SZJGP v Minister for Immigration

Case •

[2007] FMCA 2101

•

21 December 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJGP & ORS v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 2101
MIGRATION – Review of Refugee Review Tribunal decision – no failure to comply with s.424A – Tribunal obliged to address claims – Tribunal addressed claims as expressly put – Tribunal addressed question of relocation in circumstances where applicant did not have a well-founded fear of persecution – no jurisdictional error – application dismissed.
Migration Act 1958, ss.424A, 91R, Part 8B
SZEEU v Minister for Immigration and Multicultural Affairs [2006] FCAFC 2
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26
NABE v Minister for Immigration and Multicultural Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265; [2003] FCAFC 120
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437
SZATVv Minister for Immigration and Citizenship  (2007) 237 ALR 634; [2007] HCA 40
NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37
Applicants: SZJGP, SZJGQ & SZJGR
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 2386 of 2006
Judgment of: Nicholls FM
Hearing date: 29 November 2007
Date of Last Submission: 29 November 2007
Delivered at: Sydney
Delivered on: 21 December 2007

REPRESENTATION

Counsel for the Applicants: Mr A Kumar
Solicitors for the Applicant: Nil
Counsel for the Respondents: Mr J Mitchell
Solicitors for the Respondents: Blake Dawson Waldron

ORDERS

  1. The reference to the first respondent be amended to read “Minister for Immigration and Citizenship”.

  2. The application filed on 28 August 2006, and amended on 29 January 2007, is dismissed.

  3. The applicants pay the first respondent’s costs set in the amount of $6,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2386 of 2006

SZJGP & ORS

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application made under the Migration Act 1958 (Cth) (“the Act”) on 28 August 2006, and amended on 29 January 2007, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 31 July 2006, and handed down on 10 August 2006, which affirmed the decision of the delegate of the respondent Minister to refuse protection visas to the applicants.

Background

  1. The Minister has filed a bundle of relevant documents in this matter (Court Book (“CB”)) from which the following can be discerned.  The applicants, husband (“the applicant”), wife and daughter, are all citizens of India who arrived in Australia on 4 January 2006 and sought protection visas on 27 January 2006 (reproduced at CB 1 to CB 45, with attachments). When this application was refused, the applicants sought review by the Tribunal (CB 68 to CB 71).  

  2. The applicants appeared before the Tribunal on 5 July 2006, and the Tribunal’s account of what occurred at the hearing is set out in its decision record at CB 107.6 to CB 112.4. Only the applicant husband made specific claims under the Refugees Convention. The applicant wife and daughter relied on their membership of his family.

  3. Following the hearing on 13 July 2006, the applicant’s agent submitted further submissions in support of the claims (CB 94 to CB 95), and the Tribunal invited the applicant to comment on certain information by way of its letter of 14 July 2006 (CB 96 to CB 97 – “the s.424A letter”). No response appears to have been made by the applicants.

Applicant’s claims to protection

  1. In all, the applicant’s claims to have a well-founded fear of persecution were said to be for reason of his low caste and his religion as a person of the Nirankari faith. The applicant claims to have left India in 1984 because of violence against Nirankari people by Sikh extremists. The applicant claimed that he had been born into a low caste family. Having moved to the Philippines, he and his family stayed there from April 1984 to January 2006 where he claimed they had been subjected to harm by Muslim extremists. He claimed to fear a return to India as he feared to be subjected to harassment and humiliation by people of upper caste and Sikh faith. The applicant also claimed that the authorities in India were unable to provide protection to people of low caste. 

The Tribunal

  1. The Tribunal accepted that the applicant may belong to a low or backward caste in India, but it did not accept that he was denied the right to earn a living and found that within the meaning of s.91R(1) that any ill-treatment that he had suffered did not constitute persecution. The Tribunal ultimately found that he did not face a real chance of treatment amounting to persecution if he were to return to India for reason of his low caste (CB 115.9).

  2. The Tribunal also accepted that the applicant may have changed his religion because of his caste but because of the “lack of details provided by the applicant”, it was not satisfied that the applicant had come to the adverse attention of the authorities as he claimed because he was part of the Nirankari Mission (CB 116.5). It also did not accept that the applicant had been arrested in 1984 because of his religion (CB 116.6), nor that arrest warrants were issued and were outstanding as he had claimed (see CB 117). The Tribunal found that he had not suffered serious harm before leaving India, and found that if he were to return to the Punjab he would be able to practise his Nirankari faith without any problems, including harm which could amount to persecution (CB 117 .8).  

