SZEUX v Minister for Immigration
[2005] FMCA 1768
•1 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEUX v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1768 |
| MIGRATION – Refugee – claims to fear persecution based on Convention ground of religion and social group – credibility – apprehended bias – inconsistency in the applicant’s evidence – claim that the Tribunal was “Wednesbury unreasonable” – procedural fairness – failure to comply with s.424A – notwithstanding any failure there was an independent basis for the Tribunal’s decision – relocation – no reviewable error – application dismissed. |
| Migration Act 1958, ss.424A(1), 424A(3)(a), 422B, 424A(2), 91R(1)(b) |
| Minister for Immigration & Multicultural & Indigenous Affairsv Jia [2001] HCA 17 Refugee Review Tribunal, Re; Ex parte H [2001] HCA 28 MZWBW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 94 Abebe v Commonwealth (1999) 197 CLR 510 Re: Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679 WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 266 SZEKY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1138 SZERV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1221 SZBDF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1493 Kioa v West (1985) 159 CLR 550 Tin v Minister for Immigration Multicultural and Indigenous Affairs [2000] FCA 1109 VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 SZDXC vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306 MZWPK vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1256 VCAD vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1 Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 Randhawa v Minister for Immigration, Local government and Ethnic Affairs (1994) 52 FCR 437 NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 Minister for Immigration and Multicultural Affairs v Rajalingam & Ors [1999] FCR 719 |
| Applicant: | SZEUX |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2052 of 2004 |
| Judgment of: | Nicholls FM |
| Hearing date: | 24 November 2005 |
| Date of Last Submission: | 21 November 2005 |
| Delivered at: | Sydney |
| Delivered on: | 1 December 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr. C. Jayawardena |
| Solicitors for the Applicant: | Jayawardena Solicitors |
| Counsel for the Respondent: | Mr. J. Potts |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The Refugee Review Tribunal is joined as the second respondent in these proceedings.
The application is dismissed.
The applicant pay the first respondent’s costs set in the fixed amount of $5500, pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2052 of 2004
| SZEUX |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed in this Court on 5 July 2004 seeking judicial review of the decision of the second respondent, the Refugee Review Tribunal (“the Tribunal”) made on 17 May 2004 and handed down on 8 June 2004 to affirm the decision of a delegate of the first respondent Minister made on 18 November 2003 to refuse a protection visa to the applicant.
The applicant is a national of India who arrived in Australia on
11 October 2003 and made an application for a protection visa on
6 November 2003. His claims before the Tribunal were included in his protection visa application to the first respondent's Department (Court Book (“CB”) 1 to CB 15), in a letter sent to the Tribunal dated
18 December 2003 from the applicant’s then adviser Adrian Joel & Co (CB 52 to CB 54) and in what was said at a hearing before the Tribunal on 11 March 2004. The Tribunal's account of what occurred at the hearing is at CB 73.6 to CB 79.7.The applicant claimed that he was in business in India as a director of a manufacturing company. His claims to protection were based on his involvement with Baba Pyara Singh (Bhiniarawale) (“Baba”) whom he claimed he helped to arrange “satsang” (discourses). He claimed that Baba wrote a book which was a rectified version of the Sikh holy book, and that he helped to distribute this book. Baba and his followers came into conflict with other (mainstream and majority in Punjab) Sikhs. He claimed that in October 2001 he was attacked by some Sikhs and that he was beaten. He claimed that when he reported this to police in the Punjab the police inspector refused to help. He further claimed that the police raided his and Baba’s homes and that on 26 September 2001 they were both arrested, but subsequently released on bail in December 2001. He further claimed that he was afterwards attacked with a knife, received no protection from police and eventually, in March 2003, fled to Delhi where he remained in hiding.
On 2 February 2004 the Tribunal wrote to the applicant (CB 55 to
CB 56) and advised that, on material before it, it was unable to make a decision in his favour and invited the applicant to a hearing before the Tribunal to give oral evidence and present arguments in support of his claims. The applicant subsequently attended a hearing before the Tribunal on 11 March 2004. In its “Findings and Reasons” (CB 79.8 to CB 83.7) the Tribunal stated that it could not be satisfied of the truth of the applicant’s claims, but in any event the applicant could safely relocate away from his home state in Delhi. As such it could not be satisfied that Australia owed protection obligations to the applicant, and as a result affirmed the decision of the delegate of the respondent Minister. This Tribunal’s essential findings were that:1)Despite claiming to be a follower of Baba, at the hearing before the Tribunal, the applicant could not provide “any convincing evidence” about his relationship with this “famous man” or detailed knowledge of the Guru’s teachings (CB 79.8). The Tribunal described the applicant as being uncooperative (CB 79.9) and noted that on a number of occasions that he did not answer the Tribunal’s questions and gave no explanation for this failure (CB 80.1).
2)The applicant had no knowledge of, and had never seen, Baba’s book. This was based on his lack of awareness of the length of the book, the fact that it contained photos, and that a photo was on the front cover, despite his having stated that he had seen the book and distributed information about it (CB 80.5).
3)The applicant’s evidence in relation to Baba’s arrest was in parts contradictory with independent country information available to the Tribunal (CB 80.7).
