Yarlagadda v Minister for Immigration & Multicultural Affairs

[2001] FCA 215

FEDERAL COURT OF AUSTRALIA

Yarlagadda v Minister for Immigration & Multicultural Affairs [2001] FCA 215

MIGRATION – application for a protection visa – review of decision of Refugee Review Tribunal – whether the Refugee Review Tribunal failed to consider relevant information in circumstances where the Tribunal had made adverse findings on credibility with respect to the substantial claim of involvement with the Peoples War Group

Migration Act 1958 (Cth)

Abebe v Commonwealth (1999) 162 ALR 1 applied

RAMA DEVI YARLAGADDA v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1091 OF 2000

HELY J
21 MARCH 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1091 OF 2000

BETWEEN:	RAMA DEVI YARLAGADDA APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	21 MARCH 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application for review be dismissed with costs.

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	N 1091 OF 2000

BETWEEN:	RAMA DEVI YARLAGADDA APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	HELY J
DATE:	21 MARCH 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of India who arrived in Australia on a visitor’s visa on 8 May 1995.  She applied for a protection visa on 4 July 1997, over two years after her arrival, on the ground that she feared persecution should she return to India because of her political activity.  The Minister’s delegate refused the application and this decision was affirmed by the Refugee Review Tribunal (“RRT”) on 31 August 2000.  The applicant seeks an order of review of that decision.

2. The applicant claimed before RRT that she was a leader and activist of the Radical Students Union (“RSU”) at college level from 1979-1984.  She claimed that the RSU was the youth wing of the Peoples War Group (“PWG”), apparently also known as The Communist Party of India – Marxist Leninist.  She claimed that her involvement with those organisations ceased in 1991, but the problems which arose while she was a member of those organisations continued well after that date.  Those problems included frequent arrests, torture and imprisonment at the hands of the police, as well as the laying of false charges against her.

3. RRT accepted that the applicant may have had some minor involvement with the RSU while she was a student.  RRT said that it was “generously willing to accept” that:

   -the applicant may have been involved in student protests while she was at university and that she was involved in assisting peasants in surrounding areas when she was a student, possibly through RSU; and

   -the applicant may have been rounded up by the police on a few occasions as a result of RSU activities whilst she was a young undergraduate student, but the police had no continuing interest in her because she was always released without charge.

   The RRT did not, however, accept the remainder of her claims.

4. RRT did not find the applicant to be a credible witness, and except to the extent already indicated, did not accept that her claims were credible.  On reviewing the applicant’s claims, its conclusion was that “the bulk of the applicant’s claims are concocted and cannot be relied upon”.  RRT found that the applicant “is of no continuing interest to the police anywhere in India” and was satisfied that if she were to return to India she would be able “to find employment and support herself independently”, that is independently of her husband.

5. RRT noted the delay in seeking a protection visa, and that when first interviewed by her Department of Immigration & Multicultural Affairs (“DIMA”) case officer, the applicant indicated that she did not wish to return to India because of problems with her husband.  It was only after she met with the migration agent who prepared her application for a protection visa that she made claims relating to her involvement with RSU.

6. I do not propose to recite all of the claims which were made by the applicant, and rejected by RRT.  They are dealt with in RRT’s reasons for decision.  The extent of the failure of the applicant to persuade RRT as to the merits of her case is reflected in the following finding at page 148-149 of the Relevant Documents (“RD”):

   “... the Tribunal finds that the applicant was not ever implicated in any violent activities of the PWG or any of its associated organisations at any time, nor that she has any court cases pending against her in relation to these charges.  It follows also that the Tribunal does not accept that the applicant was tortured in any way by police when detained on these alleged charges.  The Tribunal finds that the applicant’s evidence in relation to her alleged involvement with the PWG and her being implicated in violent PWG/RSU activities has been concocted ...”

7. The applicant’s written submissions in support of the order of review largely invite the Court to embark upon an impermissible re-determination of the merits of the applicant’s claim. The assessment of the merits of the applicant’s case is a matter for RRT, rather than for this Court. Those written submissions also seek to make a case that the applicant was badly served by the migration agent retained to assist her in the prosecution of her application for a protection visa. The applicant sought to expand upon those complaints in a statutory declaration made on 18 January 2001. I refused to receive that statutory declaration into evidence because the conduct of the migration agent has no bearing on the question of whether the applicant has made out one of the grounds of review specified in s 476 of the Migration Act 1958 (Cth) (“the Act”).