  3. It further found that his willingness to return to India on a number of occasions between 1984 and 2006 was inconsistent with his claimed persecution either because of his religion or his caste (CB 117.9). The Tribunal also found that it would in any event be reasonable for the applicant to relocate to Delhi (CB 118.3). In all, the Tribunal found the applicant did not face a real chance of persecution for a Convention reason in India, and that he was able to return there. It did not consider his claims made in relation to the Philippines given that finding (CB 118.5). It therefore affirmed the decision under review.

Hearing before the Court

  1. At the hearing before the Court, Mr A Kumar of Counsel appeared for the applicants, and Mr J Mitchell of Counsel appeared for the first respondent. 

  2. Grounds one and four in the amended application were abandoned, as was ground five. Grounds three and six were pressed as stated, ground two however required some further amendment and leave was granted to the applicant to do so during the course of the hearing. 

Ground Two in the Amended Application – Breach of s.424A

  1. After some consideration, Mr Kumar amended ground two in the application to read that the Tribunal had breached the requirements of s.424A. After some consideration the particulars were said to be as stated in paragraph 10 of the applicant’s written submissions filed in this matter on 14 November 2007. Paragraph 10 is in the following terms:

    “The RRT clearly used the (‘passenger movement’ information (at CB 46-52) to assess the applicant’s credibility and opining that the applicant has made previous trip and has become part of the reason for the decision and is breach of section 424A. The Applicants is contends that such a finding has becoming reason or part of the reason as to why the Tribunal has declined relief. The information is not excluded by section 424A(3).”

    (Errors in Original)

  2. Mr Kumar’s submission was that certain passenger movement information was before the Minister’s delegate (reproduced at CB 46 to CB 52), and that the Tribunal used this information to adversely conclude that the applicants had travelled in and out of India and that this was a part of the reason for the Tribunal’s decision and as it was not information that came within the exceptions contained in s.424A(3), the Tribunal had an obligation (with reference to SZEEU v Minister for Immigration and Multicultural Affairs [2006] FCAFC 2 (“SZEEU”)) to provide this information in writing to the applicants pursuant to s.424A(1) and invite their comments.

  3. Mr Kumar referred the Court to what is set out in the Tribunal’s decision record as reproduced at CB 117.6 to CB 118.3 and in particular relied on:

    “The Tribunal notes the applicant spent time in Delhi prior to his departure from India in 1984 and during his visits to India from the Philippines in 1996, 2001 and 2004.  The Tribunal finds that if the applicant continued to have a subjective fear in relation to the Punjab, it would be reasonable for him to relocate to Delhi.”

  4. The submission in short, therefore, was that in this part of the Tribunal’s decision it relied on the passenger movement information as set out at CB 46 to CB 52, and did not put this information to the applicant pursuant to s.424A and, what appeared to be an additional complaint not pleaded in the amended application (nor in the further amendments granted with leave of the Court during the course of the hearing), that the Tribunal did not consider this evidence fully with the applicant when the applicant appeared before the Tribunal. I saw this probably as being a reference to paragraph 21 of the submissions where the submissions (without reference to any particular relevant ground) assert a breach of s.425.

  5. Even the most cursory of examinations of the material reproduced at CB 46 to CB 52 would very quickly reveal that the travel movement details reproduced there have absolutely nothing to do with travel into or out of India, even if the applicant were to rely on what was said in SZEEU as relevant to s.424A(1) and to ignore completely what was subsequently said by the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 (“SZBYR”) at [17] as to what constitutes “information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review”.

  6. This is so for the simple reason that the movement details recorded at CB 46 to CB 52 do not relate to any movement of the applicant in and out of India in 1996, 2001 or 2004, but obviously and plainly relate to the applicant’s entry into Australia in 2006. That part of the decision record to which Mr Kumar took the Court, plainly does not rely on the information reproduced at those pages of the Court Book. Clearly, in applying what the High Court said in SZBYR at [17] (a case which curiously did not appear in either written or oral submissions made by Mr Kumar), did not form a part of the reason for the Tribunal’s decision. Nor do they contain in their terms a rejection, denial or undermining of the applicants’ claims to be persons to whom Australia owed protection obligations (see SZBYR at [17]). This ground, as ultimately presented to the Court, clearly does not succeed.