4)The applicant’s evidence given at the hearing before the Tribunal in relation to his own arrest was inconsistent with what he provided in his “application statement” and further in this regard his evidence was “particularly vague and he failed on a number of occasions to answer the questions asked of him” (CB 81.1).
5)The applicant’s version of events in relation to Baba’s arrest was not supported by material that the Tribunal had reference to, and this included reference to two separate press reports that were described by the Tribunal as having “continuity” in relation to the sequence of events surrounding Baba’s arrest (CB 81.3).
6)The applicant’s evidence as it related to the contact he claimed he had with Baba after Baba’s arrest was “unbelievable as it was vague and uncertain.” The Tribunal was not satisfied that the applicant was telling the truth (CB 81.4).
7)On this basis the Tribunal rejected the claims that the applicant was a follower of Baba, that he had been arrested and detained, or chased out of his factory in January 2002 (CB 81.8). Further that it could not be satisfied of his whereabouts between January 2001 and October 2003 or that he had been harassed by Sikhs during that time (CB 82.2).
8)In relation to the applicant’s membership card signed by Baba, the applicant failed to provide it, and the Tribunal could not be satisfied as to its existence. In any event the Tribunal found that if it was wrong in this regard and the applicant did have such a card, that this was not sufficient to show that the applicant was as closely associated with Baba as claimed given the other findings of the Tribunal (CB 82.7).
9)The Tribunal found that in any event the applicant could easily and reasonably relocate and live in Delhi upon return to India (CB 82.9) and that even in the remote chance that he would be harmed in Delhi, he would be able to report the issue to the police (CB 83.5).
The Tribunal rejected much of the applicant's claims on credibility grounds based to a large extent on what the applicant said or was unable to explain at the hearing before it. It also rejected, based partly on the applicant’s claims and partly on independent country information, that the applicant was a follower of Baba. But in any event found that the applicant could reasonably relocate to another part of India.
In his application to the Court the applicant asserted jurisdictional error on the part of the Tribunal. The application was devoid of any particulars. When the matter first came on before a Registrar of this Court on 6 October 2004, the applicant was represented by a solicitor. On that day orders were made by consent, which amongst others, required the applicant to file and serve an amended application giving complete particulars of each ground of review relied upon by
2 November 2004. The applicant had not complied with this requirement and on 3 June 2005 the respondent sought another order that the applicant file and serve an amended application by 10 June 2005, giving full particulars in support of the grounds of review. The applicant was represented by Mr. Jayawardena on that date. When again there was no compliance by the applicant with this order the respondent brought the matter before me again on 14 June 2005, where a further opportunity was given to the applicant to file an amended application by 4 p.m. on the following day. By way of amended application, drafted with the assistance of Mr. Jayawardena, solicitor, acting on the applicant's behalf, and filed on 15 June 2005, the applicant asserts the following grounds:“1)Jurisdictional error on the part of the Tribunal as a result of the Tribunal drawing conclusions “contrary to facts and all information constructively available” thus “refuting the credibility of the applicant openly and acting biasly [sic]”.
2)Wednesbury unreasonableness on the part of the Tribunal in holding that the applicant was not able to provide certain information”.
3)Procedural unfairness in the Tribunal’s failure to comply with s.424A(1)(a) and (c) of the Act.
4)That the Tribunal was “manifestly unreasonable”.
5)That the Tribunal made further “jurisdictional error” in relation to its findings on relocation.”
At the hearing before me the applicant was represented by solicitor, Mr. Jayawardena who confirmed that the applicant was seeking to rely only on the grounds as set out in the amended application. Mr. Potts appeared for the respondents.
The first ground of complaint made by the applicant is that the Tribunal made jurisdictional error by “making the following conclusion contrary to facts and all the information constructively available on file thus refuting the credibility of the applicant and acting biasly” [sic]. Mr. Jayawardena particularised this complaint by reference to the Tribunal's decision record at CB 80.8:
“The applicant was not able to give a credible version of his arrest or his appearance before the Court of law. He gave different dates for the date of their release between the hearing and the application statement. In the application statement he claimed they were released on 12 December 2001. His evidence at the hearing was that he was detained between 3-6 days.”
