SZROQ v Minister for Immigration
[2013] FCCA 424
•13 May 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZROQ v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 424 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it made an incorrect finding of fact, made a finding for which there was no evidence and failed to afford the applicant an opportunity to appear before it a second time. |
| Legislation: Migration Act 1958, ss.36, 474 |
| Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZROQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1355 of 2012 |
| Judgment of: | Judge Cameron |
| Hearing date: | 13 May 2013 |
| Date of Last Submission: | 13 May 2013 |
| Delivered at: | Sydney |
| Delivered on: | 13 May 2013 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $4,920.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1355 of 2012
| SZROQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of India who arrived in Australia on 2 August 2009 on a student visa which expired on 4 August 2010. On 21 October 2011 the applicant lodged an application for a protection visa with the Department of Immigration and Citizenship, alleging that he feared persecution in India by reason of his membership of the “Babbar Khalsa Party”. On 16 February 2012 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-10 of the Tribunal’s decision.
The applicant did not attach a statutory declaration or any other written claim to his application for a protection visa. On the application form, he stated that he was a Sikh and made the following claims for protection:
Why did you leave [India]? Due to my religion, my family is in threat.
What do you fear may happen to you if you go back to [India]? [BLANK]
Who do you think may harm/mistreat you if you go back? The current Government of India.
Why do you think this will happen if you go back? I will be killed.
Do you think the authorities of [India] can and will protect you if you go back? If not, why not? [BLANK]
The applicant was interviewed by a delegate of the Minister on 31 January 2012 and relevantly made the following claims:
a)he joined the Babbar Khalsa Party whilst he was studying and was involved in about fifteen protests. His family members were also supporters of the Party;
b)the Babbar Khalsa Party was opposed by the Congress Party which warned the applicant and his family to stop supporting the Party and made threatening phone calls to them. He claimed that he was bashed by agents of the Congress Party; and
c)he could not return to India because of the assistance he gave to the Babbar Khalsa Party and because he had been bashed. He claimed that he would be bashed and killed if he returned to India and that many party members had left already left the country. He said that the majority of his village supported the Congress Party and he would be easily identified if he returned.
The applicant appeared before the Tribunal on 10 May 2012 and obtained an adjournment. The hearing resumed on 16 May 2012 when the applicant relevantly made the following additional claims:
a)his life was in danger and he could not return to India because he used to support a Sikh party called Babbar Khalsa. The government of India was ruled by the Congress Party which did not like Sikhism and made trouble for those who followed Babbar Khalsa;
b)he joined Babbar Khalsa in either 2003 or 2004 to support the innocent members who had died at the attack on the Golden Temple. He participated in eight or ten protests from 2004 until 2005 or 2006. In those protests, he “raised slogans” against the government and spoke out in public. They used to go to town halls and shout slogans at the mayors. He said that the protests were peaceful and were about the Sikhs getting their rights;
c)he stopped participating in the movement after 2006 when the government started to catch members. From 2006 he started to look for ways to leave the country;
d)he was detained twice by police in 2005. On the first occasion he was arrested with other protestors and detained for two or three days. He was released without charge but was told to leave the area. On the second occasion, three or four months after the first, he was arrested again and detained for fifteen to twenty days. After his release, the police made a file to keep a record of his activities;
e)after the incidents in 2005, everything became very quiet until 2006 when the police began visiting his house and troubling him;
f)he was not involved in and was not aware of the movement’s alleged terrorist activities. He said that the movement wanted all Sikhs to fight for their rights and that he was scared of the local police because they did not consider it right that he supported the movement. He claimed that other people in his village who supported the Congress Party would encourage or arrange for the police to harm him; and
g)he was precluded from applying for government jobs, such as the army, the police and the public service. This was because, as a Sikh, he was a member of the Jatt caste which was deemed by the Indian authorities to be a general caste and was prohibited from applying for such positions after the age of twenty-three or twenty-four.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or pursuant to s.36(2)(aa) of the Act. The Tribunal’s decision was relevantly based on the following findings and reasons:
a)whilst it acknowledged that the applicant’s evidence at the hearing was consistent with the evidence he gave at his departmental interview, the Tribunal did not accept that the applicant had ever been a member of the Babbar Khalsa. In this connection, the Tribunal referred to the applicant’s inability to provide any information about the organisation’s structure or activities and his inability to name the leader of the organisation. It also referred to the applicant’s evidence that he was unaware of what the organisation had been accused of doing. Because of these findings, the Tribunal also did not accept that the applicant had previously been detained by the police for his activities as a member of the group, that members or agents of the Congress Party would harm him upon his return, or that he would engage in any activities associated with the Babbar Khalsa should he return to India;
b)whilst the Tribunal was prepared to accept that the applicant was sympathetic to pro-Sikh causes and had attended pro-Sikh rallies and protests when he lived in India, it did not accept that he was involved in political activity in any significant way apart from being a general supporter of Sikhism. The Tribunal found that there was no country information that suggested that mere supporters of pro-Sikh movements were under any threat from either the Congress Party, its supporters or the government in general; and
c)in reference to the applicant’s employment discrimination claim, the Tribunal accepted his evidence that he was a member of the Jatt caste and also accepted that membership of that caste constituted membership of a particular social group. However, the Tribunal was unaware of any age limit law of the type referred to by the applicant and was unable to find any reference to it in any country information. It referred to an (Indian) Union Public Service Commission Recruitment website which stipulated age limits for various categories of jobs. These age limits ranged from thirty years to fifty years of age. Whilst the Tribunal accepted that there were age limits for various Indian public sector employees and that the policy could fall within the definition of discriminatory conduct, it did not accept that the policy amounted to persecution. The Tribunal did not accept that the government’s age limits for various public service positions would cause the applicant to face any significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood. In this connection, the Tribunal referred to the lack of evidence suggesting that these policies applied in the private sector, the fact that the applicant had never previously worked for the public sector and his family’s agricultural resources.