Ground Three in the Amended Application – Failure to consider membership of social group

  1. Ground three in the amended application is in the following terms:

    “The Tribunal’s decision involved jurisdictional error affecting the decision which is subject to this application in that it failed to consider the Applicants who have converted from other religions as Nirankaris and the effective State protection in India in respect of Nirankari wealthy business persons in the Applicants’ social class and in particular persons who had changed their religion. The Applicants changed their religion (at CB 105.6).

    Particulars

    The Applicants submit that this class issue clearly arises and has been considered in relation to Philippines but not in relation to India misdirected its enquiry.  The Tribunal has failed to the effective State protection in relation to this social class as required under the Convention.

    The Tribunal has failed to consider the impact of the Applicants’ conversion submit that this class issue clearly arises and has been considered in relation to Philippines but not in relation to India misdirected its enquiry.  The Tribunal has failed to the effective State protection in relation to this social class as required under the Convention.  Instead the Tribunal looked at the Nirankaris in general.”

    (Errors in Original)

  2. I understood from Mr Kumar at the hearing that the complaint is that in looking at the applicant’s circumstances the Tribunal failed to consider that the applicant was a member of a particular social group, that is, persons who have converted to Nirankari, and that effective state protection was not available to persons in this group. Mr Kumar submitted that while the Tribunal accepted that the applicant was a Nirankari the Tribunal should have dealt with the issue of whether those who had changed their religion to Nirankari constituted a particular social group, and whether state protection was available to such persons in this group in India.

  3. Mr Kumar in written submissions (paragraph 28) reproduced paragraphs [57], [58] and [59] from the Full Federal Court judgment in NABE v Minister for Immigration and Multicultural Affairs (No 2) [2004] FCAFC 263 ((2004) 144 FCR 1) (“NABE (No 2)”). In the context of his complaint I understood him to rely also, with reference to the relevant authorities contained in that part of the Court’s judgment, on the proposition that the Tribunal is required to deal with a claim which arises from the materials before it.

  4. In support of the proposition that the applicant had changed his religion, Mr Kumar referred the Court to the Tribunal’s setting out of the applicant’s claims and evidence, and in particular at CB 105.6 (“the applicant claimed he changed his religion and became Nirankari …”). While Mr Kumar did not take the Court specifically to anything further in this regard, I also note that what the Tribunal set out reflected what the applicant had put in his application for a protection visa at CB 8.7 (“I changed my religion and became Nirankari”).

  5. Mr Mitchell’s submission in response was that the Tribunal is not obliged to consider a claim that was never made. He relied on what was said by Cooper J in SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265; [2003] FCAFC 120 (“SDAQ”) at [19], which was endorsed by another Full Court in NABE (No 2) (at [58]). What is relied on is that: “a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal” (NABE (No 2) at [58]).

  6. In short Mr Mitchell, with respect, encapsulated what Cooper J said in SDAQ that the evidence before the Tribunal has to be capable of satisfying each of the four elements of the definition of “refugee”, as for example outlined in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (see SDAQ at [10]-[27]).

  7. Mr Mitchell’s submission was that there was no evidence of any past harm or any fear or any evidence in this matter that would support a conclusion that the applicants were in the past persecuted for reasons of their membership of that particular social group which Mr Kumar now seeks to identify, and that there is no evidence of the likelihood of such persecution in future in these circumstances. No unarticulated claim arises for the Tribunal’s consideration. In short, the submission was that there was no evidence that the applicants had been persecuted or harmed or would be persecuted or harmed because they were converts to the Nirankari faith, as opposed to members of the Nirankari faith. 

  8. With reference to relevant authorities, the Tribunal cannot disregard a claim “which arises clearly from the materials before it” (NABE (No 2) at [59]). In the circumstances of the case before me now, I cannot see that there was any claim expressly advanced that the applicants had or would in the future attract harm because they were converts to the Nirankari faith. Nor can I see that such a claim can be said to arise, let alone clearly arise, from the material before the Tribunal.

