SZJGP v Minister for Immigration and Citizenship

[2008] FCA 877

FEDERAL COURT OF AUSTRALIA

SZJGP v Minister for Immigration and Citizenship [2008] FCA 877

SZJGP AND ORS v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR

NSD 11 OF 2008

EMMETT J

26 MAY 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 11 OF 2008

BETWEEN:

SZJGP
First Appellant

SZJGQ
Second Appellant

SZJGR
Third Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	26 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellants pay the Minister’s costs of the appeal fixed in the sum of $3,400.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 11 OF 2008

BETWEEN:

SZJGP
First Appellant

SZJGQ
Second Appellant

SZJGR
Third Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE:	26 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of the Federal Magistrates Court dismissing an application for judicial review of a decision of the second respondent, the Refugee Review Tribunal (the Tribunal).  The appellants are citizens of India, who arrived in Australia on 4 January 2006.  They applied for Protection (Class XA) visas under the Migration Act 1958 (Cth) (the Act), on 27 January 2006.  A delegate of the first respondent, the Minister for Immigration and Multicultural Affairs (the Minister), refused the application on 20 March 2006.  The appellants then applied to the Tribunal on 24 April 2006 for review of the delegate’s decision.

2. On 31 July 2006, the Tribunal affirmed the decision not to grant protection visas.  They were notified of that decision on 10 August 2006.  The appellants then applied to the Federal Magistrates Court for judicial review on 28 August 2006.  On 29 January 2007 they filed an amended application, the grounds of which were further amended in the course of the hearing before the Federal Magistrates Court, which took place on 29 November 2007.  On 21 December 2007 the Federal Magistrates Court made orders that the proceeding be dismissed and that the appellants pay the Minister’s costs in the sum of $6000.  The appellants were represented at the hearing before the Federal Magistrates Court by counsel. 

3. By notice of appeal filed on 7 January 2008, the appellants appealed to the Federal Court from the orders of the Federal Magistrates Court.  When the matter was called on for hearing today the first appellant appeared for himself and for the second and third appellants, who were not in Court.  The first appellant does not understand English and was assisted by an interpreter, whom the appellant appeared to understand without difficulty.  The second and third appellants’ claims appear to be dependent, at least to some extent, on the first appellant’s claims. 

4. I shall say something about the findings of the Tribunal before considering the reasons of the Federal Magistrates Court for making its orders.  The appellants travelled to Australia on valid Indian passports.  The Tribunal accepted that they may belong to a low or backward caste in India and that some people from such castes are subjected to discrimination and harassment in India.  The Tribunal accepted that, while the practice of untouchability was outlawed many years ago in India, the caste system remains an important aspect of life and continues to disadvantage people belonging to the lower castes. 

5. The Tribunal found that the first appellant was not denied the right to earn a livelihood.  When asked what problems he experienced because of his caste, he claimed that it was pointed out to him that he belonged to a low caste and that gave him an inferiority complex.  While the Tribunal accepted that the continual reminder of belonging to a low caste may be hurtful and result in feelings of inadequacy, the Tribunal did not accept that such name calling or teasing constituted persecution within the meaning of the Refugees’ Convention.  The Tribunal accepted that people in the appellant’s village may have taunted him about his caste and lack of education when he returned to India from the Philippines on several occasions.  However, the Tribunal found that that treatment was not of such seriousness as to constitute persecution within the meaning of the Refugees’ Convention. 

6. The appellant also made claims concerning his adoption of a particular religion.  The Tribunal accepted that the appellant and his family may have changed their religion because of their caste.  The appellant claimed to belong to the Saint Nirankari Mission religion.  While the appellant appeared to have very little knowledge of that religion, the Tribunal gave him the benefit of the doubt and accepted that he may belong to the religion. 

7. The Tribunal accepted that there had been instances of violence between the Nirankaris and Sikhs, especially in the late 1970s.  However, the Tribunal observed that the appellant did not claim to have experienced any harm as a result of his religion; rather he claimed that he left India because he was scared that something might happen to him and his family.  According to the appellant’s evidence at the hearing, the only interest he received were inquiries by Sikhs and the government as to whether he was a Nirankari or not.  When the Tribunal asked the appellant what sort of inquiries he received he claimed that he was held by the authorities.

