannot then complain that he was denied procedural fairness in the way asserted in the particulars.
The second particular was not pleaded in the amended application but after objection from the respondent I allowed the applicant to make submissions on this ground today. That particular is as follows:
The Tribunal acquired information regarding the change in political situation in India from the 2000 Report and relied [on it] to reach its critical finding and the information was not disclosed to the applicant and the applicant was not afforded any fair opportunity to comment and respond to that information.
This particular is similar to one that was asserted in SZDTB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 306, in the hearing on the morning of the day on which this current matter was heard. In SZDTB I also gave leave to the applicant to amend the application. In essence, what Mr Patel for the applicant was asserting was that when the applicant declined to attend a hearing, he thought the decision would be made only on the material in the departmental file and his application. He was not aware that adverse information, for example in the United Kingdom Home Office Report of 2000, would be relied upon by the Tribunal.
Having not been provided with an opportunity to answer this material, the applicant claimed he was denied procedural fairness. However, even less so in this matter than in SZDTB is there any evidentiary basis for suggesting that any such misrepresentation was made. The applicant was advised after he had made his application to the Tribunal in a letter dated 25 May 2000:
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.
Later in the letter the Tribunal makes it abundantly clear to the applicant that if he has any new documents or written evidence he should send them to the Tribunal.
On 21 August 2000 the applicant was sent a letter inviting him to a hearing on the 21 September 2000. That letter contained the following words:
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.
Again, it was made clear to the applicant that if he had any documents or written arguments he wanted to put to the Tribunal, he should send them.
It is clear to me from this material that no representation was made to the applicant that the Tribunal would only look at a restricted number of documents – that is the departmental file and the application – and would not be looking at any other information on the Tribunal file relating to these sorts of issues. No oral evidence was given by the applicant at the hearing in this Court in support of this contention.
The applicant declined to go to the Tribunal hearing. He had a fair warning that the Tribunal was not prepared to make a decision in his favour on all the material before it. I cannot see any unfairness in what the Tribunal has done.
Another issue is whether there were any fresh issues raised by the Tribunal. The only two fresh issues to which I was referred related to the changed situation in the Punjab and the possibility of relocating elsewhere in India. The same material was reproduced in the decision that I am now considering as in SZDTB.
In the primary decision – that is the decision of the delegate – the improved situation in the Punjab and the relocation possibilities were clearly spelt out in the delegate’s decision at Court Book 76. Again the applicant was put on notice concerning these matters - the improved situation in the Punjab and relocation. He had plenty of opportunity to comment and he declined to attend the hearing of the Tribunal. He cannot now complain that he has been denied procedural fairness.
The third particular under the heading of procedural fairness – although it does not suggest any unfairness - is :
The Tribunal erred in making a finding that the applicant can relocate without considering the question whether in view of all the personal circumstances of the applicant, could the applicant relocate in some other part of India without undue hardship? The Tribunal did not consider the question of hardship and the Tribunal failed to give proper reasons in respect of its finding that the applicant can relocate to other parts of India.
The Tribunal’s discussion on the question of relocation starts at Court Book pages 113-114. It is prefaced with the words:
Even if the applicant’s claims of his father’s activist role in the I.S.Y.F. or some other related body and of his father’s consequent periods of detention were valid, the Tribunal could also consider whether the applicant could live in another part of India rather than the Punjab.
The relocation finding was an alternative finding by the Tribunal. In view of the Tribunal’s conclusion that the applicant has neither a subjective fear nor objective fear of persecution – and I have accepted that there is no legal error in these findings – it was unnecessary for the Tribunal to consider the question of relocation. I therefore do not need to give any detailed consideration to this finding. It is worth noting again however that the Tribunal’s finding on relocation was made on the basis of the information that it had before it.
Once again, if the applicant had failed to put forward material evidence to suggest that relocation would cause undue hardship that failure cannot be visited upon the Tribunal. But as I have indicated, it is unnecessary for me to make a finding on the relocation issue.
The second ground of review – the procedural fairness ground – must also be rejected.
Conclusion
The respondent Minister has submitted that the application must be dismissed as no reviewable legal error has been disclosed. I agree. It is apparent that the Tribunal was unable to make any factual findings in support of the claims made by the applicant. The conclusions of 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 this decision. I find the decision of the Tribunal is a privative clause decision having regard to the authority of the High Court in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
As the application to this Court was filed considerably outside the 28 days allowed for by s 477(1A) of the Migration Act 1958 (Cth), it is incompetent.
I therefore dismiss the application.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Kelisiana Thynne
Date: 1 April 2005
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