Mr. Jayawardena submitted that the Tribunal misunderstood the applicant's evidence, and that what the applicant had stated in his application for a protection visa was that he was arrested on 26 September 2001, and was released on 12 December 2001, and that his reference at the hearing before the Tribunal that he had been released “after three days” was that he had been bailed after three days of detention in the “Court lockup” (to which he had been moved) and not that he had been released “three days” after the initial arrest on
26 September 2001. Mr. Jayawardena complained at the hearing before me that the evidence that the applicant gave to the Tribunal was that he was detained on 26 September 2001. He was then released on
12 December 2001 and this followed a period of 3 days “pending bail release”. Mr. Jayawardena referred me to the Tribunal’s account of the hearing which relevantly is at CB 75.5. Mr. Jayawardena complained that at CB 80 the Tribunal (in its “Findings and Reasons”) said that the applicant had said that he was detained “between 3-6 days.” He submitted that the Tribunal itself made “mistakes” and yet used this to ground an adverse credibility finding against the applicant. He also submitted that the Tribunal’s “exaggeration” of the days of detention was in order to support its adverse credibility finding and that this showed apprehended bias on the part of the Tribunal. There are a number of aspects to this ground of complaint:1)To the extent that there is an assertion that the Tribunal was actually biased, although this was not pursued in submissions, nonetheless as has been often observed, the relevant authorities establish that allegations of bias carry an onus that the claim must be distinctly made out and clearly proved. Actual bias requires evidence of “prejudgement” by the decision maker in the sense that he or she is “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or argument may be presented.” (Minister for Immigration & Multicultural & Indigenous Affairsv Jia [2001] HCA 17, [69], [71]-[72], [127]) The real question is whether the mind of the decision maker is open to persuasion. However, the applicant before me would need to present more that just the conclusion reached by the Tribunal to support this claim. In relation to the apprehension of bias, which was argued by Mr. Jayawardena before me, relevant standards of reasonableness are determined by reference to the apprehension of “a fair-minded lay observer or a properly informed lay person” observing the Tribunal processes. (Refugee Review Tribunal, Re; Ex parte H [2001] HCA 28, [27]-[32]). Beyond the complaint that the Tribunal did not believe him, the applicant has only submitted that the Tribunal “exaggerated” the days of detention from 3 days to 3-6 days to support its adverse credibility finding. This submission is in my view a misrepresentation of what the Tribunal has actually done. In his protection visa application relevantly copied at CB 8.8, the applicant stated in relation to this issue:
“However on 26th September the police encircled us and arrested us. On 12th December 2001 Baba ji along with his followers (including me) were released on bail”
Following his application for review to the Tribunal the applicant's adviser on behalf of the applicant, by the letter dated 18 December 2003 (CB 12), received by the Tribunal on
7 January 2004, referred to the issue of the applicant's arrest in the following way:“The foundation of the application is that the applicant has been a follower BABA PIARA SINGH BHANIAREWALE, that he was arrested on one occasion September 2001 - that he has been subject to arbitrary assault”
The Tribunal's account of the applicant's claimed detention in September 2001 and subsequent Court proceedings, is set out in the Tribunal’s report of what occurred at the hearing it conducted with the applicant and this is reproduced in its decision record at CB 75. What is very clear is that from the Tribunal's account of what the applicant said at the hearing before it, an account which is unchallenged by any other evidence brought by the applicant now, the applicant was not clear in his account of what occurred after he was arrested on 26 September 2001. The elements appear to be that he was taken to a police station, he was then taken to Court of law and then he “got out” on bail. While the Tribunal reports that the applicant replied to its relevant questions that they kept him for three days and then he was taken to Court, the Tribunal's account shows, in the context of the applicant not being responsive to questions put by the Tribunal, that (as the Tribunal reports at CB 75.6):
“The Tribunal asked the applicant if the judge set bail. He replied that bail was taken later on. The applicant seemed very uncertain about the Court and its proceedings”
In relation to the specific complaint that the Tribunal “exaggerated” the “3 days” to between “3-6 days”, it is clear that while the applicant himself made a reference to 3 days he was not clear in many aspects of his claims. In particular however, the following explains the Tribunal's reference subsequently to “3-6” days:
“The Tribunal asked him how long it was before he went to the Court. He replied that they kept them there for 3 days and the colleagues arranged for the bail. He seemed unsure when he went to the Court of Law. He was taken by the police and does not remember the exact day. The Tribunal asked the applicant if it was one or two or three days after his arrest and he replied that it was to 2-3 days after. The Tribunal asked the applicant if he was taken before a magistrate or a judge. He did not answer the question and said that they had been beaten up badly” (CB 75.6).
From the Tribunal’s record the sequence then appears to be that he was taken to the police station, he was taken to the Court 2-3 days after his arrest, that is he spent 2-3 days at the police station, and that he was then kept in detention for another 3 days while bail was being arranged. This account of the relevant sequence of events is supported by the report at CB 75.9 when the applicant was giving his account to the Tribunal of what occurred before the Court:
“The Tribunal asked the applicant if the judge set bail. He replied that bail was taken later on.”
It was certainly open for the Tribunal to have made the statement that his evidence at the hearing was that he was detained between 3-6 days, that is, the 2-3 days initially following his arrest and then another 3 days while bail was being arranged by his friends. But even if the Tribunal had made some error in extending the
3 days to 3-6 days then it is well established that it is not a jurisdictional error to make a wrong finding of the fact: MZWBW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 94 (“MZWBW”) at [28] and Abebe v Commonwealth (1999) 197 CLR 510 (“Abebe”) at [137]. Nor can any such error by itself be said to support a finding of apprehension of bias on the part of the Tribunal. I note in particular that in the circumstances it was certainly open to the Tribunal based on the unclear evidence provided by the applicant to have made the statement that he was detained between 3-6 days, but even beyond that, the important part of the Tribunal’s finding was really that the applicant’s evidence was vague and that he failed on the number of occasions to answer the questions asked of him. Whether the detention was 3 days, or 6 days, or 3-6 days this does not appear to underpin the key finding by the Tribunal as to the applicant’s inability to give a clear account of his arrest and detention. In particular the applicant’s assertion now that “he said 3 days” does not explain the inconsistency with other claims that he had been detained on 26 September 2001 and the earlier claim that he had been released on 12 December 2001. But even on the Tribunal's version of the “6 days” this still does not explain the inconsistency noted by the Tribunal that whatever the period of detention, whether 3-6 days or not, it still did not stretch out to the 12 December date provided earlier by the applicant. I will deal with the issue of the inconsistency noted by the Tribunal and country information on which the Tribunal relied below. But, in relation to the complaint of bias or apprehension of bias there is nothing in the material before me to show either bias or apprehension of bias on the part of the Tribunal.2)I agree with Mr. Potts for the respondent, that it is difficult to understand what the reference in the amended application to “all the information constructively available on the file” means. Nor was Mr. Jayawardena able to assist at the hearing before me. Further, the reference to the Tribunal refuting the credibility of the applicant is a challenge to the merits of the Tribunal's decision, as it is clear that findings on credibility, like other findings of facts, are a matter for the Tribunal: per McHugh J., in Re: Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1. The Court cannot engage in fact finding about the merits of the applicant's case (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259). The necessity is for the applicant is to establish jurisdictional error in the Tribunal's decision and this does not include errors of fact as to the merits of the case put to the Tribunal (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]), and it is not a jurisdictional error to make a wrong finding of fact (MZWBW and Abebe).
