SZDTE v Minister for Immigration - [2005] FMCA 297

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDTE v MINISTER FOR IMMIGRATION

[2005] FMCA 297

MIGRATION – Review of decision of Refugee Review Tribunal – refusal of protection visa – Sikh independence movement in India – constructive failure to exercise jurisdiction – correlation between Sikh religion and politics – misconstrued and misapplied law – failure to use correct test – no reviewable legal error – application dismissed.

Migration Act 1958 (Cth)

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Ratumaiwai v Minister for Immigration & Multicultural Affairs [2002] FCA 311

Applicant:

SZDTE

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG1696 of 2004

Judgment of:

Mowbray FM

Hearing date:

22 February 2005

Delivered at:

Sydney

Delivered on:

22 February 2005

REPRESENTATION

Counsel for the Applicant:

Mr J. Patel

Solicitors for the Applicant:

Harpers Solicitors

Counsel for the Respondent:

Mr J. Smith

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant is to 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

SYG1696 of 2004

SZDTE

Applicant

And

MINISTER FOR IMMGRATION & 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 8 May 2000 and handed down on

18 May 2000.
The applicant is a citizen of India who arrived in Australia on

22 October 1997 on a visitor visa. On 2 December 1997 he applied for a protection visa. That application was refused by a delegate of the Minister on 18 May 1998. The applicant lodged an appeal to the Tribunal on 1 June 1998 and a hearing was held on 14 March 2000. The Tribunal affirmed the decision of the Minister’s delegate not to grant a protection visa to the applicant on 8 May 2000. The decision was handed down on 18 May 2000. An application was made to this Court on 3 June 2004.

Claims before the Department and the Tribunal

The applicant claims to be at risk in India due to his association with the Sikh movement and in particular due to his close association with the leader of the movement, Bhai Surinder Singh Shinda (Bhai). He claims that in September 1989 when Bhai was wanted by the police, he was blindfolded by the police and taken to an undisclosed detention centre. He was questioned for information about Bhai by a senior ranking Hindu officer and offered money and protection to be an informant. When he refused he was physically abused and experienced “third degree torture”.
He claims that after 11 months his family paid a municipal councillor for his release. From August 1990 he had to report regularly to the police. Some police officers questioned him about weapons. With intervention by the municipal councillor he was only required to report once a month. He claims that two years later police again kidnapped him and he was beaten by a drunken officer.

Tribunal decision

The critical findings of the Tribunal are as set out at paragraph 4 in the respondent’s submissions:
a.The applicant does not have a significant profile in the Sikh independence movement: CB 69.8;
b.There is no risk of persecution in the Punjab to those, like the applicant who have no profile in human rights work and a limited and insignificant profile: CB 70.5;
c.It is reasonable to expect the applicant to relocate and if he does he will not face persecution: CB 70.9.
As a consequence of these findings and having considered the applicant’s claims individually and cumulatively, the Tribunal was satisfied that he did not have a well-founded fear of persecution upon return to India.

