W404/01A v Minister for Immigration and Multicultural Affairs

[2002] FCA 540

FEDERAL COURT OF AUSTRALIA

W404/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 540

Migration Act 1958 (Cth) s 476(1)

W404/01A v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
W404 of 2001

RD NICHOLSON J
3 MAY 2002
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W404 of 2001

BETWEEN:	W404/01A APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	RD NICHOLSON J
DATE OF ORDER:	3 MAY 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W404 of 2001

BETWEEN:	W404/01A APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	RD NICHOLSON J
DATE:	3 MAY 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The applicant seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 20 August 2001.  In that decision the Tribunal affirmed a decision of a delegate of the respondent not to grant to the applicant a protection (class XA) visa.  The application attracts the application of the relevant provisions of the Migration Act 1958 (Cth) (“the Act”) as they stood prior to amendment on 2 October 2001.

   Applicant’s circumstances and claims

2. The applicant is a citizen of India.  He arrived in Australia on 23 March 2001.  He was born and resided in Jammu and Kashmir, the Indian-controlled portion of the disputed region of Kashmir.  He is a Sunni Muslim.  The applicant made the following claims:

   (a)Between 1993 and 1997 he was harassed by the Indian army approximately twenty times.

   (b)His brother, who was a member of the Kashmir Liberation Front (“JKLF”), was killed by Indian armed forces in 1996.

   (c)He crossed the border into the Pakistan controlled region of Kashmir in December 1997 and remained there until December 2000.

   (d)He married a Pakistani citizen.

   (e)If he had remained in Pakistan the Inter Services Intelligence (“ISI”) would have forced him to fight in the war against the Indian army.

   (f)He cannot return to India because of his family’s political involvement and past interest in him by the Indian authorities.

   Tribunal’s findings and reasons

   Finding of persecution in Kashmir

3. The Tribunal accepted that the applicant would face a real chance of persecution for a Convention reason should he return to the Jammu and Kashmir region.  In the Tribunal’s view, the real issue for determination was whether the applicant could relocate to another area in India or whether Pakistan offered the applicant effective protection.

   Relocation within India

4. The applicant claimed that he could not relocate within India for the following reasons:

   (i)If he is to go to any part of India he will have to show Indian police his papers which indicate that he is from Jammu and Kashmir and the Indian police will investigate.

   (ii)Muslims have tried to migrate to other parts of India but they have not been able to adjust to the society because they are treated as traitors.

   (iii)There is a huge movement in Jammu and Kashmir against the Indian government and therefore it is not safe for him to go to India.

   (iv)It is not possible for Muslims to relocate within India and to seek protection from Hindus.

   (v)The Indian government is not able to control outbreaks of communal violence and does not punish perpetrators of violence against Muslims and Christians.

   (vi)If he stays in another part of India and lives there as a part of the community he will never be accepted.

5. The Tribunal came to the conclusion that it was reasonable for the applicant to relocate to another part of India.  In that regard, the Tribunal made the following findings:

   (a)On the basis of the independent evidence before it, the Tribunal did not accept that the BJP government encourages or tacitly accepts attacks by Hindus on Muslims in India.

   (b)On the basis of the independent evidence before it, the Tribunal did not accept that the Indian government is unwilling to prosecute Hindus responsible for attacks on Muslims.

   (c)The fact that India houses Kashmiri migrant families and provides them with assistance (cash relief, dry rations, temporary accommodation) indicates that the Indian government does not regard all Kashmiris as traitors or as being against the government.

   (d)It is reasonable in all the circumstances to expect the applicant to relocate from Jammu and Kashmir to one of the Muslim communities elsewhere in India.  The applicant is literate and has skills as a farm labourer (those skills enabling him to relocate successfully to Azad Kashmir).  Further, independent evidence indicated that there were Muslim communities in many parts of India and there were no problems for Muslims relocating within India.