3)To the extent that the Tribunal noted an inconsistency between what the applicant provided to the first respondent's Department in his application and what he said at the hearing before the Tribunal, and to the extent that it may be said that the Tribunal relied on information provided to the first respondent's Department which could give rise to a problem flowing from the majority decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 (“SAAP”) and the dicta in the Full Federal Court in Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679, then I take the view that the Tribunal was relying on the inconsistency between the applicant’s two accounts and that this is not information for the purposes of s.424A(1) of the Migration Act 1958 (“the Act”). In this regard I refer to WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 266 (“WAGP”) as followed by SZEKY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] 1138 per Lindgren J., and SZERV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1221 per Dowsett J., at [11] where His Honour said:
“…in SZEKY v The Minister 2005 FCA 1138 at [21] to [24], Lindgren J held that where a decision is based upon inconsistency between an earlier statement and a later statement, it is that inconsistency, and not the statements, upon which the decision is based. That view seems to me, with respect, to be correct.”
The applicant's second ground of complaint in the amended application is that the Tribunal was “Wednesbury Unreasonable” in holding the applicant was not able to provide “certain information” and held against him because of this. The applicant refers to an extract from the Tribunal's reasons at CB 80.5, and takes issue with the Tribunal's finding that the applicant's answers in relation to questions about Baba’s book were not consistent with his claims to have been involved in disseminating information about the book. In relation to the Tribunal's finding that the applicant had never seen the book and had no knowledge of it, Mr. Jayawardena submissions were that essentially the Tribunal should have believed the applicant's claims and that it “was highly unfair to have treated the applicant's basic evidence as unreliable.” The submission was that the applicant had claimed that he had seen the book and the Tribunal should have believed him. He submitted:
“It’s the applicant’s word against the Tribunal’s word.”
I cannot see that this submission can succeed. The Tribunal's findings in relation to Baba’s book were, as Mr. Potts submitted, entirely open to it on the material before it. The Tribunal was entitled to make its finding on the basis that the applicant had not seen Baba’s book when, if for no other reason, he described it as being “250” pages long or “350” pages long when in fact the Tribunal had independent country information before it that it was “2704” pages in length (CB 89.8). The applicant’s response to the Tribunal when confronted with this independent information was to “dissemble”. Mr. Jayawardena before me attempted to explain this by saying that the applicant was making reference to earlier versions of the book which “had been added to.” Clearly the Tribunal’s information, which was put to the applicant, was that the book was reported as being “well over 2000 pages” in 2001 (the relevant time at which the applicant claimed to have been actively involved with Baba). Mr. Jayawardena also submitted that the Tribunal did not provide the book to the applicant nor tell the applicant the “basis of the information”. Mr. Jayawardena expressed it as “authority for its information.” Clearly what the Tribunal relied on was the reported length of the book. In this regard the Tribunal's unchallenged record of what occurred at the hearing clearly shows the Tribunal putting to the applicant that it had independent country information (which in the SAAP context would fall within the exception set out in s.424A(3)(a) of the Act from the requirements as set out in s.424A(1) of the Act) as to the size of the book. In these circumstances it was not necessary for the Tribunal to actually show the applicant a copy of the book. The critical information on which the Tribunal relied was the length of the book. Clearly, this did not require the applicant to actually see the book to understand the Tribunal’s concern that he had provided inconsistent advice as to the length of the book. This is, inconsistent with the independent information available to the Tribunal in regard to this issue. This ground does not succeed.
The applicant's third complaint is that there was a breach of the rules of procedural fairness, and a breach of s.424A(1) of the Act in relation to country information on which the Tribunal relied. The applicant refers to the Tribunal’s decision record at CB 79 .4:
“The Tribunal put to him country information that Baba was only released in April. He said that Baba was arrested on many occasions. He said that in Ambala city he was stabbed. He was being taken to court when someone attacked and he knew that he was Ambala. This claim is supported by the country information.”
The complaint as stated appears to be that the Tribunal did not notify the applicant of the source of the information. In relation to the claim of a breach of the rules of procedural fairness then clearly this is an application to the Tribunal to which s.422B of the Act applies. That section excluded common-law obligations of procedural fairness (SZBDF v Minister for immigration and Multicultural and Indigenous Affairs [2005] FCA 1493 at [11] – [18]). But in any event, I cannot see that there was any breach of any common law rules of procedural fairness. Clearly the extract complained of states that the Tribunal put to the applicant the relevant country information. The obligation on the Tribunal under the general rule under the common law is that an opportunity should be given to an applicant to deal with information that is credible, relevant and significant to the decision to be made (Kioa v West (1985) 159 CLR 550). It is also clear that the substance of the information must be provided to an applicant with an opportunity to comment.
