SZJYG & Anor v Minister for Immigration & Anor
[2007] FMCA 1399
•27 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJYG & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1399 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizens of India claiming fear of persecution for reason of membership of a particular social group and ethnicity, religion and imputed political opinion as a Sikh. PRACTICE & PROCEDURE – Jurisdiction – Notice of Motion – whether the court has jurisdiction – whether the application was filed out of time – Federal Magistrates Court bound by decision of the Full Court of the Federal Court. |
| Migration Act 1958 (Cth) ss.424A, 430, 430B, 430D, 477 |
| SZBJH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 669 SZBJI v Minister for Immigration [2006] FCA 216 SZICV v Minister for Immigration and Citizenship [2007] FCAFC 39 referred to Minister for Immigration and Citizenship v SZKKC [2007] FCAFC 105 followed Randhawa v Minister for Immigration (1994) 52 FCR 437 WACB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 210 ALR 190 referred to |
| First Applicant: | SZJYG |
| Second Applicant: | SZJYH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3915 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing dates: | 18 June & 4 July 2007 |
| Date of Last Submission: | 19 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 27 September 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kumar |
| Solicitors for the Respondent: | Nil |
| Counsel for the Respondent: | Mr Kennett |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The notice of motion is dismissed.
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $3,250.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3915 of 2006
| SZJYG |
First Applicant
| SZJYH |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) that was signed on 20th September 2006 and handed down on 12th October 2006. The Tribunal affirmed the decision of a delegate of the Minister not to grant protection (Class XA) visas to the applicants. The applicants filed their application for judicial review and an affidavit in support on 28th December 2006.
The first matter to be dealt with is an application by way of a notice of motion brought by the first respondent, the Minister for Immigration & Citizenship. The Minister contends that the Court lacks jurisdiction to hear the applicants' application for review because the application was filed outside the time allowed by s.477(1) of the Migration Act1958 (Cth) (“the Act”).
The applicants submit that the Court should allow the application by extending the time and permit the application to proceed for a final hearing. The applicants seek judicial review of a decision of the Refugee Review Tribunal signed on 20th September and handed down on 12th October 2006. The applicants filed their application for review on 28th December 2006. The application stated that the date when notification of the decision was received was "12/10/06".
The applicants did not place a cross in the box in the application to indicate that they wished to apply for an order that the time for making the application be extended under s.477 of the Act.
The application was first mentioned before a Registrar on 1st March 2007 and was originally adjourned to a callover to be held on
27th April 2007. On that date it was listed for final hearing before me on 4th July 2007. On 8th May 2007 the solicitors for the Minister filed a notice of objection for competency objecting to the jurisdiction of the Court to try the application on the grounds that:
a)the application is out of time;
b)the applicants are out of time to seek an extension of time pursuant to s.477(2) of the Migration Act; and
c)by virtue of s.477(3) of the Act, the Court must not make an order allowing or which, subject to sub-s.(2), has the effect of allowing an applicant to lodge an application outside the period specified in s.477(1).
The Minister also filed a notice of motion seeking orders that the application be dismissed on the grounds that:
a)the Court lacks jurisdiction to hear the application; and
b)the applicants are out of time to seek an extension of time pursuant to s.477(2) of the Act.
The notice of motion was accompanied by an affidavit by Elizabeth Warner‑Knight in which she deposed that she was given carriage of the matter on 16th January 2007, by which time the applicants were already outside the 84 day period in which to apply for an extension of time, being the time permitted by s.477(2) of the Act. Ms Warner‑Knight's affidavit set out the basis of the Minister's case:
When the application was filed on 28 December 2007(sic), it was outside the 28 day period[1].
By that date it was between 70 and 77 days from the date of notification, depending on whether the actual date of notification was 12 October 2006 or as late as 19 October 2006, being the date when the application to the Court appears to have been completed and/or signed by the applicant. In light of the recent judgment of the Full Federal Court in SZICV v Minister for Immigration & Citizenship (2007) FCAFC 39, the application is out of time and time in which to seek an extension of time may not be extended.
[1] The phrase 28 day period refers to the time allowed by s.477(1) of the Act in which to file an application for review of a decision of the Tribunal being a time within 28 days of the date of notification.
Evidence
The first applicant deposed in an affidavit that she was originally represented by a solicitor who also practiced as a migration agent.
She claimed that he was negligent in not filing her application in time. She also denied that she received notification of the decision on
12th October 2006and she did not receive her decision until late November or early December. The solicitor concerned has since filed an affidavit in which he claimed to have only had instructions to act for the first applicant's husband and not the first applicant. He claimed that he filed an application in this Court on 3rd November 2006 on behalf of the first applicant's husband.