   (e)The Tribunal did not accept that the applicant is perceived as a Kashmiri separatist by reason of his brother’s involvement in the JKLF, nor that he has a well-founded fear of persecution by reason of any political opinion imputed to him as a result of his brother’s involvement in the JKLF if he returns to India now or in the reasonably foreseeable future.  First, it was the applicant’s own evidence that he was detained because of the perception that every young Kashmiri living in the hilly areas was a traitor rather than because of the perception of the applicant’s political opinions based on his brother’s involvement in the JKLF.  Secondly, he himself was never a member of a Kashmiri separatist group.

   Effective protection in Pakistan

6. In relation to the possibility of finding effective protection in Pakistan the applicant made the following claims:

   (a)He can go to any place in Pakistan but will either be found by the ISI and sent back to Azad Kashmir or, if it was perceived he had disadvantaged the ISI in some way, the ISI would “finish him off”.

   (b)Being Kashmiri in itself is imputed as a political threat.

7. Although not strictly necessary, the Tribunal then considered whether Pakistan was able to offer the applicant effective protection.  The Tribunal concluded that the applicant would have effective protection in Pakistan for the following reasons:

   (1)There was not a real chance that he would be forcibly recruited by the ISI.  In this respect the Tribunal noted the independent evidence that militant groups sponsored by Pakistan have no difficulty in recruiting Islamic fanatics and noted that the independent evidence was to be preferred to the applicant’s evidence to the extent of any inconsistencies.

   (2)There was no independent evidence before the Tribunal that Kashmiris were perceived as a political threat by the government in Pakistan.

   (3)The applicant is the husband of a citizen of Pakistan.

   (4)There is not a real chance that Pakistan would return the applicant to India.

   Grounds of review

8. The applicant appeared unrepresented. Understandably his application did not contain grounds in an appropriate form identifying an error of law. He sought firstly that the case be resubmitted. Secondly, restraint on his removal. Thirdly, he asserted he could not be returned to India and fourthly he could not be returned to Pakistan. It is clear these do not raise grounds of review within the jurisdiction of the Court pursuant to s 476(1) of the Act.

9. Directions were made on 5 October 2001 requiring the applicant to give particulars of his grounds of review.  These were received in a written submission on 22 October 2001 and formed the basis of matters addressed at the hearing.  I agree with the submissions for the respondent that the matters canvassed in oral submissions by the applicant were the same as those matters raised in the written particularisations save in two additional respects to which reference will be made. 

10. Fundamentally the applicant, understandably, found it difficult to comprehend the limited jurisdiction of the Court and that it could not re-hear the merits of the matters within the jurisdiction of the Tribunal.  Much of his submission had the character of seeking fresh merits review from the Court and consequently could not assist him.

    Applicant’s contentions

11. The first matter the applicant raised was based on reference to two country reports relating to Kashmir.  He submitted that as the Tribunal accepted the reports it should accept his “problems” and the powers of the security forces.  These are clearly matters seeking further merits review from this Court and that function does not lie in its jurisdiction. 

12. Secondly, the applicant raised the point that in reaching its conclusion that Muslims could relocate to Muslim communities elsewhere in India, the Tribunal had failed to consider the particular position of the Jammu and Kashmiri Muslim who would, on the applicant’s submission, be considered immediately “as a traitor”.  This was a claim which he had made at the hearing:  see reasons of the Tribunal, p 8; CB88.  It was repeated in the submission dated 14 August 2001 by the applicant’s then representative:  Tribunal reasons p 12; CB92 – 3.  The finding of the Tribunal to the effect that generally speaking there would be no problems for Muslims relocating within India was based on a DFAT cable and DFAT country information report:  Tribunal reasons p 9; CB89 and 16; CB96.  The Tribunal therefore had clearly before it the submission that Kashmiri Muslims may be more vulnerable than other Muslims and concluded, as it did, that relocation was possible.

13. Even if it was the case that the country information relied upon by the Tribunal did not specifically extend to the case of Kashmiri Muslims, there are two reasons why that would not assist the applicant in attaining review of the Tribunal’s reasons.  The first is the Tribunal reached the conclusion on evidence before it that the conduct by communities in India towards Muslims did not constitute persecution.  Secondly, even if some error affected that conclusion, there remained the option of effective protection in Pakistan. 