In the case before me the Tribunal's unchallenged record of what occurred at the hearing before it, shows that the substance of the relevant information in relation to Baba was put to the applicant at the hearing before the Tribunal. While there are some circumstances where the source of the information should be put to an applicant, this is not a requirement in each and every case. The critical issue, when a Tribunal provides information to an applicant in this way, is to ensure that the applicant has sufficient information about what the Tribunal considers to be adverse to the applicant, to enable the applicant to respond in a meaningful way. In the case before me the applicant made certain claims about the circumstances surrounding the arrest of Baba. The Tribunal put to the applicant country information available to it that contradicted the applicant’s claims, and specifically pointed to some of those contradictions. It is clear that the applicant was made sufficiently aware of the Tribunal's concerns in relation to what he had said, as it contrasted with independent country information reports available to the Tribunal. Nor did Mr. Jayawardena submit as to how the failure to give the applicant of the source of the information led to the applicant not understanding what the Tribunal's concerns were. In this regard the submission from Mr. Jayawardena, to the extent that it appears to be simply that there was no indication whatsoever that the Tribunal notified the applicant the source of the information, is not made out. At the hearing before me Mr. Jayawardena also submitted, in relation to this claim, that this information supported the applicant's claims and that what the applicant had said was correct. Mr. Jayawardena appeared to argue that the Tribunal “use” the applicant's versions of events which were supported by country information, but that it said that the country information did not support the applicant's versions. The extract complained of above appears at the part of the Tribunal's decision record that deals with what occurred at the hearing the Tribunal conducted with the applicant, and in particular what occurred in relation to the Tribunal putting to the applicant issues flowing from relevant country information that it had before it. Mr. Jayawardena did not actually point to any part of the Tribunal's “Findings and Reasons” where it could be said that the Tribunal “used” this country information in a way that was not available to it, or open to it. In its “Findings and Reasons” the Tribunal, on the issue of Baba’s release, had before it the information provided by the applicant himself, which was not consistent with other independent country information which the Tribunal had available to it. The Tribunal made findings against the applicant based on the applicant's inability to provide relevant detail in relation to the release of Baba. The Tribunal found the applicant’s evidence in relation to his own release and the release of Baba as “particularly vague and he failed on a number of occasions to answer the questions asked of him.” (CB 81.1). Further the Tribunal stated at CB 81.5 that another reason for not accepting the applicant's account of the release of Baba was the particularly “poor quality” of his evidence. The Tribunal described the applicant’s evidence as “unbelievable” and “vague and uncertain” and was not satisfied that the applicant was telling the truth, or that the applicant was released on any of the dates that the applicant had mentioned. On what was before it, it was open to the Tribunal to come to this conclusion. While there may have been some country information, for example the newspaper report provided by the applicant to the first respondent's Department referred to by the Tribunal at CB 80.6, with which the applicant’s version of events may have been consistent, this was a newspaper article which was not relied on by the Tribunal as it preferred other country information from two other newspaper sources. Independently, the Tribunal explains and gives reasons for this preference (CB 81.3) and reliance on this information. This aspect of Mr. Jayawardena’s complaint is not made out.
However, Mr. Jayawardena is on much stronger ground in his complaint, on behalf of the applicant, made in the amended application, that the Tribunal did not comply with the requirements of s.424A of the Act. However, Mr. Jayawardena’s complaint on this point appears to be that the Tribunal did not inform the applicant that he was an “unreliable” and “untrustworthy applicant”, and that this was information, or a “finding” that the Tribunal relied on, and therefore it should have been put to the applicant in the manner required by s.424A(2) of the Act. Clearly adverse findings by the Tribunal are not information for the purposes of s.424A(1). I note the case of Tin v Minister for Immigration Multicultural and Indigenous Affairs [2000] FCA 1109 Sackville, J said:
“It follows that a subjective determination by the Tribunal that the applicant's account is or may not be credible does not enliven the obligation imposed by s.424A(1). Thus, even if the Tribunal had not alerted the applicant to the possibility that her evidence might not be accepted at face value, its failure to do so would not have contravened s.424A(1).”
However what is clear, as Mr. Potts for the respondents conceded, is that in reaching its findings rejecting the applicant's claims on credibility the Tribunal in turn, did rely upon independent information about Baba. This information is information to which clearly s.424A(1) applies, and the exception in s.424A(3)(a) does not apply, as the information was specifically about Baba, that is, specifically about “another person.” The effect of the majority decision in SAAP therefore requires the Tribunal to have put this to the applicant in writing. Mr. Potts submitted however, that despite this failure in relation to ss.424A(1) and (2) of the Act, that the Tribunal also made a separate finding which, in his submission, was unimpeachable. This was that the applicant could safely and reasonably relocate to another part of India. Mr. Potts referred me to the relevant principle as stated in VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [33] per North J:
“As referred to earlier in these reasons, there were four independent bases for the decision of the Tribunal in this application. There was no challenge to the second basis of the Tribunal’s decision and I have rejected the challenges to two of the other bases. SAAP does not stand for the proposition that if there be a breach of s 424A in relation to one ground upon which a decision is made, and there exists one or more other grounds upon which the decision is not or cannot be impeached, the decision nonetheless falls. SAAP was itself a case in which the only ground relied upon was a ground on which jurisdictional error was established. There was therefore no other basis upon which the decision in that case could be upheld. In the present case there are three other bases upon which the decision may be supported.”
