SZEOG v Minister for Immigration

[2005] FMCA 1210

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEOG v MINISTER FOR IMMIGRATION [2005] FMCA 1210

MIGRATION – Refugee – Tribunal misunderstood the basis of claims made – relevant consideration – interpretation of “persecution” – relocation. 

Migration Act 1958, ss.422(1)(a), 424A(3)(a), 424A(1)
Federal Magistrates Court Rules 2001, Rule 21.02(2)(a)

NAMW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 264
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

Applicant: SZEOG

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 3074 of 2004

Judgment of: Nicholls FM

Hearing date: 9 May 2005

Date of Last Submission: 2 May 2005

Delivered at: Sydney

Delivered on: 1 September 2005

REPRESENTATION

Counsel for the Applicant: Mr. J. Patel

Solicitors for the Applicant: Bharati Solicitors

Counsel for the Respondent: Mr. J. Bird

Solicitors for the Respondent: Phillips Fox

ORDERS

1. The application is dismissed.

2. The applicant to pay the respondent’s costs set in the amount of $3900 pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3074 of 2004

SZEOG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application filed in this Court on 14 October 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 28 August 2004 and handed down on 17 September 2004 to affirm the decision of a delegate of the respondent Minister made on 29 October 2003 to refuse a protection visa to the applicant.

2. The applicant is a national India. His claims put before the respondent's Department are in his application for a protection visa reproduced at Court Book 1 to CB 22 and in particular at CB 18 to CB 20. He claimed to be a member of Shiromani Akali Dal (Badal group) (SADBG) a Sikh political party. He claimed to fear harm by Punjabi police after an election in 2002 when an opposing party came into power in Punjab and started to harass close personal supporters of the leader of his party. He claimed to be vulnerable because of his association with his party's leadership and that in his hometown he had been the general secretary of the party reporting to the local leader. He claimed that some of his colleagues had been arrested and that his house had been raided on two occasions and due to his fear of being detained and badly treated in an Indian police station he had to relinquish his business interests which caused severe financial hardship. He claimed to have gone into hiding at his parents-in-law's house to avoid police and said that he could not live anywhere in India without fear. He specifically feared harm if he were to return to India from the police as he stated they obeyed the directions of the Chief Minister of the Punjab State.

3. The Minister’s delegate refused his application and the decision record is reproduced at CB 46 to CB 51. The delegate relied in part on independent country information, which is referred to at CB 49 to CB 50 showing the applicant’s party to be a moderate party, and that there had been no reports of human rights abuses in the Punjab in 2002 and that there was information to show that members of this party would not be treated any differently to any other party. The delegate also had serious doubts with several elements of the applicant's account and was satisfied that the applicant’s fear of persecution in India was not well founded. The applicant sought review of this decision with the Tribunal and the application to the Tribunal is reproduced at CB 52 to CB 55. He was assisted by a migration agent. On 2 April 2004 the Tribunal wrote to the applicant (CB 58 to CB 59) and advised that on the material before it was unable to make a favourable decision and invited the applicant to attend an oral hearing before the Tribunal to give evidence and present arguments in support of his claims. The applicant subsequently attended the hearing on 1 June 2004. After the hearing the Tribunal was reconstituted pursuant to s.422(1)(a) of the Migration Act. The Tribunal set out how it saw the applicant's claims and evidence in its decision record at CB 84.4 to CB 87.6. The Tribunal also had access to the oral evidence given to the Tribunal by the applicant on 1 June 2004.