8. The Tribunal did not accept that the government made any inquiries about the appellant’s religion, given the vagueness of his claims.  The appellant did not say when he was held, how long he was held or where he was held.  The appellant claimed that he had been arrested in January or February 1984 because of his religion.  However, the appellant was unable to give the Tribunal any information concerning the offences with which he had been charged and for which he claimed he was still wanted.  The Tribunal found the evidence provided by the appellant concerning his alleged detention was confusing and that it was inconsistent with documents that he submitted in support of his claims.

9. The Tribunal found that a warrant submitted by the appellant to the Tribunal was not genuine.  The Tribunal did not accept, if the appellant was of any interest to the authorities for the offences specified in documents produced by him, that he would have been able to enter and depart India legally on numerous occasions, as evidenced in his passport, which the appellant produced at the hearing for the Tribunal’s consideration. 

10. While the Tribunal found, on the basis indicated, that the appellant was a member of the Nirankari Mission religion from 1978, it did not accept that he experienced any problems that could be characterised as serious harm up until the time when he departed India in April 1984.  The Tribunal did not accept, on the three occasions that the appellant returned to India from the Philippines, that he was subjected to any harm because of his religion. 

11. The appellant assserted to the Tribunal that when he went to Delhi he would go to a place of worship.  The Tribunal concluded from this that the appellant was able to practice his Nirankari faith without experiencing any problems while he was in Delhi.  The Tribunal was unable to find any recent reports that followers of the Nirankari religion are unable to practice their faith or are mistreated in India.  The Tribunal found that, if the appellant were to return to the Punjab, he would be able to practice his Nirankari faith without any problems and without harm that could be said to amount to persecution. 

12. The Tribunal found that the appellant’s willingness to return to India in 1996, 2001 and 2004, as evidenced in his passport, was inconsistent with his claimed fear of persecution in India because of his religion or because of his caste.  Given that the appellant voluntarily returned to India on a number of occasions and did not claim to have experienced any serious problems, the Tribunal did not accept that, if the appellant returned to India now, he would face a real chance of persecution in the reasonably foreseeable future, for reason of his religion, caste or any other Convention reason.  The Tribunal considered that if the appellant has a fear of persecution, it is not well-founded. 

13. In addition, the Tribunal found that if the appellant genuinely had a subjective fear in relation to the Punjab, it would be reasonable for him to relocate to Delhi where he spent some time prior to his departure from India in 1984 and during his visits to India from the Philippines in 1996, 2001 and 2004.  The appellant made no claims to the Tribunal that he had ever experienced any problems while in Delhi.  On that basis, the Tribunal was satisfied that relocation would be a reasonable option if the appellant continued to have a subjective fear in the Punjab. 

14. In those circumstances, the Tribunal found that the appellant did not face a real chance of persecution in India for a convention reason.  It concluded, therefore, that Australia does not have any protection obligations under the Refugees’ Convention to any of the appellants. 

15. The three grounds that were ultimately relied upon before the Federal Magistrates Court can be summarised as follows:

    (1)The Tribunal relied on adverse information without giving the appellants opportunity to comment upon the information given to the delegate and adversely used against the appellants.

    (2)The Tribunal failed to consider that the appellants as members of a class of persons who had converted from other religions to the Nirankari faith, and the effective state protection in India in respect of those of Nirankari faith and who are, in particular, of the appellants’ social class and convertees to that religion.

    (3)The Tribunal failed to consider the meaningfulness and the totality of the appellants’ circumstances in relation to relocation within India. 

    The grounds of appeal to this Court were effectively that the learned Federal Magistrate was in error in not finding that the grounds relied upon constituted jurisdictional error on the part of the Tribunal. 

16. The Federal Magistrate addressed each of the grounds that were pressed before him.  Ground 1 was in effect an assertion that the Tribunal had failed to comply with the requirements of s 424A.  It was said that the Tribunal used certain passenger movement information to assess the appellants’ credibility.  Reliance was placed on the observation in the Tribunal’s reasons that the appellant 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.  

17. The primary judge found that the travel movement details that were referred to by counsel for the appellants had absolutely nothing to do with travel into and out of India.  The travel movement details concerned only the appellants’ entry into Australia in 2006 of the appellants.  They did not relate to any movement of the appellants in and out of India in the years to which the Tribunal referred.  His Honour found that the movement details clearly did not form a part of the reason for the Tribunal’s decision.  There was no possible error in that conclusion.