This was followed and applied by Hely J., in SZDXC vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306 [12] and [17] and Heery J., in MZWPK vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1256 at [13] and cited with approval by one member of a Full Court in VCAD vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1 at [22]. The critical issue therefore, given that the Tribunal breached the requirement of s.424A (as understood in the context of SAAP) in relation to one ground upon which the decision was made, is whether there is one or more other grounds on which the decision was based, which cannot, or are not impeached. That is, was there another separate basis, or bases, upon which the decision may be supported. Adequate state protection (the subject of the fourth ground of complaint) or relocation (the subject of the fifth ground of complaint) are possibilities in this regard.
The applicant's fourth ground of complaint is that it was “manifestly unreasonable” of the Tribunal to find at CB 83.5 that:
“Even in the remote chance that he was to be harmed in Delhi, he would be able to report the issue to police. The issue of Baba Bahniarawala is only a politically sensitive issue in the Punjab because that state has 63% Sikh population. He would have state protection in Delhi with its predominant Hindu population of 84%.”
I cannot accept Mr. Jayawardena’s submission that the Tribunal “overlooked” that there was a real chance of the applicant’s life being in danger in Delhi because of the “act of sacrilege” or “the crime” that he committed in relation to the burning of the Sikh holy book. Section 91R(1)(b) of the Act, which qualifies the Convention definition of persecution, provides that persecution must involve serious harm to the person. The relevant test of persecution, of course, is that a well founded fear of persecution pursuant to the Convention definition is that the fear of being persecuted is well founded if there is a real chance of being persecuted (Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (“Chan”) at 389 per Mason CJ. at 406-7 per Toohey J, at 396-8 per Dawson J. and at 428-9 per McHugh J). As Mason CJ. in Chan said at 389, the expression of a real chance:
“[C]learly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring…”
Clearly in this context the Tribunal, in making the statement complained of, was not making a finding that there was a real chance that the applicant would have a well founded fear of persecution in Delhi. The reference was that even in a situation of a remote chance, (not a real chance) that he was to be harmed, he would be able to report the issue to the police. As Mr. Potts, in my view rightly submits, the finding that the applicant would be able to report the issue to police was open to the Tribunal on the information that it had before it, and to which it referred. The applicant’s complaint as put does not succeed. But on the other hand, nor does this particular finding in my view amount to a proper or adequate analysis of the relevant issue of whether India can provide a reasonable level of protection, (not a perfect one), to the applicant as required by way the Refugees Convention (Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 at [26] and [117]. In the relevant context of administrative decision making, there is no presumption of state protection in Australian law. Conversely, there is some authority for the broad proposition that the applicant should bear some burden in establishing that protection is lacking. In Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 (“Khawar”) Kirby J., made reference to a Canadian case in support of the proposition that as a practical matter in most cases, except those involving a complete breakdown of the agencies of the state, decision makers are entitled to assume unless the contrary is proved, that the state is capable within its jurisdiction of protecting the applicant. But whatever the exact state of the authorities, it cannot be said, even on a most beneficial reading of the Tribunal's decision record, that the Tribunal turned its mind to adequately examine the issue of state protection to the extent that it can be said that there is a separate ground on which the Tribunal's ultimate decision can be said to be based. What the Tribunal has done at CB 83.5 can at best can be characterised as an additional thought (perhaps an “afterthought”) that in the remote circumstances that the applicant were to be harmed in Delhi, that he would be able to report the issue to police. While it may be inferred from what follows that the police in Delhi could be expected to a respond positively to any complaint, as compared with the police response in the Punjab, the Tribunal's comment here cannot be said to constitute an appropriate examination of the issue of state protection and while I can see no error in what the Tribunal has done in making this particular finding, I cannot accept that it constitutes an adequate examination such that it can be said to be a separate and independent basis upon which the Tribunal's decision could be supported.