4. The Tribunal, based on the material before it, found that the applicant was not a credible witness. It found variously that the Akali Dal Party is a moderate Sikh Party, controlled by the dominant farming community in Punjab and that it was a strong ally of the dominant Party, BJP and that the Akali Dal was not a national party as it only contested elections in seats in Punjab. The Tribunal could find no independent reports of Akali Dal members or activists being persecuted after the party's defeat in the elections in February 2002 (CB 88.8), nor could the Tribunal find evidence to suggest that police were carrying out a vendetta against the applicant’s claimed leader or his supporters (CB 89.3). While the Tribunal accepted that the applicant was a member of the Akali Dal Party and said that he had general knowledge of this party, it did not accept that the applicant was the general secretary of his local branch reporting to the local leader, or that he had undertaken political activities in support of the Party. The Tribunal based this on what it said was the applicant’s confusion about recent political events in Punjab and it did not accept that a person with the level of political involvement claimed by the applicant would not know when the party had lost power, particularly in view of his claims that personal supporters of the party were subjected to persecution after the party lost office and the Congress Party became the government (CB 89.5). Accordingly, the Tribunal rejected the applicant's explanation given at the hearing that it took more than a year after the Congress Party came to power for police to take an interest in him. The Tribunal also rejected the applicant’s claim that he was in hiding to avoid police (CB 89.8). The applicant made a statement that the election which led to the Congress Party gaining power was in September 2002, when it was quite clear that independent country information showed that the election was in February 2002, 16 months before the applicant had left India. The Tribunal consequently found that it could not accept the applicant was politically active, beyond being a member of the Akali Dal Party, and therefore did not accept that he was persecuted as claimed (CB 89.9). Further, the Tribunal said it was strengthened in this view by the evidence that he had gone on several business trips overseas during the period following the elections and he did not come to the adverse attention of the authorities, and that it was notable that he did not seek protection while he was in any of these other countries (CB 90.1). Taking all of this into account, the Tribunal found that the applicant had not been persecuted in the past by the Indian authorities for reason of his political opinion and found that the applicant had fabricated his claims of political persecution to provide a basis for applying for a protection visa (CB 90.5). Further, having regard to these findings, the Tribunal found that if the applicant did have problems with his business there was no evidence that this was as a result of his membership of Akali Dal and any imputed political opinion. The Tribunal did not find the applicant's explanation that he would never feel safe in any part of India to be convincing, and stated that if the applicant did not want to return to the Punjab that he could live in other parts of India where he had previously resided with his relatives (CB 90.7). The Tribunal found that as the applicant had not been persecuted in the past and did not accept that there was any evidence of Akali Dal supporters being persecuted during the period since the applicant left India that there was not a real chance that the applicant would be persecuted for reason of his political opinion or any other Convention reason if he were to return to India now or in the reasonably foreseeable future and on this basis the applicant's application was refused.

5. The applicant's application to this Court filed on 14 October 2004 and a subsequent amended application filed on 19 January 2005, were filed with the assistance of solicitors who represented the applicant. The applicant continued to be represented by solicitors at the hearing before me was represented by Counsel, Mr. J. Patel. Mr. J. Bird appeared for the respondent Minister. On 2 May 2005 the applicant's solicitors filed an outline of the applicant’s written submissions drafted by Mr. Patel. These submissions do not argue in support of the claims in the application or amended application and Mr. Patel confirmed, at the hearing before me, that the grounds in the applications were abandoned and sought to argue four new grounds arising from the oral submissions. Mr. Bird had no objection and the hearing proceeded on this basis. The four grounds as put forward by Mr. Patel are:

   1)That the Tribunal made jurisdictional error in that it misunderstood the basis of the applicant’s claim.

   2)That the Tribunal erred in its application of the correct law in that it did not take into account a relevant consideration and took into account an irrelevant consideration.

   3)That the Tribunal erred in its interpretation of the term “persecution” for the purposes of Convention.

   4)That the Tribunal made errors in its findings relating to the applicant being able to relocate to another part of India. 

6. The applicant's first complaint is that he did not claim that he was a wanted person or that he would be arrested if he were to return to India. The assertion is that the Tribunal proceeded with the claim on the basis that the applicant was unable and unwilling to return to India because he was wanted by the authorities and that the police would persecute his if he were to return to India. Mr. Patel argued that the thrust of the applicant's contention, that is the applicant’s claims before the Tribunal, were that he was a political activist, that he was a member of the political party which had lost power and that he was associated closely with the leader of this political party and that following the change of government, the reality was that this other political party which was now in power misused their powers to oppress and persecute other members or active members of the opposition parties to discourage them from taking part in politics. The claim according to Mr. Patel was that the new party in power used its power to persecute and “make things difficult” for those who were associated with the local leader of the applicant’s party and whoever was supporting that party. Mr. Patel, when pressed by me, submitted that the fear of harm was that the new government, that is the political party that subsequently came to power, enjoyed the privilege of misusing the power because they had “influence over the police” and that there was corruption. He submitted that the harm that the applicant feared was specified in general terms and that was that his business would suffer in circumstances where the party that had come into power was looking to persecute those who were associated with the leader of the previous party in power and the members of the Akali Dal who had a high profile and that they would use the attack on the applicant’s business as a means of harassing him into not taking part in political activity and that this was all designed to weaken the opposition party.