On 18th June 2007 the application came before me and the first applicant was called to give evidence. She was shown a document which was a receipt and said that her lawyer gave her that receipt.
She said she told him to lodge his case and that was why her husband came to Sydney and he paid money to the lawyer on their behalf and he received the receipt. She sent some documents to the lawyer and produced a receipt from the post office. She was unable to attend Court earlier because her son was injured and she produced a medical certificate for that. She told the Court that she was notified of the decision two or three days after her husband received his decision.
In cross-examination by Mr Kennett of counsel for the first respondent Minister, the applicant confirmed that she wrote her application herself. She wrote the date, 12/10/06, and just copied it. She could not recall the exact date that she was notified. She did not know exactly when the decision was received but it was two or three days after her husband's decision arrived. She said she went to see the lawyer on the 17th and she remembered paying him. She said that they all hired the lawyer because they all needed his help. Her husband paid the money for all three of us, for her husband, her son and herself, for the lawyer. She told the Court the decision came through after they had obtained a lawyer.
I heard submissions from counsel for the applicant, Mr Kumar, the counsel for the first respondent, Mr Kennett, on 4th July 2007 on the substantive matter and reserved my decision to await the reasons for decision in another matter to be handed down by another federal magistrate, being a decision in a very similar matter. In the intervening period, on 12th July 2007, the Full Court of the Federal Court, Giles, Jacobson and Buchanan JJ handed down the decision in Minister for Immigration & Citizenship v SZKKC [2007] FCAFC 105.
On 19th July 2007, the solicitors for the Minister filed a further submission bringing to the Court's attention the decision in SZKKC (supra). The submission said relevantly:
The applicant in the present case was not personally served with a copy of the Tribunal's statement under s.430 of the Migration Act 1958, rather, on the evidence; a copy of the statement was posted to her. The decision in SZKKC is there for an authority squarely against the Minister's objection to the competency of the proceedings (and the associated motion seeking summary dismissal). The Minister formally submits that SZKKC is wrongly decided and presses his motion and objection to competency on that basis. While accepting that the decision is on point and binding on this Court. The Court has heard argument on the substantive issues in the present case and is, so far as we are aware, in a position to decide these issues. We do not seek any further listing of the case for oral argument.
I should place on record that the concession made in the Minister's submission is a very proper concession and reflects very favourably on the integrity of the Minister's lawyers in this case. I am mindful of the fact that the Minister seeks to be a model litigant in this Court.
In SZKKC the Full Court considered the obligation to notify the applicant of the written statement of the decision imposed upon the Refugee Review Tribunal by ss.430B(6) and 477(1) of the Act, taking into account the decision of the High Court of Australia in WACB v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 210 ALR 190. Buchanan J, with whom Giles and Jacobson JJ agreed, held at 30/7 that:
The sole method of actual as opposed to deemed notification of the written statement required by s.431 to be prepared by the RRT which is provided by the Act is delivery by hand. Such a result (although it is reached by consideration of the current provisions in Pt VII of the Act) accords with the outcome in WACB and the emphasis in the passages earlier quoted on physical delivery.
In that same judgment Giles J agreeing with the decision of Buchanan J said at [1]:
The consequence is to virtually render nugatory the time limit provided by s.477of the Migration Act 1958 (Cth). The starting point is the decision of the High Court in WACB V Minister for Immigration & Multicultural & Indigenous Affairs (2004) 210 ALR 190 that actual notification to an applicant in the decision requires physical delivery of the written statement of the decision prepared by the Refugee Review Tribunal (The Tribunal) to the applicant. Receipt of the decision statement by the applicant by other means (including coming into physical possession of it) would not accord with that requirement. What is more, the obligation to notify the applicant is imposed upon the Tribunal (eg s.430B(6)). It follows that otherwise than where the applicant appears at the handing down of the decision that the only means of the Tribunal satisfying the notification requirement in s.477(1) is if it engages staff or process servers to personally serve the decision's statement upon an applicant. It is interesting to speculate upon quite how a process server would identify and prove service upon an applicant. What is more, notification must take place within 14 days of the decision being handed down ( s.430B(6)(a), s.430D). The Minister has conceded that the first applicant was not personally served with a copy of the Tribunal's statement under s.430. The decision in SZKKC is on point and is, as the Minister has conceded, squarely against the Minister's objection to the competency of the application. The Minister has submitted that SZKKC is wrongly decided. This is not the arena in which such a submission can be argued successfully. It is a matter for the High Court. The decision in SZKKC is a decision of the Full Court of the Federal Court on appeal from the Federal Magistrates Court. It is binding on the Federal Magistrates Court. The notice of motion will be dismissed.