The applicant’s fifth complaint is that the Tribunal finding in relation to the applicant being able to relocate to Delhi, was “against the principles for relocation” as enunciated in Randhawa v Minister for Immigration, Local government and Ethnic Affairs (1994) 52 FCR 437 (“Randhawa”). At the hearing before me Mr. Jayawardena appeared to take issue with some of the findings made by the Tribunal when considering the issue of relocation. He said that the Tribunal could not say, as it asserted at CB 82.9, that the applicant still has “financial resources” from his family company. Mr. Jayawardena appeared to seek to introduce new information or evidence from the bar table. That is, information that does not appear to have been before the Tribunal, in submitting that the applicant was the “King pin” of his family company and that when he left to go into hiding in Delhi the financial standing of the company fell and that therefore there were no financial resources available to him. From the material before me, and importantly on what was before the Tribunal, the Tribunal's decision record reveals that the issue of the applicant's employment was discussed with the applicant at the hearing that it conducted with the applicant on 11 March 2004. At CB 73.7 the Tribunal stated that it had asked the applicant a range of questions concerning his general background and that the applicant stated that his family owned a factory called “Unique Katha Factory.” He provided details of the income derived from the running of this family company. The applicant claimed to be a director of this company and that he continued in that capacity. There is nothing along the lines as suggested now by Mr. Jayawardena that this was in practical terms a sole operation, and that the company suffered financially when the applicant left for Delhi. Clearly on what was before it, essentially on what the applicant himself had put to the Tribunal, the Tribunal’s note that he still had financial resources from his family's company (CB 82.9) was open to it on what the applicant himself had said to the Tribunal. Other than for one other issue with which I will deal with below, Mr. Jayawardena’s submissions on this point essentially took issue with the Tribunal's finding on relocation on the basis that the Tribunal did not accept the applicant's claim that he would be at risk from Sikh extremists in Delhi. This complaint in the circumstances of what is before me cannot succeed. The Tribunal clearly focused on this issue and made the findings which on the material before it were open to it. The Tribunal found at CB 83.2 that there was no real chance that he would be identified as a follower of Baba by Sikh extremists if he lived in Delhi. The applicant's own claims, as noted by the Tribunal, were that he lived there prior to his leaving India and that he had experienced no problems since January 2002.
The Full Federal Court in Randhawa laid down the reasonable test in relation to an assessment as to whether relocation must be reasonable in all the circumstances. It is clear that what is reasonable will depend on the circumstances in each individual case. The Court in Randhawa did not attempt to determine what would be reasonable in all cases, but financial, logistical barriers and the genuineness of domestic protection were identified as relevant considerations. In the case before me the Tribunal found that the applicant could easily and reasonably live in Delhi upon his return to India. It noted that the applicant was well educated and spoke Hindi and English and that he had financial resources. The Tribunal specifically looked at the issue of whether he would be identified as a follower of Baba in Delhi by Sikh extremists, and found that that there was no real chance that he would be so identified. It also noted the applicant's own claims that he had lived there prior to leaving India and experienced no problem. The Tribunal rejected the applicant's claims that he was in hiding, and noted that he did not wear a turban, was not identifiable as a Sikh and even on his own evidence had had no problems from January 2002 until he left India in October 2003. It found the chances of an extremist finding him, identifying his association with Baba and being motivated to harm him as being remote. The Tribunal also found that Delhi was a massive city with a population of over 13 million within which it would be difficult in any event for the applicant to be found by any extremists from the Punjab. Mr. Potts for the respondents also referred me to the recent Full Federal Court decision of NAIZ v Minister for Immigration and multicultural and Indigenous Affairs [2005] FCAFC 37 at [22] (“NAIZ”) per Branson J., who confirmed that the test as set out in Randhawa was that the Tribunal was required to give consideration to how, in a practical sense, an applicant could reasonably be expected to relocate within the home country. Mr. Potts submitted that the requirement on the Tribunal in the case before me was that it needed to consider in light of all of the applicant’s circumstances on a practical level whether it was reasonable for him to relocate within India. The submission was that the Tribunal did that, and that its analysis appears at CB 82.9 to CB 83 .4. The Tribunal's finding that he could safely and reasonably relocate to Delhi was open to it on the material before it and I accept Mr. Potts’s submission that it did not, in any relevant sense, fail to apply the Randhawa test that Branson J., confirmed in NAIZ, and that there is no jurisdictional error in relation to the relocation finding.
I should also note that during the hearing before me Mr. Potts also conceded that the Tribunal's reference at CB 83.5 to the issue of Baba being only a “politically sensitive” issue in the Punjab might have come from information which could be said to be specifically about Baba and therefore might have fallen outside the exception in s.424A(3)(a) of the Act from the requirement for this information to be put to the applicant pursuant to s.424A(1) of the Act in writing. He conceded that if this were an integral part, or formed part of the relocation finding, then the relocation finding could also be impeached on the s.424A grounds in the same way as the other part of the Tribunal's decision. Mr. Potts invited me to see that that part of the Tribunal’s finding, beginning at CB 83.5, involving the reference to Baba was in effect an “afterthought” and was not an integral part of the relocation finding. I have already found that this part of the Tribunal's decision record is not a stand-alone state protection finding because it cannot be seen to be comprehensive in its analysis of that issue. The critical issue now however is, as guided by the Full Court in WAGP, whether that finding (involving the reference to Baba) affects the finding on relocation. The critical issue is as to whether the relocation finding could have been made, had the state protection reference not been raised. Mr. Potts’s submission, which I accept, is that the relocation issue does stand alone and is not affected by the subsequent comments relating to protection. The Tribunal clearly looked at the applicant's education, and his language capacity, and his financial resources, information which from the Tribunal's account of what occurred at the hearing that it conducted with the applicant, was discussed with the applicant. Further, the Tribunal found that he would not face difficulties or serious harm from anyone even if he were to be identified as a follower of Baba in Delhi by Sikh extremists. But it clearly also found that in the circumstances before it there would be no real chance that he would be so identified, and in particular noted that his own claims were that he had lived there prior to his leaving India and had experienced no problems. Further, that he had not been identifiable as a Sikh on his own evidence. The Tribunal found that the chances of an extremist finding him in Delhi, which is a massive city with the population over 13 million, and identifying his association with Baba and being motivated to harm him were remote. That finding, at CB 83.4, is clearly determinative of the Tribunal's analysis of the issue of relocation. What follows, beginning with the words at CB 83.5 “even in the remote chance”, contemplates an alternative situation that is clearly somewhat less than the necessary real chance of persecution, and as stated, is a remote chance. Clearly, what follows does not go to the critical question of a real chance of persecution if the applicant were to relocate to Delhi.