7. This ground fails on the material before me. Firstly, the applicant clearly claimed to be a member of the political party Akali Dal and claimed to have a high profile position in this party. He clearly claimed to fear harm from the local police who he said acted against other close supporters of his local leader in a context of corruption, following the election. He claimed that due to the fear of being detained and badly treated by the police he had to relinquish his business interests which caused him severe financial hardship. The Tribunal clearly reports all of these elements in its recounting of the applicant's “Claims and Evidence” in its decision record (see CB 84.9 to CB 87) and dealt with them in its “Findings and Reasons” (CB 88.8 to CB 90). The Tribunal, in addition to dealing with the claims as put by the applicant, specifically looked at the issue now raised by Mr. Patel of the fear of harm because of the party now in power misusing its power and the impact that that had, and would have, on high profile members of the Akali Dal Party. The Tribunal specifically dealt with this issue. It found, as had been noted to the applicant at the hearing before the Tribunal, that there were no independent reports of Akali Dal members or activists being persecuted after the party's defeat in February 2002. It relied on independent country information which made no mention of these types of problems following the election of the Congress Party in Punjab (CB 88.9). Further, the Tribunal found there was no evidence to suggest the police were carrying out a vendetta against the applicant's former leader, or his supporters, and that there was country information that indicated that the police interest in the former leader was related to criminal prosecution for money-laundering and having bank accounts in tax havens (CB 89.3). Further, it found that there was no evidence that the new Punjab government was acting out of revenge against Akali Dal supporters, and that the applicant had not submitted any independent evidence that Akali Dal members were being persecuted. Although Mr. Patel did not submit any statutory breach in making this complaint, I note in any event, that the independent information on which the Tribunal relied as set out in its decision record, falls within the exception provided for in s.424A(3)(a) from needing to put this information to the applicant pursuant to 424A(1) (see NAMW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 264).

8. Mr. Patel further submitted that the Tribunal accepted that the applicant was a member of the Akali Dal Party and that the Tribunal dealt with his claim as his being a leader of the party, and did not consider the applicant's claims in the context of being an “ordinary member” of the Akali Dal Party who feared retribution from the new party in power. It is clear that the Tribunal did look at the applicant's claims that he was general secretary of his local branch (that is someone with a higher profile) and rejected this claim. Mr. Patel now seeks to argue that the Tribunal should have inferred from the applicant's claims that he was also an ordinary member of the Akali Dal and that it should have considered his claims in this light. There are a number of difficulties with making this claim now. Firstly, the applicant never asserted that he was an ordinary member of Akali Dal. His clear claims were that he had been active in the party for some years, and that he was the general secretary in the party reporting to the local leader and that because of the close association with the leadership of the party he was caught up in the harassment of the close supporters of the previous leadership. It is clear that the applicant put his claims as being an activist for the Akali Dal and the Tribunal dealt with the claims as put by the applicant. But secondly, the Tribunal also found as shown in its decision record at CB 89.3 that there was no evidence that the Punjab government were acting out of revenge against Akali Dal supporters (of whatever type) and the applicant had not submitted any independent evidence that such members were being persecuted. This precedes the part of the Tribunal's findings relating to the applicant's high profile and when read in context, clearly deals with the claim that Mr. Patel now submits should be inferred from the applicant's claims and that he is that he should have been considered in the circumstances of an ordinary member of Akali Dal. In this regard the Tribunal found there was just no evidence that the new Punjab government was acting out of revenge against any such supporters and members. This is sufficient to deal with this “inferred” claim.