I will now proceed to consider the substantive issues. The Tribunal's decision record can be found at pages 182 through to 205 of the Court Book. From that decision record it can be seen that the two applicants, who are citizens of India, arrived in Australia on 14th March 2003 and applied to what was then the Department of Immigration & Multicultural Affairs for protection (Class XA) visas on 17th April 2003. A delegate of the Minister refused to grant the visas that were sought and the Tribunal, differently constituted, affirmed the delegate's decision on 14th January 2004.
The applicants then sought a review of that decision and on 10th May 2006 in the Federal Magistrates Court, Lloyd‑Jones FM made orders by consent quashing the Tribunal decision and issued a writ of mandamus requiring the Tribunal to consider and determine according to law the applicant's applications for review of the decision to the Minister's delegates to refuse their protection visa applications.
The matter was then returned to the Refugee Review Tribunal and the Tribunal wrote to the first applicant in these proceedings advising her of the reconsideration of her case by the Tribunal.
The Tribunal again wrote to the applicant on 15th June 2006 inviting her to attend a hearing to be conducted by video conference on
25th July 2006. The applicant attended the hearing which, as far as she was concerned, took place at the police station in Griffith, New South Wales. The Tribunal member and an interpreter in the Hindi language were present in Sydney. The applicant gave evidence that she is a Sikh by religion and gave evidence that, like her husband, she faced mistreatment which intensified when her husband left India in 2001 and claimed that the police after 1984 started raids and arrests of Sikhs in many Punjab villages to interrogate them on their involvement in various riots.
The applicant claimed that her home was raided in 1984 and her husband was arrested by police under the National Security Act because the police found documents in their home. They asked a village official for assistance but he demanded 10,000 rupees in order to secure her husband's release. The applicants could not pay that amount so they offered part of the husband's land which the man accepted and the husband was released.
The police again began interrogating the husband about his involvement in riots. On one occasion his left hand was badly injured by police during interrogation. The husband left the village in July 1985 and took shelter elsewhere. He became more involved with the Sikh religion and remained away for about five years. He travelled to Australia in April 2001 and remained in Australia until July 2001.
He returned to India in December 2001 when he planned to go to his home village but he was again arrested by the police for helping the Sikhs and the applicant and her husband experienced mistreatment by police and government officials.
The applicant claimed that their lives were in danger from the police because they had bribed one of the police officers to arrange the husband's release from custody. The applicant's husband advised her to leave the country to save her life and she obtained a tourist visa.
She claimed that if they returned to India they would both be arrested because false cases had been brought against them.
The Tribunal set out an extensive summary of the evidence of the applicant and also of the applicant's husband. After the hearing, the Tribunal wrote to the applicant on 16th August 2006. That letter was headed:
Invitation to Comment on Information
and told the applicant:
You gave evidence at the Tribunal on 25 July 2006 and your husband gave evidence to the Tribunal on the same date.
A summary of the evidence provided by you and your husband on that date is attached. The evidence of both you and your husband relates to events that you both experienced in India before your departure for Australia. The evidence you gave at your hearing in July 2006 is different in some key respects from the evidence you gave in your protection visa application and from the evidence you and your husband gave at your Tribunal hearings in September and December 2003. It is also different in some key respects from the evidence your husband gave at the Tribunal hearing of July 2006 about the same or similar events experienced by you both in India. The major discrepancies in their evidence is set out below. The information that is set out below would, subject to any comments you make, for the reason or part of the reason for deciding that you are not entitled to a protection visa.
The letter then set out the particular items of evidence and went on to say:
The information set out above at pages 1 to 4 is relevant because of the numerous significant differences in the information you provided in your protection visa application, the evidence you gave at the Tribunal hearings of September 2003 and July 2006 and the evidence your husband gave at the Tribunal hearings of December 2003 and July 2006. These major discrepancies could lead the Tribunal to form the impression that you are not a credible witness and therefore that your claims are not true. You are invited to comment on this information. Your comments are to be in writing and in English. They are to be received at the Tribunal by 8 September 2006.
See Court Book pages 162 to 165.
There followed a summary of the evidence of both applicants which is reproduced in the Court Book at pages 166 through to 174.