14. Thirdly, the applicant sought to reargue the conclusion of the Tribunal that the BJP government did not act in a persecutory way and extended the same degree of protection to any of its nationals.  That is inviting the Court to remake the conclusion of fact reached by the Tribunal.  The Tribunal was well aware of the long history of communal outbreaks in India.  It reached its conclusion in the face of that awareness. 

15. Fourthly, the applicant turned to the finding of the Tribunal relating to the presence of 19,000 Kashmiri migrant families living in various temporary camps in New Delhi.  He said that he had told the Tribunal these were principally Hindu and Sikh persons and very few Muslims.  He said the Tribunal was in error in thinking that it would be reasonable for him to live even on a temporary basis in such accommodation. 

16. The reason the Tribunal turned to that evidence was to support its conclusion that the Indian government does not regard all Kashmiris as traitors or as being against the government.  It specifically found that it would not be reasonable to expect the applicant to live in such accommodation on a long-term basis.  It was therefore entirely peripheral to the reasoning of the Tribunal.  The principal reasoning was that there are Muslim communities in many parts of India and generally speaking there would be no problems for Muslims (clearly including by implication from the context, Kashmiri Muslims) relocating within India:  see Tribunal reasons p 18; CB98. 

17. Fifthly, the applicant raised the issue of whether it should have been accepted that he was a member of the Kashmiri separatist group because he had been detained, interrogated and let go about twenty times and because of his brother.  The applicant did not previously claim to be such a member.  His claims of detention, interrogation and release were accepted by the Tribunal but not for Convention based reasons.  This is a further attempt to have this Court enter into the merits of the Tribunal’s reasoning. 

18. Sixthly, the applicant said the Tribunal had failed to consider the position of his wife as a Pakistani and the difficulty of him returning to Pakistan.  The issues raised here were either not raised before the Tribunal or invite this Court to indulge in merits review. 

19. Seventhly, the applicant asserted that he had no legal right of entry to Pakistan, another issue of merits review.

20. The eighth and ninth points relate to the role of the Pakistan security forces in forcing people to fight against the Indian army and in Kashmir, issues dealt with by the Tribunal and further consideration of which on the basis proposed by the applicant lies beyond the jurisdiction of this Court.

21. The additional two matters canvassed at the oral hearing, namely the government unwillingness to halt violence and the special position of Kashmiri Muslims, have been encompassed in addressing the above points. 

    Submissions following hearing

22. This matter was listed for judgment on 5 April 2002.  On 2 April 2002 submissions from the applicant dated 31 March 2002 were faxed to the Court.  They claimed that the applicant had made a lot of mistakes at the Federal Court hearing; that his interpreter could not translate properly and that he was “physiologically depressed”.  The following specific matters were raised in the submission:

    (1)On the question of relocation to another part of India, the majority of Hindus in India believed that Muslims of Kashmir were their enemy and were traitors.

    (2)The people living in the camps near Delhi were most of the Hindu families who escaped from Kashmir. 

    (3)The Indian government could not provide protection.

    (4)The ISI in Pakistan forcibly send people who cross the border from Indian controlled Kashmir to Arzad-Kashmir because of their knowledge of the local language, geographical position and location of Indian army posts. 

    (5)The Tribunal had not indicated which place in India was safe for him.  Furthermore, the Indian army had killed his brother because he was a political leader of the JKLF and they considered the applicant “as a member of political family who is against the Indian government”.  He said that was why he had been arrested more than twenty times and tortured. 

    (6)He requested that his Tribunal hearing tape be listened to because the Tribunal member “didn’t mention many things in his decision and he ignored me”. 

23. These additional submissions were addressed on behalf of the respondent in supplementary submissions.  Those submissions are reflected in the course of the following reasoning:

    Re (1)This item seeks impermissibly to attack the merits of the Tribunal decision.  Furthermore, the Tribunal chose to place reliance on the advice of DFAT in preference to the evidence of the applicant to the extent of any inconsistency.  This matter has been dealt with above and was raised at the hearing. 

    Re (2)No obligation rests on the Tribunal to refer to any specific items of evidence given by the applicant.  Furthermore, statements by the applicant about the camps predominantly housing escaped Hindu families is not inconsistent with the applicant being able to avail himself of the facilities offered at those camps.  This matter has also been dealt with arising from the hearing. 

    Re (3)The applicable law does not require a country to be able to guarantee the safety of its citizens and residents.  It was sufficient that in this instance there was no independent evidence suggesting that Kashmiri Muslims are afforded a lower level of protection than other Indian citizens and residents.  The matter has in any event been dealt with in reasons arising from the hearing.

    Re (4)This again seeks to attack the merits of the Tribunal’s decision.  The findings made by the Tribunal were consistent with the evidence before it and there was no error in it preferring independent country information to the evidence given by the applicant. 

    Re (5)There was no obligation on the Tribunal to articulate with a higher degree of specificity which places in India would be safe for the applicant to live or travel. 

    The Tribunal did not accept the applicant’s evidence that he is perceived as a Kashmiri separatist because of his brother’s involvement in the JKLF.  He had never claimed to be a member of a “political family”.  There was no need for the Tribunal to specifically consider whether the applicant would be persecuted as a result of his “political family”. 

    Re (6)In relation to the applicant’s request for the Court to listen to the tape of the Tribunal hearing, it is apparent that the applicant has particularised his complaints carefully.  In that respect he has discharged the onus which is upon him.  It was not for the Tribunal nor is it for the Court to make the applicant’s case for him, although care must be taken due to the absence of representation for him.  Here, the focus of the concerns of the applicant have been articulated with specificity.  What the applicant says is that the Tribunal member “didn’t mention many things in his decision and he ignored me”.  That submission takes its colour from the specific submissions.  It does not give rise to an obligation to analyse the Tribunal hearing tape.

24. On 16 April 2002 the applicant forwarded to the Court various items in the form of anti-Muslim circulars issued by the Indian union and dated 8 January 2000; 1 March 2000; 13 July 2000; and a further article apparently printed off the internet from a page dealing with “the truth about Kashmir”.  If these were not before the Tribunal they cannot be the source of any error by it.  If they were before the Tribunal, they were pieces of evidence in relation to which no specific obligation arose for the Tribunal to make reference to them.  The foundation of the Tribunal’s reasoning in independent information from DFAT has already been made apparent. 

25. Further submissions were filed on 17 April 2002 on behalf of the applicant by a person whom the applicant claimed to be his “lawyer”.  The primary submission was made in these that the constitutional situation of the Jammu and Kashmir area was such that it cannot be safely concluded that the people of Jammu and Kashmir are either citizens of India or Pakistan.  Rather, they are entitled to be treated as Kashmiri.  This was not a claim made by the applicant before the Tribunal and it cannot give rise to error of law by it. 

26. These latter submissions also seek to attack the merits of the Tribunal’s conclusion that the country of usual residence will be able to provide protection. 

27. Additionally, the merits of the Tribunal’s conclusions concerning the camps set up in New Delhi were further addressed.  This matter has been dealt with above. 

28. The claim was also made in the latter submissions that the applicant is from a race under persecution in both India and Pakistan so that the question of protection becomes of paramount importance.  However, the Tribunal made positive findings of fact to which it was entitled that the applicant did not have a well-founded fear of persecution in relation to India or in relation to Pakistan. 

    Conclusion

29. None of the matters raised by the applicant provide a basis for this Court invoking any of its limited jurisdiction pursuant to s 476(1) of the Act. Accordingly, the application must be dismissed.

30. The reasons of this Court are distributed throughout the world on the Internet and, exercising appropriate caution, the Court has not identified the applicant in the title to the proceeding or in the reasons.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson.

Associate:

Dated:            3 May 2002

The applicant represented himself
Counsel for the Respondent:	Mr AA Jenshel
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	28 March 2002
Date of final submissions:	17 April 2002
Date of Judgment:	3 May 2002