9. In relation the second complaint Mr. Patel pointed to CB 149.6, being part of the independent country information before the Tribunal, where a “Tribune News Service Report” from India dated 29 June 2003, stated:

   “Congress leaders said their party workers would give a befitting reply to any attempt that was made by the Akali Dal workers to take the law into their hands thereby harassing the people.”

   Mr. Patel at first sought to rely on this quote as showing that the Congress Party was engaged in harassing the members of Akali Dal. Clearly when read in context of the whole article, this quote is in the context of the Congress Party launching an anticorruption campaign when it came to power and that this campaign was criticised by Akali Dal leaders saying they would resort to certain agitations, including traffic jams and that the Congress Party leaders responded by saying that there would be a befitting reply to any attempt that was made by Akali Dal workers to take the law into their hands. This does not appear to support the claim that the new Congress Party government would initiate action against former supporters of the Akali Dal for the purposes of forcing them out of politics. It merely says that in the context of looking at corruption issues, if there is civil disobedience there would be a befitting reply. This falls far short of the applicant's claims that there was a corrupt practice of targeting people who had been associated with the former government leadership. Mr. Patel ultimately conceded this point and submitted that he could not point to any country information before the Tribunal which would directly support the applicant. This ground, going to what Mr. Patel described as failing to take into account relevant considerations, must also fail.

10. In relation to the ground above Mr. Patel also submitted that the Tribunal erred in concluding that it took the applicant more than a year after the Congress Party came to power, for police to take an interest in him. He stated that the applicant did not claim or give any particular time when his fear “took hold on him” and that his claim to fear harm was caused by what happened to the leadership of his political party and the members of Akali Dal. This submission also must fail. The applicant told the Tribunal at the hearing before it that the Congress Party won the elections in September 2002. There is no evidence before me to dispute any of the account of what occurred at the hearing before the Tribunal. The applicant has, with the benefit of the Counsel, not brought forward any evidence to dispute the information before me in this regard. The relevance of the finding by the Tribunal in this regard, is that the Tribunal found that the applicant, who claimed to be an active campaigner during the election, was not able to accurately give the exact time for the election. It had independent evidence before it, which was not contradicted, that the elections were held in February 2002. The Tribunal in part relied on this difference (between the time the applicant said the election took place and when it did actually take place) to base its decision in relation to the applicant's credibility in that it did not accept that a person with a level of political involvement claimed by the applicant would not know when the party he supported had lost power, particularly as he claimed that personal supporters of Akali Dal were subjected to persecution after the party lost office and the Congress Party became the government. This was clearly open to the Tribunal to find on the material before it. Also, it was open to the Tribunal to reject the applicant's explanation at the hearing before the Tribunal, that it took more than a year after the Congress Party came to power for police to take an interest in him. Mr. Patel's submission now that the applicant did not claim or give any particular time when his fear took hold on him is unsupported by any evidence before me and he has brought nothing before me to contradict the Tribunal's account of what occurred at the hearing before it. On this basis also, this complaint must fail.

1. Mr. Patel's third ground is that the Tribunal erred in its understanding of the term “persecution”. He argued at the hearing before me that it is not necessary that the applicant should have suffered any serious harm in the past. He appeared to submit that the applicant’s fears sprang from what happened to the political leader of Akali Dal and the leadership of the party, and that his real fear was founded on the persecution that he would suffer in the future. What I understood Mr. Patel to be submitting, is that having dealt with the fear of harm in the context of claims of what occurred in the past, the Tribunal did not deal with the situation of what would happen in the future. That in looking at the issue of the persecution, the Tribunal needed to apply its mind to what would have occurred in the future. Mr. Patel submitted that the Tribunal did not go into this issue because it appears to have found that nobody has suffered any persecution in the past. The applicant, he submitted, had a fear that the serious harm would occur to him on return to India.

2. It is clear that the test that the Tribunal must address is the real chance of harm owing to a well founded fear of being persecuted for a Convention reason if the applicant were to return to his country of nationality (see Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379). It is trite to say that there can be no set procedure in assessing whether there is a real chance of persecution. The process will involve making findings of fact based on an assessment of the applicant's claims and possibly relevant country information and speculation as to the reasonably foreseeable future and a finding as to whether there is a real chance that persecution will occur. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Kirby J. at 295 said:

   “The process of determination involves the delegates making findings as to primary facts, identifying the inferences which may properly be drawn from the primary facts, as so found, and then applying those facts and inferences to an assessment of the “real chance” affecting the treatment of the applicant if he or she were to be returned to China.”

