SZFES v Minister for Immigration
[2005] FMCA 363
•23 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFES v MINISTER FOR IMMIGRATION | [2005] FMCA 363 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in India – no reviewable error found – application dismissed. |
| Applicant: | SZFES |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG3577 of 2004 |
| Judgment of: | Driver FM |
| Hearing date: | 23 March 2005 |
| Delivered at: | Griffith |
| Delivered on: | 23 March 2005 |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Mr A Markus |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3577 of 2004
| SZFES |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”). The RRT decision was signed on 26 October 2004 and was handed down on 16 November 2004. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Punjab in India. He had made claims of political persecution. I adopt by way of background paragraphs 2-18 of written submissions prepared on behalf of the Minister by Mr Markus:
The applicant is a citizen of India.[1] He arrived in Australia on 24 February 2001.[2] On 9 April 2001 the applicant lodged an application for a Protection (Class XA) visa.[3]
[1] court book, page 13
[2] court book, page 14
[3] court book, pages 1, 37.4
The applicant’s claims were detailed in a statement attached to the protection visa application,[4] and were re-stated in his application for review to the RRT. [5]
[4] court book, pages 18-19
[5] court book, page 47
In summary, the applicant claimed a well-founded fear of persecution in India on the basis of his political opinion (as an active member of a Sikh party, Shiromani Akali Dal (“SAD”)).
In particular, the applicant made the following claims:
·he was in charge of SAD’s human rights wing from 1987 to 1993;
·during this period SAD brought court cases against many Punjabi police officers in relation to the discovery of a racket in which 25,000 “unclaimed” Sikh bodies were cremated by Punjab police; and
·following this the police began to target those who were working on the cases against the Punjab police and tried to implicate the applicant in false cases and threatened to kill him.
After the Minister’s delegate refused the applicant’s application for a protection visa on 26 April 2001, the applicant applied to the RRT to review that decision on 18 May 2001.[6]
[6] court book, page 49.4
On 12 July 2002 the applicant gave oral evidence at a hearing before the first RRT. At that hearing, the applicant made a number of new claims, including that terrorists extorted money from him in about 1993; the police came to know of this and questioned and harassed him on regular basis. The applicant claimed that “they” returned every six months and when he gave them a bribe they would go away. [7]
[7] court book, page 69.2
On 13 August 2002 the RRT handed down a decision made 22 July 2002 affirming the delegate’s decision not to grant a protection visa.[8]
[8] court book, pages 64-79
On 10 September 2002 the applicant lodged in the Adelaide Registry of the High Court of Australia an application for a draft order nisi in relation to the decision of the RRT of 22 July 2002. These proceedings were remitted to the Federal Court of Australia.
On 19 February 2004 Lander J of the Federal Court of Australia by consent[9] made orders quashing the decision of the RRT and remitting the matter to the RRT for further consideration according to law.[10] The matter was remitted because of a misinterpretation of certain words at the hearing on 12 July 2004, and as the interpreting was generally deficient. [11]
On 13 October 2004 the applicant attended a further hearing before the RRT, which was differently constituted for the purpose of reconsideration. [12]
The second RRT decision, which is the subject of the present application, was made on 26 October 2004 and was handed down on 16 November 2004. The RRT affirmed the decision of the delegate not to grant the applicant a protection visa.
The RRT’s decision
The RRT was not satisfied that the applicant had a well-founded fear of persecution within the meaning of the Convention if he returned to India.[13]
The RRT rejected the applicant’s main claims of persecution on two independent bases, either one of which would be sufficient to uphold the RRT’s decision or, to put it the other way around, the applicant would need to demonstrate jurisdictional error in respect of both of these findings to be entitled to relief.
First, although the RRT was prepared to accept that the applicant was a member of SAD, it had “grave doubts” about the credibility of his claims to have been in charge of SAD’s human rights wing from 1987 to 1991 or 1993 and to have been involved in Sikh human rights, particularly, in relation to the court cases against the Punjab police. [14] The RRT went on to find, however, that even if the applicant’s claims in that respect were accepted, it did not accept that the police tried to implicate him in a false case or threaten to eliminate him. The RRT preferred the applicant’s oral evidence, which did not suggest that he was targeted because of his SAD membership or human rights activities. [15]
Secondly, even if the applicant had been targeted by the police in the early 1990s, the RRT was satisfied that the applicant’s fear of persecution from police was no longer well-founded. [16]
Because of the problem with the interpreting, the RRT gave no weight to the oral evidence given by the applicant to the first RRT. Together with the applicant’s oral evidence during the second hearing,[17] the RRT was satisfied that the applicant did not fear harm from terrorists. [18]
The RRT rejected a claim made by the applicant at the hearing[19] that he would have problems if he rejoined SAD because the Congress Party was now in power in Punjab, and was not satisfied that the applicant would have a well-founded fear of persecution if he rejoined SAD. [20]
[9] court book, page 101.3
[10] court book, page 80
[11] court book, page 98.4
[12] court book, page 89
[13] court book, page 102.5
[14] court book, page 101.4
[15] court book, page 101.7
[16] court book, page 102.2
[17] court book, page 99.4
[18] court book, page 101.3
[19] court book, page 99.4
[20] court book, page 102.3
The applicant relies upon his judicial review application filed on 8 December 2004. As Mr Markus notes in paragraph 19 of his written submissions, two grounds of review are identified in that application. The first is that the RRT misunderstood the meaning of the term “persecution” and thus misapplied the law. Particulars are provided. Those particulars are that the RRT erred in finding that the applicant had been the victim of police extortion and that the RRT failed to consider that the police used the applicant’s past human rights activities as the excuse to threaten him and get money from him. The second ground of review is that the RRT decision was unreasonable in the Wednesbury sense in holding that the applicant was not active in human rights after the mid 1990s.