On 3rd September the applicant wrote to the Tribunal replying to the Tribunal's s.424A letter. A copy of the applicant's comments can be found in the Court Book at pages 175 through to 178. The Tribunal handed down its decision on 12th October 2006.
The Tribunal in its decision considered independent country information which is set out at pages 195 to 199 of the Court Book. That country information included a report dated January 2003 from Amnesty International about torture and custodial violence in the Punjab; a report from the executive director of Human Rights Watch about the plight of India's Sikhs in the Punjab; a report from the BBC news about the fading of Sikh militancy; a report from the United States Department of State Country Report on Human Rights Practices 2005; a report from the United Kingdom Home Office of 3rd April 2006 in respect of the current situation of the Sikhs in the Punjab; and a report from the United States Department of State about relocation as well as advice from the Australian Department of Foreign Affairs & Trade and the United Kingdom Home Office again relating to relocation.
The Tribunal's findings and reasons are set out on pages 199 to 205. The Tribunal, based on the evidence of the applicant's passport, accepted that the applicant is a national of India and accepted that she is the wife of another applicant before the Tribunal. However, the Tribunal referred to:
Serious discrepancies in the applicant's claims over time and discrepancies between her evidence and that of her husband.[2]
[2] See Court Book at 199
The Tribunal noted that the applicant had said that the advisor whom she and her husband had engaged before they lodged their protection visa application was either incompetent or remiss in the handling of his case. However, the Tribunal was not of the view that the incompetence of the advisor or the stress on the applicant because of the depressive illness suffered by her husband adequately explained a number of the discrepancies in the evidence.
The Tribunal noted that the applicant's claims for refugee status were founded on her own alleged persecution in India, mainly for reasons of her membership of a particular social group; that is her husband's family as well as her ethnicity, religion and imputed political opinion as a Sikh. The Tribunal, however, rejected the applicant's claim to have been persecuted in the past in India although he had accepted that she had been harassed on occasion by the authorities. The Tribunal took country information into account and noted that the situation for Sikhs in the Punjab, especially those with political affiliations to Sikh militant groups, was extremely difficult and subject to serious human rights violations from the early to mid 1980s to the mid 1990s.
The Tribunal, taking into account the conditions in Punjab in 1984 when the applicant's husband claimed to have been arrested and interrogated and mistreated by the police and accepted the basic account of both husband and wife, that the husband was approached for food by Sikh militants; assisted them; reported the matter to the local head man who is a Hindu and was subsequently arrested, questioned and mistreated by the police. The Tribunal found that the applicant's husband was persecuted in 1984 for reason of his ethnicity and religion as a Sikh as well as for his imputed political opinion at a Sikh militant.
The Tribunal also noted that the applicant had made no claim to have suffered serious harm in India before her marriage for reasons of her ethnicity, religion or imputed political opinion as a Sikh or for any other reasons. The Tribunal noted also that the applicant, and I quote:
The applicant's principal claim to refugee status rests on her claim to have been seriously harmed by the authorities in either 2001, during and after her husband's first visit to Australia, or after her husband's departure from Australia in 2002.
The applicant's husband was in Australia for some three months, from April to July 2001 but did not apply for a protection visa during this time. When asked why he did not do so, the applicant told the Tribunal in September 2003 that they had a good business, their life was peaceful and the police had only come once or twice. The applicant's husband told the Tribunal in December 2003 that his relatives in Australia told him to go home to India. However, the applicant's husband also told the Tribunal in July 2006 that he was told in Australia both that it would take some time to lodge a protection visa application and that the applicant was being harassed in India while he was being away. The applicant did not make any mention of this arrest and detention to the Tribunal here in September 2003. At her hearing in July 2006, the applicant made a very confused claim about being detained in 2001. At first she said she was arrested by the police in Bombay where she had gone to see her husband off on his trip in 2001, later she said she was arrested in August 2001 while her husband was away. When it was put to her that her husband had returned to India in July she said that when he came back she was in detention and was there for one and a half months, being released after he had paid a bribe.[3]
[3] Court Book 201-202
The Tribunal rejected the applicant's claim that she was arrested and detained by the police in 2001 and the rest of her claim that she and her husband were harassed by the police prior to and after his trip to Australia in that year, and rejected her claim that her husband was arrested, detained and bashed by the police after he returned from Australia in August or September 2001. The Tribunal went on to say:
The Tribunal has given the husband the benefit of the doubt in accepting the claim made by the applicant on two occasions that he was arrested at the end of 2001 in Punjab. It does not accept that he was mistreated in Punjab, but even if this were to be the case, it is satisfied that any risk in Punjab could be averted by relocation discussed below.[4]
[4] Court Book 202
The Tribunal also accepted two further claims made by the applicant, a claim that she and her husband would be arrested under false cases by the police if they returned to India and a claim that, what is known as the 1984 problem continued, and that her husband had not been charged and beaten because they had obtained bribes. The Tribunal rejected those claims. It was not satisfied that the applicant suffered harm sufficiently serious to amount to persecution in a Convention sense in the past. The Tribunal then went on to consider whether there was a real chance that the applicant would be persecuted if she returned to India in the foreseeable future.