  9. The applicant certainly stated that he had changed his religion to become a Nirankari. But any plain reading of his claims as set out in the application for a protection visa reveals that this is nothing more than a factual statement, and that the claims relate to his being a Nirankari not a convert to Nirankari, but as a Nirankari indistinguishable from others who were born to that faith he feared harm from extremists and others in the Punjab. There is nothing in those claims to suggest that the fear that he claimed to have, and the harm that he feared, was other than for reasons of his low caste and Nirankari faith. It was in this context that he claimed that the Indian authorities could not provide protection to him (but even this appears in the protection visa application to be primarily, if not exclusively, directed to his claim to be of low caste) (see in particular CB 11).

  10. Nor does any such claim arise from the circumstances put forward on the applicant’s behalf by his then migration adviser (see submissions at CB 94 to CB 95 sent to the Tribunal dated 13 July 2006). Any plain reading of what occurred at the hearing with the Tribunal shows that the applicant left India in 1984 because of the violence against people of the Nirankari faith by Sikh extremists (CB 105.6), and that as a person born into a “low caste family” he had suffered harm because of his caste (CB 105.6).  

  11. While the applicant plainly said that he had changed his religion and become a Nirankari, there is nothing that can be said to arise, let alone clearly arise from just this statement, even when viewed in the totality of the applicant’s claims, to show that the applicant ever claimed (nor that it could be inferred) that he feared harm or had suffered harm, or feared harm in the future, because he was a convert to Nirankari as opposed to a member of Nirankari. In the Tribunal’s account of the hearing (CB 107) the applicant’s claims were that he “adopted a sect called Nirankari because he belonged to a low caste”, but that is that it was the “riots between Sikhs and Nirankari” which ultimately led to his leaving India in 1984. The applicant confirmed that he left India (see CB 108.10), because he was of low caste and had been “teased” by people “saying he was low caste”, and that following his change of religion to Nirankari, problems arose between Sikhs and Nirankaris (CB 109.1).

  12. The Tribunal dealt with the applicant’s claims as expressly put by the applicant, and while it accepted that he may have changed his religion because of his caste and that he was a member of the Nirankari from 1978 (CB 117.6), it did not accept that he experienced any problems which could be “characterised as serious harm up until he departed” India in April 1984. The Tribunal further considered the three occasions that the applicant returned to India from the Philippines and found that he was not subjected to any harm “at all because of his religion” during these visits. The Tribunal stated that it had been “unable to find any recent reports that Nirankari’s (sic) are unable to practise their faith or are mistreated in India”. The Tribunal further found that “the applicant’s willingness to return to India in 1996, 2001 and 2004, as evidenced in the passport he submitted to the Tribunal at the hearing, is not consistent with his claimed fear of persecution in India either because of his religion or caste”.

  13. In all, I cannot see that there was any obligation on the Tribunal to consider any claim, whether expressly stated or otherwise, other than the two claims which were put before the Tribunal and which clearly arose from the circumstances before the Tribunal, that is, the applicant’s fear of harm on return because of his low caste and his membership of the Nirankari religion. This ground is not made out. 

  1. It should be noted that in these circumstances, therefore, it was not necessary for the Tribunal to consider whether adequate state protection was available to converts to Nirankari in India.

Ground Six in the Amended Application – Relocation to Delhi

  1. In the remaining ground the applicant, in the amended application (ground six), complains about the Tribunal’s finding that “it would be reasonable for” the applicant “to relocate to Delhi” (CB 118.3).

  2. The particulars to this ground state that the Tribunal did not take into account “the totality of the evidence in considering the reasonableness of relocation”. In short, as I understood the complaint, as explained by Mr Kumar at the hearing before the Court, it was that in looking at the issue of relocation, the Tribunal confined itself to a narrow range of matters. That is, that the applicant spent time in Delhi prior to his departure from India in 1984, and spent time in Delhi during his visits to India from the Philippines in 1996, 2001 and 2004, and that it did not look at the whole of the applicant’s circumstances and the practical realities faced by this applicant were he required to relocate to Delhi. In particular, that the Tribunal did not look at how the applicant, as a Nirankari and as of low caste, would fair should he be required to relocate to Delhi. 