It is clear from the decision and reasons of the RRT, on pages 94-96 of the court book, that the presiding member correctly stated the relevant principles concerning the assessment of a claim to a protection visa. The question is whether the presiding member correctly applied those principles. I am satisfied from my reading of the RRT decision and reasons that the presiding member did not fail to understand and consider any element of the applicant’s claims. The presiding member recited the applicant’s claims in detail on pages 96-99 of the court book. The presiding member clearly understood that the applicant was asserting a well-founded fear of persecution because of his human rights activities as a member of the SAD. It is also clear from what the presiding member says on page 101 of the court book that she had serious doubts about the credibility of the applicant’s claims. She was concerned about the applicant’s inability to provide much detail of his involvement of human rights activities. Nevertheless, the presiding member was not prepared to dismiss the application purely on the basis of an assessment of credibility.
The presiding member went on to consider the applicant’s claims as if they were true. At the bottom of page 101 the presiding member said:
Even if the Applicant was head of the Party’s human rights wing, or more likely, head of the local branch’s human rights wing, and/or involved in the discovery of the 25,000 bodies and/or the identification and investigation of police responsible for those killings, the Tribunal does not accept that as a result, police tried to implicate him in a false case or threatened to eliminate him in a false encounter, as claimed in the protection visa application, or that he was targeted by police officers and had many false and bogus cases registered against him (as claimed in the SAD letter). This is because the Tribunal prefers the Applicant’s oral evidence as it was given directly to the Tribunal under oath, with the assistance of a Punjabi interpreter, and because the Tribunal had the opportunity to explore and clarify the claims directly with the Applicant. That evidence is that he was never arrested or mistreated by police and was (only) threatened with arrest as a means to extort money from him; his evidence, that many others also had money extorted from them by police at the time as the police approached anyone they thought would pay, does not suggest that the Applicant was targeted for his SAD membership or human rights activities.
In other words, the presiding member, while prepared to accept that the applicant had been involved with human rights activities on behalf of the SAD, based her decision upon the applicant’s oral evidence at the second RRT hearing. That oral evidence indicated that the applicant was one of many people subject to police extortion and there was no apparent link to the applicant’s human rights activities. This finding was reasonably open to the RRT on the material before it. As Mr Markus notes in paragraph 22 of his written submissions the RRT did not fail to consider the possibility of a connection between the extortion and the applicant’s human rights activities. The presiding member considered and rejected the assertion for cogent reasons. It follows, and I find, that the first ground of challenge to the RRT’s decision fails.
The second ground of challenge suffers from even greater difficulties. On the current state of the law unreasonableness does not of itself constitute jurisdictional error, although it may point to one. Even if I were wrong and unreasonableness in the Wednesbury sense can constitute jurisdictional error, it is impossible for the applicant to establish in this case that the presiding member acted unreasonably. On page 102 of the court book the presiding member said:
Even if the Applicant was targeted by Police in the early 1990s, the Tribunal is satisfied that the Applicant’s fear of persecution now, from Police is not well founded. This is because the Applicant was not active in human rights after the early 1990s, because he had no problems from Police since say the mid 1990s at the latest, even though he always or mostly, lived at his home, and because of the further passage of time since then.
This finding was also reasonably open to the RRT on the applicant’s own evidence. On his own evidence he had not been subjected to harm for between five to eight years before he came to Australia. In addition, the available country information supported the conclusion that at the time of the second RRT hearing the applicant had nothing to fear from the police. That available country information established that police who had been involved in human rights abuses had been dealt with according to law.
At the second hearing the applicant asserted for the first time that he also had a fear of returning to Punjab following the defeat of the SAD and the election of the Congress Party in February 2002 in Punjab. That claim was also rejected by the presiding member at page 102 of the court book. In his application, the applicant raises no challenge to that finding but for completeness I find no error in it. The available country information showed quite clearly that the violence and instability which had characterised Punjabi politics in the 1980s had subsided during the 1990s and Punjab by 2004 enjoyed relatively stable political life.
There is no jurisdictional error in the decision of the RRT. I will therefore dismiss the application.
On the question of costs, I am satisfied that costs should follow the event. Mr Markus seeks an order for costs in the sum of $4,000. I am satisfied that costs of at least that amount have been properly and reasonably incurred on behalf of the Minister when assessed on a party and party basis. I will order that the applicant pay the Minister’s costs and disbursements of and incidental to the application, which I fix in the sum of $4,000.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 5 April 2005
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