The Tribunal was not satisfied that there was a real chance that that would happen and was not satisfied the applicant had a well-founded fear of persecution in India. The Tribunal noted certain humanitarian considerations at page 204 of the Court Book which I will quote:
The Tribunal recognises that the depressive illness of the applicant's husband is a serious problem for him and for the applicant and that he is likely to receive better management of his condition in Australia than in India. It recognises that the burden of care on the applicant wife is therefore likely to be greater on her in India than in Australia. However, this is a humanitarian consideration and the Tribunal's role is limited to determining whether the applicant satisfies the criteria for the grant of a protection visa. A consideration of her circumstances on other grounds is a matter solely within the Minister's discretion.[5]
[5] Court Book 204
The Tribunal is not satisfied that the applicant was a person to whom Australia has protection obligations and affirmed the decision not to grant a protection (Class XA) visa.
In the applicant's substantive case, counsel for the applicant, Mr Kumar, submitted that there were three grounds upon which it could be found that the Tribunal had fallen into jurisdictional error. The first ground related to the Tribunal's finding as to relocation.
He pointed out that the applicant's are a mother and child and referred the Court to the decision in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs[6] .
[6] (1994) 52 FCR 437 at [442]
He submitted that the Tribunal had considered general country information and decided that the applicants could live in another part of the country even if the husband could not relocate. He submitted that whilst there may be Sikhs living in other parts of India, the Tribunal had failed to take into account issues such as the background, education and financial resources of these applicants. The Tribunal had also failed to consider the issues such as education and background of the mother who has not otherwise worked in India and had not considered how she could in a practical sense relocate to another part of India.
Her submission is that the Tribunal made a jurisdictional error that the applicant could relocate elsewhere in India in that the Tribunal failed to give consideration to how, in a practical sense, the applicant could relocate. Mr Kumar, for the applicant, also submitted that the Tribunal has failed to address the meaningfulness of such relocation in the context of the applicant's situation. Rather, by reference to country information, the Tribunal has failed to consider the practical realities and referred the Court to the decision in SZBJI v Minister for Immigration[7]. He also submitted that the Tribunal had failed to consider the ability of the applicant to be involved in the activities that led to the alleged harm and consideration of a relocation opportunity.
[7] [2006] FCA 216 at [21]
The second ground relates to persecution, or the possibility of persecution, by non-State actors. Mr Kumar submitted that the applicants had articulated a case about persecution from the neighbour who was also the village sarpanch, or headman, called Kedar Nath. Whilst it is conceded that this claim had been subject to a letter to the applicant under s.424A of the Migration Act and the applicant had commented in reply. Mr Kumar submitted that this was not subject to appropriate consideration by the Tribunal of which it failed to properly address this integer of the applicant's claim. The submission is that the Tribunal addressed the wrong question in assessing whether the problems created by the person, Kedar Nath, was founded.
At page 203 of the Court Book the Tribunal said:
The Tribunal did not accept the applicant's husband, if he had believed that the source of the problem was Kedar Nath would not have attempted to negotiate with him at some point after 1985. The Tribunal rejected the applicant's husband claim that he was at risk of serious harm from Kedar Nath, the village headman in Punjab.
The Tribunal's rejection of the evidence, it is submitted, is premised on the applicant's husband reacting only in one particular way in response to the problem, ie by entering into negotiations. Although this was a credibility finding, the applicant submitted that as the Tribunal has clearly stated a basis for making the finding, the Court can interfere in the findings if they are premised on asking the wrong questions. See SZBJH v Minister for Immigration & Multicultural & Indigenous Affairs[8].
[8] [2005] FMCA 669 at [18]
In that case, Raphael FM considered the use of country information and credibility finding. The applicant submits that it does not matter. When questioned in the way that the Tribunal posed the question in its finding in the proceeding, the reason for the finding is given and that this constitutes jurisdiction error. With respect, I have difficulty working out precisely what is meant by that claim.