Proceedings in this Court
In the application commencing these proceedings the applicant alleged:
1.The applicant claimed he would face employment discrimination because he was a member of the Jatt caste. The Tribunal found at paragraph 68 that “given the family resources (the farm), the Tribunal does not accept that the applicant will face any significant economic hardship or denial of access to basic services or denial of capacity to earn a living”. The last time the applicant worked on the farm was in 2004 and there was no evidence before the Tribunal that the applicant’s father had capacity to employ the applicant on the farm or otherwise support the applicant. In the circumstances, the Tribunal’s finding involved jurisdictional error.
2.The Tribunal found at paragraph 59 of its decision that “the applicant was unable to provide any information about the organisation’s structure”, being the structure of Babbar Khalsa. The Tribunal did not ask the applicant questions about the structure of Babbar Khalsa. In the circumstances, the Tribunal’s finding involved jurisdictional error.
At the hearing of this application, the applicant also suggested that he felt he had been entitled to, but denied, a second hearing before the Tribunal.
Ground 1
The first ground of the application alleged that the applicant would face employment discrimination because he was a member of the Jatt caste. The allegation then goes on to refer to the applicant’s family resources and aspects of the applicant’s personal history, presumably to demonstrate that discrimination based on caste would have a significant impact on the applicant. The allegation is that, taken together, those matters demonstrated that the Tribunal erred.
However, the real substance of this ground lies in the allegation that the applicant would face discrimination by being a member of the Jatt caste, and the implied allegation the Tribunal wrongly found that he would not. The other matters raised by the allegation would only assume significance if this issue were resolved in favour of the applicant. That is to say, the allegation of jurisdictional error made in the first ground of the application depends on the Court finding that the Tribunal erred by finding that the applicant would not suffer caste-based discrimination in employment in India. A finding of fact will manifest error of the sort which will support a finding of jurisdictional error if it is made without any evidence to support it. However, the finding referred to by the applicant in the first sentence of the first ground of the application does not fit that description. In finding that the applicant would not face employment discrimination based on his caste, the Tribunal relied on information concerning the recruitment policies of the Indian Public Service Commission. That information provided a sufficient basis for the Tribunal lawfully to find that the applicant would not face discrimination in employment as alleged. The finding was not one which demonstrated legal error.
Further, in judicial review proceedings such as these, the Court does not have power to substitute its own findings of fact for those of the Tribunal. Consequently, as the matter raised in the first part of the first allegation has not been made, the second part of the allegation does not arise for consideration.
In those circumstances, the applicant has not made out his allegation that the matters referred to in the first ground of the application amounted to jurisdictional error.
Ground 2
The second ground of the application alleged that because the Tribunal did not ask the applicant any questions about the structure of Babbar Khalsa, it had no basis to state that he was unable to provide information on that subject.
As framed, the allegation might appear to have some merit. However, the Tribunal’s statement needs to be seen in context. Specifically, the whole of the relevant sentence should be cited:
However, the applicant was unable to provide any information about the organisation’s structure and activities.
That sentence, when quoted in full, makes it plain that the Tribunal was speaking, not just of Babbar Khalsa’s structure, but also of its activities. This statement is explained by the further statement later in para.59 of the Tribunal’s reasons:
The applicant was unaware that the organisation was a paramilitary group that existed since the early 1980’s and that part of its focus was to attack moderate Sikhs.
What the Tribunal was saying in the full version of the passage of which the applicant only relied on a part, was that the applicant was unaware that Babbar Khalsa was a paramilitary organisation.
That finding appears to have been based on evidence at the Tribunal’s hearing which was paraphrased in the following terms at para.44 of its reasons:
The applicant told the Tribunal that he was not involved and was unaware of such activities. He stated that the Babbar Khalsa party wanted all Sikhs to fight for their rights.
It also appears that immediately before that part of its hearing, the Tribunal had advised the applicant of country information concerning Babbar Khalsa’s nature and behaviour.
In circumstances where the applicant denied to the Tribunal that he was aware that Babbar Khalsa was a paramilitary organisation which had been accused of terrorist activities, it was open to the Tribunal to conclude that he had been unable to provide any information about its structure and activities.
For that reason, the statement relied upon by the applicant in making the second allegation in his application, does not evidence jurisdictional error on the part of the Tribunal.
Ground 3
In his address at the hearing of this application, the applicant suggested that he should have been given a second hearing before the Tribunal because, at the hearing which he had been given, he had been scared and had made mistakes.
The applicant did not point to any aspect of the Tribunal’s summary and paraphrasing of his hearing before it which would suggest that he had conducted himself in such a way that the Tribunal should have thought that fairness required that he be given an opportunity to appear before it for a second time. Specifically, the applicant did not point to any part of the Tribunal’s summary and paraphrasing of its hearing which would suggest that the Tribunal perceived or had been told that he was nervous such that a further opportunity to appear before the Tribunal should have been considered.
The applicant has not proved that fairness required the Tribunal to afford him a second opportunity to appear before it or that it erred by not providing him with such an opportunity.
Conclusion
For these reasons, the applicant has not demonstrated jurisdictional error on the part of the Tribunal and the application will be dismissed.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Date: 11 June 2013
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