  3. In reply, Mr Mitchell’s submission was that the Tribunal did address the issue as to why the applicant left India in 1984 as it related to his claimed low caste (see CB 115), and did consider the issue of his membership of the Nirankari faith and dealt with this in its findings and reasons (see CB 115.9 to CB 118.2).

  4. The submission was that in relation to the issue of its consideration of relocation, the Tribunal’s prior analysis does not fall away. That is, as it related to his claim to fear harm by reason of his being of low caste and as a Nirankari. In that context, when the Tribunal then turned its mind to the issue of relocation, those findings do not fall away and that when the Tribunal said that it would be reasonable for him to relocate to Delhi, it clearly must have had in mind that he was to relocate being a Nirankari and a member of a low caste. Further to these circumstances, the Tribunal found that the applicant was familiar with Delhi given the time that he had spent there in the past, and that he had shown himself capable of establishing himself in a place where he had no familial support by going to the Philippines, starting a business in retail and money lending, and that he had shown his flexibility and ability to adapt coming to Australia and living here, again with no support from family or friends. The Tribunal also noted that the applicant had not made any claims that he had experienced any problems whilst he was in Delhi in the past. For these reasons, the Tribunal was satisfied that relocation would be a reasonable option.

  5. Mr Mitchell’s submissions were that the Tribunal’s approach was consistent with the relevant test as set out in Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437 and as further explained by the High Court recently in SZATVv Minister for Immigration and Citizenship (2007) 237 ALR 634; [2007] HCA 40, and further that there were no compelling circumstances which the Tribunal failed to address as for example found in NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37.

  6. I agree with Mr Mitchell’s submissions in this regard and do not discern error in the way the Tribunal approached its consideration of the reasonableness of relocation. However, there is another, and it must be said simpler, reason for rejecting the applicant’s complaint as stated in this ground. After a comprehensive consideration of the applicant’s claims and evidence, the Tribunal came to a very clear conclusion as expressed at CB 117.10 to CB 118.2, that:

    “… the Tribunal does not accept if the applicant returned to India, he would face a real chance of persecution now or in the reasonably foreseeable future for reason of his religion, caste or any other Convention reason.  The Tribunal does not accept the applicant’s fear is well-founded.”

    This in my view is plainly the reason that the Tribunal affirmed the decision under review. That finding stands separate and independent, and does not rely on what follows when the Tribunal looked at the issue of relocation. Even further, it is clear that even in looking at relocation the Tribunal did not do so because it felt that there may have been a well-founded fear of harm for the applicant if he were to return to the Punjab. As the Tribunal plainly states, the issue of relocation was addressed in circumstances “if the applicant continued to have a subjective fear in relation to the Punjab” (CB 118.3).  This is reinforced with subsequently at CB 118.4:

    “… if the applicant continued to have a subjective fear in relation to the Punjab, it would be reasonable for him to relocate to Delhi.”

  7. Plainly the Tribunal found, on an objective basis, that there was not a well-founded fear of persecution for any Convention reason if the applicant were to return to any part of India, but was (in one sense unnecessarily) addressing the applicant’s “subjective fear”. Even if some error in relation to the relocation finding could be discerned, the Tribunal’s affirmation of the delegate’s decision remains and derives from its finding that the applicant did not have, on an objective basis, a well-founded fear of persecution for a Convention reason anywhere in India. This ground also does not succeed.

Other Considerations

  1. During the course of the hearing before the Court, Mr Mitchell requested an opportunity to obtain instructions on whether the Minister wished to make submissions to the Court as to whether any of the provisions of Part 8B of the Act would be relied upon in relation to Mr Kumar personally in the event that the Minister were to be successful in this matter and costs were to be pressed. I granted the opportunity for subsequent written submissions (both from the Minister and Mr Kumar). The Minister subsequently advised that he did not seek to pursue this issue. I should just note that, subsequent to the hearing, advice has also been received from Mr Kumar that he no longer represents the applicants.

Conclusion

  1. In any event, the applicant’s grounds as they remained in the amended application, and as explained in written and oral submissions made by legal Counsel before the Court, are not made out it. I cannot discern jurisdictional error in the Tribunal’s decision as it is said to arise from these grounds and accordingly the application is dismissed.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  A Douglas-Baker

Date:  21 December 2007

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