The third ground is that the Tribunal misapprehended the law, or erred in law, in stating that there ought to have been a Convention reason in particular circumstances in which the applicant suffered harm instead of directing its inquiries as to the effectiveness of State protection.
The applicants refer to the Tribunal decision at page 201 of the Court book where the Tribunal said:
The Tribunal does not accept that the harassment was experienced by the applicant and that the harassment experienced by the applicant was sufficiently serious to amount to persecution in the Convention sense.
The submission is that the Tribunal misapprehended the law and has not addressed its mind to the issue of effective State protection by looking for a Convention connection. The applicant did not have to address Convention grounds when the issue was effective State protection. The alleged persecution of the applicant was carried out by non-state actors and the Tribunal failed to appreciate that, where such persecution arises, the issue to appreciate is the effectiveness of State protection.
In making its decision, the Tribunal failed to take into account the relevant considerations, being the applicant's group and effective State protection. It was also submitted that the Tribunal misdirected itself, whether there had to be a Convention reason in the circumstances of the claims of the applicant and if the issue of State protection has not been addressed by the Tribunal, the Tribunal appears to have taken a view that it does not need to address this issue because the Convention reasons did not apply in the applicant's situation.
In summary, the applicant submitted to the Tribunal:
i)erred in attempting to ascertain Convention reasons; and
ii)failed to make a finding if there was no adequate State protection.
For the respondent Minister, Mr Kennett of counsel submitted that the Tribunal had carefully analysed the applicant's claims about the harm she said that she had suffered in India in the past, including by comparing her evidence to that of her husband, a process which involved a very detailed invitation to comment on information pursuant to s.424A of the Migration Act, giving the applicant and her husband the benefit of the doubt, the Tribunal was prepared to accept that they had been harassed by the authorities from time to time up to the year 2001. However, the Tribunal did not accept that this harassment was sufficiently serious as to amount to persecution in a Convention sense and it expressly rejected the applicant's other claims to have suffered harm in India as a result of her ethnicity, connection to her husband or imputed political opinion.
The Tribunal, against that background, then considered whether there was a real chance that the applicant would be persecuted if she were to return to India in the foreseeable future. In the light of country information, the Tribunal concluded that the situation for Sikhs had changed substantially since the mid 1990s and that Sikhs generally were not at risk of persecution for reasons of ethnicity. The applicant had not, on her own evidence, been involved in any political group.
The Tribunal had also found that the applicant's husband was not at risk of persecution including at the hands of his village headman from the Punjab. Even if the applicant's husband and therefore the applicant was at risk of serious harm in the Punjab. The Tribunal considered that that risk could be avoided by living in another part of India. Considering their age, experience and circumstances, the Tribunal found that it would be reasonable for the applicant and her son to return to another province rather than the Punjab where indeed they had not lived for some years.
The Submission on behalf of the Minister are that the Tribunal's conclusions of fact were open to it on the material and that no relevant error can be seen in the Tribunal's approach. In considering these matters I am satisfied that, first of all, the Tribunal considered the reasonableness of relocation in the way as set out in Randhawa's case. The Tribunal's finding as to relocation at page 203 of the Court Book was a finding that:
Even if the applicant's husband were at risk of serious harm in Punjab and the applicant and applicant's son were therefore also at risk.
The Tribunal took the view that there were millions of Sikhs successfully living in other states in India and relocation within India was a reasonable option. However, the primary finding by the Tribunal was a rejection of the claim, thus there was no need to consider the issue of relocation but the Tribunal did do so on the "even if" basis.
As to the applicant's second ground, this was an attack on the conclusions of the Tribunal. The Tribunal rejected the applicant's claim that the applicant husband faced a real chance of harm from his former village headman in the Punjab and the applicant's second ground does no more than take issue with the Tribunal's factual findings.
The Tribunal did not accept that the harassment suffered was sufficiently serious to amount to persecution in a Convention sense.
As to the third ground, which is rather difficult to ascertain, the issue of effective State protection is one that does not arise unless the Tribunal is satisfied that there is persecution in the Convention sense. In my view the applicant's grounds are essentially challenging the Tribunal's factual findings but there was sufficient evidence for the Tribunal to warrant the factual findings that were made. There is no jurisdictional error. The Tribunal decision is a privative clause decision and therefore it is not subject to orders in the nature of declaration, certiorari, mandamus or prohibition. The application will be dismissed with costs.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 30 August 2007
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