Consideration

First ground

The first ground set out in the applicant’s amended application 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.
Particulars
(1) The Tribunal misunderstood the basis of the applicant’s claim of fear and considered his claim on an entirely wrong basis and constructively failed to exercise its jurisdiction in accordance with law and its mandate.
(2) The Tribunal considered the applicant’s claim of fear on the wrong basis that he feared persecution by reason of his religious belief where as the applicant had made his claim that he feared persecution by reason of his political beliefs and imputed political beliefs.
Where an applicant to the Court claims constructive failure to exercise jurisdiction, it is necessary to first determine the claim made by the applicant and then examine how the Tribunal handled it.
What was the nature of the applicant’s claim? This can be discovered from an examination of various documents provided to the Tribunal and by the information provided by the applicant at the oral hearing.
First in his application to the Department of Immigration and Ethnic Affairs (the Department) at Court Book 17, in response to a question “Why did you leave that country?”, the applicant said:
I left India due to fear of death. I was made a victim of state repression for holding my distinct socio political and religious opinions.
At Court Book 18 in response to a question “What do you fear may happen to you if you go back to that country?”, the applicant said
I will be tortured to death if I return to India due to my activities with the freedom struggle.
At Court Book 19 in response to a question “Why do you think they will harm/mistreat you if you go back?”, the applicant referred to a number of matters. He referred to his association with the ongoing freedom struggle of the Sikh nation due to his “close association with Bhai Surinder Singh Shinda”. He mentioned the incident in 1989 when Bhai was sought by the police and he was kidnapped and taken to an undisclosed place. He then referred to a series of incidents of abuse. At Court Book 20 he referred to being questioned and beaten by an officer about his association with the Sikh Student Federation and his proximity to Bhai. He confessed to his close association with Bhai
At Court Book 22 in response to a question “Do you think the authorities of that country can and will protect you if you go back?”, he said:
No, Indian authorities will not protect me if I return because I am a Sikh who wants freedom and equal citizen rights and they keep us as slaves.
He only provided a short statement in his application to the Tribunal but at Court Book 41 he noted:
The fact that I am clean-shaven Sikh does not mean I am of least interest to the authorities of India. I am clean-shaven due to compulsion. I’m a refugee by compulsion, not choice.
He also indicated that he would provide a submission later, something he did not do.
The applicant attended a hearing at the Tribunal on 14 March 2000. At the hearing he was asked why he did not wear a turban if he was a Sikh and whether he was truly committed to the Sikh cause. At Court Book 57 he was asked about his time in Thailand between June 1994 and 1996. He was also asked what he had done to contribute to the Sikh cause. He referred to his activity at meetings. He delivered messages, talked to people about freedom and undertook awareness raising activities.
He was further questioned on the possibility of relocation. The Tribunal put to him in general terms some country information which indicated that normalcy had returned to the Punjab.
The material to which I have referred contains the totality of the applicant’s claims to the Department and to the Tribunal. A fair reading of that material suggests to me that his major concern was that he was at risk in India due to his association with the Sikh movement and especially due to his close association with Bhai. He expressed his support for freedom and equal rights.
In my view his claim is one based on political opinion, although as I have noted at Court Book 17 there is an express claim based on religion. How did the Tribunal handle the applicant’s case?
First, I accept the respondent’s submission that for Sikhs, religion and political opinion are not separate matters. They are in a sense opposite sides of the one coin. Mr Patel for the applicant suggested they overlap, but I think this understates the position.
The Tribunal’s reasons are at Court Book 69 to 71. The Tribunal notes that the claims of the applicant arose because of his association with the freedom struggle of the Sikh nation. The applicant asserts a close association with Bhai. However the Tribunal was not satisfied that the applicant had a high profile in that association and found that he was unable to articulate any significant action he took that would now give rise to a fear of persecution.
The Tribunal made an assumption that the applicant had been detained at the height of the troubles in the Punjab. Nevertheless, it concluded that he was no longer at risk of persecution in India. In reaching this conclusion it noted his role in the struggle was limited, general and peripheral. He did not have a significant profile in the Sikh independence movement. The applicant could not point to any high profile activities in which he had been involved and he had done nothing of any significance in Australia to raise his profile. He never had a leadership role in any Sikh organisation and there is no evidence to indicate that the applicant was suspected of anti-state activities. He did not closely adhere to fundamental principles of Sikhism. Here the Tribunal referred to the dress issue.
It was on this basis that the Tribunal reached the conclusion that the applicant could not be perceived as a high profile militant suspect, a leader of a militant organisation, or someone suspected of a terrorist attack. It also noted that any association he had was neither close nor significant and was now remote in time.
Of particular importance at Court Book 70 is the consideration of whether or not the applicant could relocate. The Tribunal referred to country information about the risk of persecution in the Punjab having significantly reduced over the years, particularly since the applicant left India in 1997. It felt that there was no risk to persons like the applicant who had no profile in human rights work and a limited and insignificant political profile. Even if the applicant did perceive that he was at risk, the Tribunal was of the view that any risk did not extend to India as a whole. It found it reasonable that the applicant could relocate to one of several cities or areas in India which served as a haven for Sikhs who had a fear in the Punjab. It concluded that relocation was safe and reasonable and therefore a feasible option for the applicant.
A fair reading of the findings and reasons as a whole does not support Mr Patel’s submission that the critical issues raised by the applicant were not addressed. This is especially so given the close relationship between religion and politics for Sikhs in India. In my view the questions of imputed political opinion, actual political opinion and religious belief were addressed.
In Ratumaiwai v Minister for Immigration and Multicultural Affairs [2002] FCA 311, Hill J said:
14. Where a Tribunal fails to address a matter, the decision on which could affect the outcome of the Tribunal's review, the failure of the Tribunal to do so will constitute a jurisdictional error because the Tribunal will have failed to exercise its jurisdiction. Such a failure is often referred to as a constructive failure to exercise jurisdiction. However, it will normally only be the case that the Tribunal has made a jurisdictional error by failing to address an issue where the matter is raised by the evidence and the applicant requests the Tribunal to address the matter. It is not for the Tribunal to make out a case for an applicant, nor is it, in my opinion, for the Tribunal to have to dredge through the totality of material which may be before it to discover whether somewhere among that material there is an argument that might be relevant to an applicant's case. It will be different where the facts before the Tribunal clearly raise an issue, a decision on which may affect the outcome of a review. In such a case the Tribunal will usually have an obligation to address that issue, even if the applicant does not request directly that the Tribunal do so: Paramanantham v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63; Ahvazi v Minister for Immigration and Multicultural Affairs [2002] FCA 279 at par 16-18.
I cannot see that the Tribunal has failed to address an issue raised by the evidence or requested by the applicant. Nor do I think that there were facts before the Tribunal which clearly raised an issue which should have been addressed by the Tribunal, but which it did not. As a consequence this ground must fail.