Further, it could be said that at least on a beneficial reading of the Tribunal's decision record, that the Tribunal's reference to the issue of Baba is a shorthand way of identifying the applicant's claims and fears as an alleged follower of Baba and that the import of what the Tribunal is really attempting to say is that police protection would be available to the applicant in Delhi in circumstances where it may not be available in the Punjab because of the different population mix in both places. The information before the Tribunal was that Punjab has a Sikh population making up 63% of the population, whereas Delhi has a predominant 84% Hindu population and that someone in that context, fearing harm from Sikh extremists in relation to issues of importance to Sikh extremists while they may not be able to rely on local authorities in Punjab to assist them, could rely on local authorities in Delhi to provide such assistance. On this beneficial reading, the Tribunal therefore was not really relying on information about Baba but was a relying on comparative population statistics as a guide to local authority attitudes to providing protection to someone in the claimed circumstances of the applicant. But what is clear is that the aspects of state protection referred to by the Tribunal, whether as an “afterthought” as submitted by Mr. Potts, or some limited attempt to address the issue of state protection, do not impinge on the earlier finding that the applicant could reasonably and safely relocate to Delhi.
At the hearing before me Mr. Jayawardena also questioned why the Tribunal, in circumstances where it had made a finding that the applicant's claims, in relation his activities as an active supporter of Baba, lacked credibility, and rejected all of the applicant's claims to fear harm, that the Tribunal would then go on to consider the issue of relocation. As I understood Mr. Jayawardena’s submission, it was that having made these findings and rejected the applicant's claims, it was not necessary for the Tribunal to go on and consider the issue of relocation and therefore the respondents should not be able to rely on the separate and independent finding in relation to relocation to support the Tribunal's decision in circumstances where there was error in relation to its earlier findings.
The assessment of whether an applicant has a well founded fear of being persecuted for one of the Convention reasons, clearly involves questions of degree to be assessed by a Tribunal. The Tribunal is required to weigh the material before it and make findings before it considers whether or not an applicant's fear of persecution on a Convention ground is well founded (Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559). Clearly, if the finding is not made with sufficient confidence the Tribunal may need to consider the possibility that the finding is incorrect when determining whether an applicant has a well founded fear (Minister for Immigration and Multicultural Affairs v Rajalingam& Ors [1999] FCR 719). The “what if I am wrong?” approach to the real chance test was dealt with in a number of judgements of the High Court, see Wu Shang Liang (1996) 185 CLR 259 per Kirby J. at 293. See also Guo and Abebe. In the case before me the Tribunal made clear findings in relation to the credibility of some of the applicant claims. In one respect the Tribunal found that it could possibly not make a finding with sufficient confidence. This was in relation to whether the applicant was correct in his claim to have a membership card signed by Baba. The Tribunal noted at CB 82.6 that while the applicant had claimed to have such a card, he had not provided this card, and had six months since arriving in Australia to obtain it. But that in a situation where the Tribunal had no information that Baba’s followers used such a card, that even if the Tribunal is wrong and the applicant is a disciple of Baba, and has a membership card, this would still not establish that the applicant was closely associated with Baba as he had claimed given all the other evidence before the Tribunal in relation to his not having seen Baba's book and in relation to the issues arising out of the arrest and in relation to the unreliable account of the various incidents of harm which the applicant claimed. It appears that the Tribunal did satisfy its doubts in relation to the issue of the membership card in that it looked at whether it was wrong and that in fact the applicant was a disciple of Baba and did have a membership card. The Tribunal still found that he was not as closely associated with Baba as claimed and that in this circumstance it still would not be sufficient to satisfy the Tribunal that the applicant was owed protection obligations by Australia. Whether doubts in the Tribunal's mind continued or not beyond this point, it is clearly not wrong of the Tribunal to have considered the issue of relocation as an alternative. It may have been as Mr. Potts submits, that the Tribunal was acting out of an abundance of caution, but whatever the reason while it is not obliged to go on and look at the issue of relocation if it was satisfied as to any lingering doubts, it clearly may choose to do so and it is not an error for the Tribunal to have done so.
While clearly the Tribunal did not provide information to the applicant in the manner that it was required to do, that is information pursuant to s.424A(1) of the Act in the manner that was required pursuant to s.424A(2) of the Act as set out by the majority of the High Court in SAAP, I follow four judges of the Federal Court, and find that notwithstanding the error made by the Tribunal in relation to the failure to provide to the applicant the information about Baba that according to SAAP should have been provided in writing to the applicant, nonetheless there is one other clear basis upon which the Tribunal's decision could be supported and that is that the applicant could safely and reasonably be said to relocate away from the Punjab and live safely in Delhi. The Tribunal's decision can clearly be upheld on this basis and for this reason the application is dismissed.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: Sybilla Waring-Lambert
Date: 1 December 2005
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