   In most instances, determining what is likely to occur in the future will require findings as to what has occurred in the past. This can provide a rational basis from which to assess whether an applicant's fear of being persecuted for a Convention reason is well founded. For example in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574, the High Court looked at the extent to which past events can be a guide to the future. The Court said:

   “Past events are not a certain guide to the future but in many areas of life proof that events that have occurred often provides a reliable basis for determining the probability, high or low, of their recurrence.”

   It is clear that in the case before me the applicant's fear of harm in the future if he were to return to the Punjab State was that he would be persecuted by the new Congress Party government on the same basis that he claims to have feared persecution in the past. In this regard in looking at past events, the Tribunal was entitled to extrapolate its findings in relation to these past events to the likelihood of what would happen in the future. This is particularly so, as the Tribunal found that there was no evidence that any action of retribution against the supporters of the former government was being undertaken by the new Congress Party government in the Punjab. The Tribunal clearly looked at the possibility of the real chance of persecution if the applicant were to return. At CB 90.8 the Tribunal said:

   “As the Tribunal has found that the applicant was not persecuted in the past and does not accept that there is any evidence of Akali Dal supporters being persecuted during the period since the applicant left India, the Tribunal finds that there is not a real chance that if the applicant were return to India now or in the reasonably foreseeable future that he would be persecuted for reason of his political opinion or for any other Convention reason.”

   There is nothing that was put before the Tribunal by the applicant, or that was otherwise before the Tribunal to show that it was not entitled to reach this view. This finding was clearly open to it on what was before it and it gave its reasons. This ground also must fail.

1. Mr. Patel's fourth ground was in relation to the issue of relocation. Mr. Patel's submission in this regard was that the Tribunal concluded that the applicant could relocate elsewhere in India and that there was no evidence that, although the applicant's party was a state-based party, this would have no implication in other states. Mr. Patel argued that in forcing the applicant to relocate that this would be forcing the applicant to forego his political participation, and further that the Tribunal did not consider the question of hardship. Although he made no specific reference I assumed that he was arguing that the Tribunal did not look at the issue and elements of relocation as required by the Full Federal Court decision in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437. However, I accept Mr. Bird's submission that the Tribunal's statement in relation to relocation was not critical to its finding. The Tribunal's conclusion did not rely on a finding of relocation. Clearly the Tribunal found that the applicant had fabricated his claims and that there was no evidence to show that the applicant had suffered the harm or fear of harm, claimed in the past or was likely to suffer any such harm in the reasonably foreseeable future on return to Punjab. The Tribunal's comment in relation to his being able to live in New Delhi or Uttar Pradesh where he had previously resided with his relatives, was clearly made in the context of having already clearly found that there was no well founded fear of persecution for a Convention reason, if the applicant had problems with his business he could move elsewhere, or that there was no evidence that these problems were as a result of his membership with Akali Dal or any imputed political opinion (CB 90.8). The Tribunal clearly found and that there was no fear of harm for persecution for a Convention reason, and while it was clearly not necessary to do so, it went on to say that the Tribunal did not find the applicant's explanation that he could never feel safe in any part of India to be convincing, but this was clearly not the central finding by the Tribunal in regard to the applicant’s application.

2. It is clear that in the case before me, the applicant failed before the Tribunal because the Tribunal formed an adverse view as to the applicant's credibility and could find no evidence to support the applicant's claims that the new Congress Party government in his home state was engaged in a process of harassment and persecution of the members or supporters of the party of the former government in the Punjab. To the extent that any action had been taken against members of the former party in government, the Tribunal clearly found that this was in relation to criminal activity and not for any Convention reason. The Tribunal's findings were all open to it on the material before it. None of the grounds put forward by the applicant's Counsel succeed, and accordingly this application is dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate:  Wagma Aziza

Date:  30 August 2005