Second ground

Ground two states:
2. 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.
Particulars:
(1) 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 test and objective test of well founded fear.
(2) The Tribunal erred in its conclusion that the detention in jail of the applicant’s family would not amount to persecution if the detainee could secure his release by paying a bribe.
(3) The Tribunal erred in holding that the country information supported its conclusion that only those who had high political profile were likely to encounter persecution.
As to the first and third particulars, and possibly the second, the applicant is really seeking to have the Tribunal engage in a new fact finding exercise. He is cavilling with the Tribunal’s findings of fact. As is clear from the authorities this Court has no power to usurp that of the Tribunal and engage in fact finding in these circumstances.
The second particular misunderstands a finding of the Tribunal. It refers to a section in the Tribunal’s reasoning which relates to a claim that plain clothes police were watching the family house in India. The applicant alleged that people taken to jail could be released by paying a bribe. The Tribunal concluded that if this was so, the police were only interested in the money and not motivated by any Convention reason. Furthermore the Tribunal considered that in any event the applicant could relocate. I can discern no error of law in the way the Tribunal approached its task, having regard to this particular claim by the applicant.
Mr Patel did not seek to advance any further arguments other than those which are set out in the particulars in the amended application. The second ground must be rejected.

Third ground

Ground three states:
3.The Tribunal fell into jurisdictional error in as much as it failed to apply the correct test of “real chance” to evaluate whether the applicant had a well founded fear of persecution as required by law.
Particulars
The Tribunal did not consider whether there was any real chance even if it was less than ten percent that Applicant would be persecuted by reason of his political belief or imputed political belief. The country information did not rule out any real chance of persecution.
I accept and adopt the respondent’s submissions on this ground, noting that no submissions were put by Mr Patel to the Court:
This ground overlooks the finding by the Tribunal that the applicant had no well-founded fear of persecution upon return to India: CB 71.3.
As the respondent has said, this finding uses the words required by the Convention rather than an explanatory form of them. The Tribunal clearly understood the level of risk inherent in this phrase. It found “no risk to persons like the applicant”.

Fourth ground

The fourth ground relates to relocation:
4.The Tribunal misconceived and misapplied the law relating to relocation.
Particulars
The Tribunal misinterpreted the country information cited by it in its decision and misapplied it to the issue of relocation. The Tribunal erred in its conclusion on the evidence that was before that the applicant could relocate to other parts of India without undue hardship.
Again this ground amounts to cavilling with the findings of fact made by the Tribunal. This Court cannot engage in merits review. Furthermore an examination of the relocation finding by the Tribunal indicates that it is well within the parameters and requirements set by the Full Federal Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437. First, the applicant has to be safe in other parts of India and secondly it has to be reasonable for the applicant to relocate. The Tribunal addressed both these issues. I can see no error of law in its findings on relocation.

Conclusion

I agree with the Minister’s submissions that the application must be dismissed as no reviewable legal error has been disclosed. I have examined each of the grounds raised by the applicant in turn and can find no merit in them. The findings that were made by the Tribunal were reasonably open to it on the material before it. I am satisfied the Tribunal made no legal error going to jurisdiction in coming to its decision. However the Tribunal could have prepared its reasons somewhat more carefully and clearly.
The application must be dismissed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Mowbray FM

Associate:

Date: