SZDWM v Minister for Immigration - [2005] FMCA 335

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDWM v MINISTER FOR IMMIGRATION

[2005] FMCA 335

MIGRATION – RRT decision – Indian Sikh claiming police persecution – Tribunal found claims not credible – correct use of country information – no jurisdictional error found.

Migration Act 1958 (Cth), ss.417, 483A, Part 8
Judiciary Act 1903 (Cth), s.39B

Dissananayake v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 976
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
NAHI v Minister for Immigrationand Multicultural and Indigenous Affairs [2004] FCAFC 10
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30
Win v Minister For Immigration & Multicultural & Indigenous Affairs (2001) 105 FCR 212

Applicant:

SZDWM

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 1887 of 2004

Judgment of:

Smith FM

Hearing date:

15 March 2005

Delivered at:

Sydney

Delivered on:

15 March 2005

REPRESENTATION

Counsel for the Applicant:

Mr Campbell

Counsel for the Respondent:

Miss Morgan

Solicitors for the Respondent:

Sparke Helmore

ORDERS

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1887 of 2004

SZDWM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under s.483A of the Migration Act 1958 (Cth) challenging a decision of the Refugee Review Tribunal dated 24 July 2002 and handed down on 13 August 2002. The Tribunal affirmed a decision of a delegate refusing to grant a protection visa to the applicant.
Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act.” In relation to matters such as the present, that jurisdiction is conferred by s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 those limitations have the effect that I must be satisfied that the Tribunal decision is affected by jurisdictional error before I have power to it set aside and remit the matter for further hearing by the Tribunal. The Court itself does not decide whether an applicant has good claims to a protection visa, but considers the legal validity of the Tribunal's decision and decision making process.
Before addressing the grounds for review argued on behalf of the applicant, I should note that the applicant sought to explain his delay in commencing proceedings in this Court on 18 June 2004. On evidence filed by him and by the respondent, it appears that soon after the Tribunal decision was handed down he instructed a solicitor in Adelaide to commence a proceeding in the High Court. This was remitted to the Federal Court in February 2003 and given the file No.S173 of 2003. On 27 June 2003, Selway J dismissed the proceeding due to non compliance with procedural directions which his Honour had previously made. The applicant claims not to have been told about this outcome for a period, and that when he was told he sought to invoke the Minister's discretion under s.417 rather than commence fresh proceedings. He was told that his 417 application was refused in a letter dated 26 May 2004.
In this Court, the Minister initially moved for his application to be summarily dismissed based on the previous litigation history of the matter and lack of merits, but I concluded that the applicant should be allowed an opportunity to present submissions going to the merits of a judicial review application and set the matter down for final hearing today
The applicant has on the three occasions that the matter has been listed in this Court, that is on the first court date, the return of the respondent's motion in November of 2004, and today, been represented by counsel instructed directly by his client. I deduce that the application filed in this Court was also drafted by counsel, since it shows a level of competence not often seen in applications in this Court.
Counsel for the Minister today did not submit that, if jurisdictional error were made out, relief should be refused on the basis of delay or the applicant’s conduct in the previous litigation. I therefore do not need to make findings assessing that previous history.
The applicant arrived in Australia on a three month visitor's visa on

4 December 2000. He lodged an application for a protection visa on

12 January 2001. In his application he indicated that he was a young man aged 22, and made a statement narrating events which he claimed gave rise to a fear of persecution if he returned to his country of nationality, India. I consider that the Tribunal correctly summarised his claims as follows:
His family is very religious. He claims that his uncle and younger brother are supporters of Babbar Khalsa, which is considered to be a terrorist group by the Indian authorities. He claims that his younger brother and uncle’s activities are limited to attending rallies, collecting funds and propaganda for the Khalistan movement. He claims he was never a member of this movement, but was a member of the All India Sikh Student Federation, which engaged in peaceful protest in 1990.
He claims that the police arrested his uncle from the applicant’s home; but his uncle managed to escape, and they received phone call from his uncle. He claims that they were subjected to police violence. He claims that he was beaten up a little because of his age but his father was badly tortured and kept in detention for several months. He claims that his father was released after paying a huge amount of money as a bribe through a middle man, but the police kept coming to the applicant’s home and kept harming them.
The applicant claims that in 1999 his younger brother left home because the police suspected that he had joined his uncle. The applicant claims that he was arrested in July 2000 and they wanted to know the whereabouts of his uncle and brother and if the applicant had any contact with them. He claims that he was treated badly and after being released he had to report to the police on a weekly basis. He claims that sometimes the police asked him to stand or sit all day and sometimes they beat him up. He claims that he became the victim of violence and human rights abuses by the police. He claims that although there was a promise of an investigation into human rights abuses, it has not happened, and the police have not been punished for their abuses. He claims that under these circumstances he does not think the Indian authorities can protect him in India.
After the delegate refused to grant a protection visa on 21 March 2001, the applicant applied for review by the Refugee Review Tribunal, assisted by an agent. He and his agent attended a hearing conducted by the Tribunal on 20 June 2002. A transcript of what transpired at the hearing is not in evidence before me, but the Tribunal describes the hearing and I have no reason not to accept its accuracy. It does not purport to be a complete account of everything said at the hearing.
The Tribunal records statements made by the applicant concerning his uncle and brother's involvement in the Babbar Khalsa and his claims that his uncle, brother and father were beaten by police and that he himself was arrested, beaten up and tortured in July and August 2000. The Tribunal records that it put to the applicant various aspects of country information which it thought were inconsistent with aspects of the applicant's claims, including the following:
The Tribunal put to the applicant that the Independent Information before the Tribunal states that it is not aware of any politically active Sikhs still at risk of political persecution in the Punjab or India as a whole. The Tribunal put to the applicant that as he was not involved in any political activities, it had difficulty accepting his claims. The Tribunal stated that it is aware of the abuses against the Sikhs in the early 1990s, however the information before the Tribunal indicates that the situation has greatly improved for the Sikhs in India and should they be subject to human rights abuses there are now provisions under Indian law for redressment.
The Tribunal does not record what responses the applicant made. However, it notes that prior to the conclusion of the hearing the applicant's adviser submitted three documents, being a one page extract from a US Department of State country report in 2000 referring to human rights abuses in India generally, and two news items translated from Punjabi. I shall refer to these documents further below.
In its reasons, the Tribunal extracts lengthy passages from an assessment prepared by the country information policy unit of the UK Home Office dated April 2001. The material appears to me to be pertinent to the Tribunal's assessment of the applicant's claims, and I did not understand counsel for the applicant to contend otherwise. The Tribunal also refers to DFAT information concerning Indian passport and airport procedures.
In its reasons under the heading "Findings and Reasons", the Tribunal accepted that the applicant was an Indian national and dealt with his claims very shortly as follows:
The Tribunal does not accept the applicant’s claims that his brother and uncle are wanted terrorists. In the hearing the applicant claimed that his brother and uncle did not have high profiles in the movement and their only activities were attending rallies. At most the Tribunal is prepared to accept that the applicant is a Sikh and the applicant’s uncle and brother may have attended Babbar Khalsa rallies in the early 1990’s. The Tribunal does not accept that the police detained the applicant in 1997 and again in 1998, because the applicant’s brother and uncle are wanted terrorists. The Tribunal accepts that they are at most low level supporters of the Babbar Khalsa movement and not terrorists or perceived as terrorists.
The Tribunal accepts, on the basis of the independent information set out above, that Sikhs, particularly young Sikh males, were at risk of persecution in India in the mid to late 1980’s. This was a horrendous period of time in India’s history and many atrocities were committed against the Sikh population. However, the independent information before the Tribunal clearly indicates that the wholesale persecution of Sikhs was at an end by 1992 when peace was restored and the situation began to return to normal. Things have continued to improve since the early 1990’s. Sikhs are not a persecuted group in India today. The Tribunal is not satisfied that the applicant’s uncle and brother were militants in the Babbar Khalsa movement. The independent information before the Tribunal indicates that the Sikh militant movement is no longer active in Punjab and the hard core militants have either been physically wiped out or are no longer in India. The independent information before the Tribunal clearly indicates that the few remaining Sikh militants are now based in Pakistan. Therefore, it follows that the Tribunal does not accept that the applicant has a well founded of persecution as a result of his relationship with his uncle and brother and their alleged activities.
The Tribunal does not accept the applicant’s claims to be credible and does not accept that he has ever suffered any form of past persecution in India. The Tribunal places no weight on any of the applicant’s claims of past persecution. Furthermore, the Tribunal is not satisfied that the applicant has ever been involved in any activity which would give him a profile or that would draw him to the attention of any potential persecutor. The Tribunal is not satisfied that the applicant has been candid about his claim to need Australian Government protection for a Convention reason. The Tribunal is satisfied that the applicant left India legally and on his own properly issued, Indian passport, which he stated at the outset of the hearing.
The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason.
The Tribunal's reasoning is compressed and needs to be considered carefully to understand the process followed by the Tribunal. This is partly due to the fact that it expresses conclusions at the start of its reasoning and at the end without describing a sequential reasoning process. However, reasons written in this form do not necessarily show that the Tribunal fell into error amounting to jurisdictional error (c.f. Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30 at [14]).
As I understand it, the Tribunal has understood and assessed the narrative put forward by the applicant and has rejected his claims to have suffered persecution at the hands of Indian police as not credible. It has reached that conclusion by comparing what he said against independent information, which it accepted, and which suggested that persons who had a “low level involvement as supporters in the Babbar Khalsa movement” would not have received the treatment which the applicant described his uncle, brother, father and himself as having suffered. I consider that this was a course of reasoning which was open to the Tribunal and does not reveal an improper use of country information when assessing the applicant’s claims to refugee status (see NAHI v Minister for Immigrationand Multicultural and Indigenous Affairs [2004] FCAFC 10 at [12]).
The application filed in this Court argued the following ground:
1.A central aspect of the applicant’s claims was that his uncle and brother were involved with Babbar Khalsa and were wanted by the authorities. The Tribunal rejected these claims. Specifically, the Tribunal found that the applicant’s brother and uncle were not wanted terrorists (p 12.4 of decision) and were not militants in the Babbar Khalsa (p 12.8 of decision). The Tribunal fell into jurisdictional error in making these findings on two grounds:
a)First, the Tribunal based its finding entirely on country information. Hence the word “Therefore” at page 12.10 of the Tribunal’s decision. The Tribunal’s reliance on country information contravened the statement by Kirby J in Re MIMA; Ex parte Applicant S20/2002 at [130] that: “[I]ndependant country information can never be determinative of the outcome of an individual case. Were it otherwise this would relieve the Tribunal of the need to consider individual circumstances.” For this reason, the Tribunal fell into jurisdictional error.
b)Second, despite the fact that the applicant’s claims focused specifically on Babbar Khalsa, the Tribunal failed to obtain and consider country information on this group. On this basis, the Tribunal either failed to properly carry out its function of reviewing the applicant’s claims, or the Tribunal failed to have regard to relevant information, giving rise to jurisdictional error.
I do not accept the contention made in particular (a), to the extent that I understand it. As I have indicated above, I consider that the Tribunal's use of country information was a correct use of general background knowledge about the current situation which was relevant to an assessment of the applicant's claims. I do not consider that the Tribunal has relied "entirely" on that information as is contended.
The Tribunal has, as I have indicated, assessed the claims against the country information, but I can see no jurisdictional error in it proceeding in that manner. As was said by the Full Court in NAHI (supra): “The very function of the Tribunal was to assess the appellants’ claims, both as to their inherent credibility and as to their consistency with other information known to the Tribunal about circumstances in the appellants’ country of origin.” In my opinion, the Tribunal has considered the applicant's "individual circumstances" and, therefore, has not fallen into the error suggested by Kirby J in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 at [130] quoted by the applicant.
Particular (b) as pleaded in the application contends that the Tribunal “failed to obtain and consider country information concerning the Babbar Khalsa group”. This contention was not pressed in argument before me and I do not consider that it has substance. The Tribunal has identified and extracted some information about this group in its reasons and I can find no error in how it has used that information.
No submission was made to me identifying other information concerning that group which was before the Tribunal and which rendered its use of the material from the UK Home Office irrational or so unreasonable as to give rise to a jurisdictional error. If the ground implies that the Tribunal had an obligation to investigate further, then in my opinion, such a duty did not arise in the circumstances of this case. It is well established that the Tribunal is not bound to exercise its discretions to investigate in circumstances where it is satisfied it has sufficient information before it (see Dissananayake v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 976 at [18], Win v Minister For Immigration & Multicultural & Indigenous Affairs (2001) 105 FCR 212 at [15], Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]).
In oral submissions today, this ground of review was developed by the counsel for the applicant by reference to the three documents that were tendered by the applicant's agent to the Tribunal at the hearing. It was submitted that they provided country information of such pertinence to an assessment of the applicant's claims that it could be inferred from the failure of the Tribunal to assess the documents under its heading "Findings and Reasons" that it had made jurisdictional error. It was suggested that the error might have been a failure of procedural fairness, although there was no reference to authority.
I consider that there is a simple answer to these contentions. It is that the three documents tendered at the hearing did not in fact have the contended significance to a proper assessment of the applicant's claims.
One of the two newspaper reports which were tendered concerned the acquittal of three Sikhs arrested in 1999 who had been tried as dangerous terrorists of Babbar Khalsa who were in possession of explosives. The second was a report of a person who had suffered abuse at the hands of an airport official in Delhi in 1998. I cannot see how either of the reports was of particular relevance to an assessment of the applicant's claims. The extract from the US country report was not directed at the position of Sikhs or other circumstances relevant to the applicant's claims.
In my view, it was open to the Tribunal to regard the material as not warranting specific analysis when describing its ultimate reasoning process. I am certainly not prepared to infer that the Tribunal did not read the information tendered and ignored it in reaching its conclusions. In its reasons it carefully recites and describes the information which was tendered, and it would be quite unwarranted to draw an inference that the Tribunal ignored it.
For the above reasons, I consider that no ground of jurisdictional error has been made out in the proceedings before me, and I dismiss the application.

RECORDED : NOT TRANSCRIBED

I shall order the applicant to pay the respondent's costs in the sum of $4000.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 24 March 2005