18. In his written submissions to the Federal Court, which the first appellant said was prepared variously with the assistance of his former counsel, his friends and his family, some suggestion appears to be made that there was a failure to comply with s 424A insofar as the details of movements in and out of India were part of the reason for the Tribunal’s decision.  However, as the Tribunal said in its reasons, that information was derived from the first appellant’s passport, which was provided to the Tribunal by him.  The information was also confirmed orally in the course of the hearing.  There is no possible argument for failure to comply with s 424A.

19. The second ground pressed before the Federal Magistrates Court was also dealt with by the primary judge.  The complaint was that, in looking at the appellants’ circumstances, the Tribunal failed to consider that the first appellant and his family were members of a particular social group, being persons who had converted to the Nirankari faith, and that effective state protection was not available to persons in that group.  It was submitted to the primary judge that 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 them.

20. However, the primary judge found that no such claim had ever been made to the Tribunal.  While the appellant asserted that he had changed his religion to become a Nirankari, the claims that were made to the Tribunal were no more than a factual statement.  The claims related to his being a Nirankari, not being a convert to Nirankari.  As a Nirankari, he was indistinguishable from others who were born to that faith and therefore claimed to fear harm from extremists and others in the Punjab.  There is nothing in the claims that were made to the Tribunal to suggest fear because he had converted for reasons of his low caste.

21. The Federal Magistrates Court pointed out that the claims made on behalf of the appellant by his migration adviser to the Tribunal were that the appellant had left India in 1984 because of the violence against people of the Nirankari faith by Sikh extremists and that he was a person born into a low caste family and suffered harm because of his caste.  There was nothing suggested to the Tribunal that could give rise to a claim that the appellant feared harm because he was a convert to the Nirankari faith as opposed simply to being a member of the faith.  His Honour could find no reason why there was any obligation on the part of the Tribunal to consider such a claim and concluded that the ground was not made out.  There was no error in his Honour’s reasoning in that regard. 

22. The third ground concerned the Tribunal’s finding that it would be reasonable for the appellants to relocate to Delhi.  It was strictly unnecessary for the Tribunal to consider that question, having concluded that the appellant did not have a well-founded fear of persecution for a convention reason should the appellants return to India.  Nevertheless, the primary judge considered the contentions advanced on behalf of the appellants.  The complaint was that, in looking at the issue of relocation, the Tribunal confined itself to a narrow range of matters.  In particular, it was said that the Tribunal did not look at how the appellants, as Nirankaris and as of low caste, would fare should they be required to relocate to Delhi.

23. His Honour found that, when the Tribunal said that it would be reasonable for the appellants to relocate to Delhi, it must have had in mind that they would relocate being Nirankaris and members of a low caste.  Having accepted those assertions, there was no reason to think that the Tribunal found that it was reasonable for them to relocate on some other basis.  As the primary judge observed, the Tribunal found that the first appellant was familiar with Delhi, given the time that he had spent there in the past.  He had also shown himself capable of establishing himself in a place where he had no familial support by going to the Philippines, and by starting a business in retail and money lending there.  The first appellant also showed his flexibility and ability to adapt by coming to Australia and living in Australia with no support from family or friends. 

24. The primary judge discerned no error in the way the Tribunal approached its consideration of the reasonableness of relocation.  I do not consider there was any error on the part of the primary judge in reaching that conclusion.  In any event, as his Honour said, it was unnecessary for the Tribunal to deal with that matter having regard to the conclusion that it had reached that the appellant had no well-founded fear of persecution upon return to India.

25. In his written submissions the appellant referred to common law rules of natural justice. They have no bearing on the Tribunal’s decision, since the application for review was governed by the operation of section 422B of the Act.

26. The appellant has not shown any error on the part of the Federal Magistrates Court.  The appeal should be dismissed.

27. The Minister asks for his costs of the appeal.  The costs incurred by the Minister in connection with the proceeding amount to about $4,600, including disbursements for counsel’s fees.  The Minister asks for an order for costs, fixed in the amount of $3,400, which represents a significant discount on the costs that would be recoverable on taxation.  In the circumstances, it is appropriate to fix the amount of costs to which the Minister should be entitled in the sum of $3,400.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:       17 June 2008

The First Appellant appeared in person.

Counsel for the First Respondent:	Mr T Reilly
Solicitor for the First Respondent:	Sparke Helmore
Date of Hearing:	26 May 2008
Date of Judgment:	26 May 2008