8. The Amended Application for an Order of Review filed on 18 January 2001 asserts that in determining the applicant’s claim to have a well founded fear of persecution if she was returned to India, RRT failed to consider all substantial claims and all relevant information in support of them, and failed to deal properly, or at all, with the material before it.  The subsequent paragraphs in the Amended Application constitute the particularisation of that general charge.  I will deal with them seriatim.

   2.   The Tribunal failed to take into account all of the applicant’s scars in the legs and hands of the applicant received as a result of the assault by the police during interrogation.

9. There is no reference in RRT’s decision to scars on the legs and hands of the applicant.  Nor is there anything to which my attention was directed in the relevant documents which bears upon that topic.  The solicitor for the applicant, Mr Krishnar, said that information in relation to this matter was “in the tapes”, but he did not seek to put the tapes or any transcription of them before me.  Nor did he provide any response to my question as to how, in those circumstances, I could take cognisance of material allegedly put before RRT upon that topic, when the evidence did not establish what that material was.  In any event, RRT did not accept that the applicant was tortured in any way by police, and it did not accept her claim that she was continually harassed by the police.  If there are any scars on the legs or hands of the applicant, RRT has at least implicitly rejected any contention that they resulted from assaults by the police during interrogation.

   3.   The Tribunal failed to take into account of the fact that the applicant was raped in the presence of her husband who was unable to cope with the harassment by the police and in order to safe (sic) his skin turned into a police informer who exaggerated the situation.

10. At RD 139 RRT addressed this question.  It said:

    “The applicant claims that because of domestic violence and police torture she left her husband.  She claims that the police continued to harass her husband.  Her husband turned police informer and gave false information about the applicant to the police.  The applicant claims that in 1993 the police took her to the local police station and started beating her and asking her about the PWG leaders.  She claims that the police raped her in the cells in front of her husband.  The applicant claims that she was very upset and lodged a complaint with APUDR (Andhra Pradesh Peoples Union for Domestic Rights).”

11. RRT does not make any specific finding in relation to the rape.  However, RRT did find that except in minor and immaterial respects, the applicant’s claims were a concoction which could not be relied upon.  Specifically, RRT did not accept that the applicant was tortured in any way by police, nor that she was continually harassed by the police or that she was of any interest to the police.  In the light of those findings, it was not incumbent upon RRT to deal separately and specifically with the applicant’s claim that she had been raped by the police: Abebe v Commonwealth (1999) 162 ALR 1, 26.

    4.   The Tribunal failed to make findings about the applicant’s claim to have a well founded fear of persecution should she be sent back to India in light of the various charges hanging over her head including murder all of them falsely levied against the applicant in an attempt by the police to extract information of those members of the People War Group who are mostly underground and are not accessible to the police.

    5.   The Tribunal failed to take into account that the charges are hanging over the applicant’s head for far too long a period in themselves suggest that the police have primarily designed them to harass the applicant and persecute her until such time she comes out with answers that can help the police in their investigation.

12. It is convenient to deal with these grounds together.  Neither of them was developed by the applicant’s solicitor during the course of oral argument.  At RD 147 RRT noted the applicant’s claim that as a result of her involvement with the PWG, she was falsely accused on a number of occasions of involvement in violent activities.  RRT found that the applicant did not have the involvement with PWG or any of its associated organisations which she claimed.  It necessarily follows that it did not accept that she was falsely accused, on a number of occasions, of involvement in violent activities in consequence of the involvement with PWG.  RRT specifically found that it was implausible that the applicant would have been accused of involvement in violent activities.

13. At RD 147 RRT referred to the fact that the applicant claimed to have been arrested, and still to be facing pending court cases, in relation to the bombing of a police station in 1984; the killing of a landlord in Tamil Nadu in late 1986 or early 1987; the bombing of a police station and the death of a policeman in 1989; and the killing of a policeman in 1991.

14. RRT did not accept that the applicant would be implicated in these extremely significant activities for the flimsy reasons given by her, nor did it accept that the applicant would have been released whilst these charges were pending if in truth they had been levied against her.  RRT did not accept that the applicant would have been able to depart India on four occasions, and re-enter on three occasions without being detected if she was facing charges relating to terrorism or murder.

15. It is simply wrong to assert that RRT failed to take into account or state its findings on these claims.

    6.   The Tribunal failed to take into account that the applicant indeed relocated in another university in Tamil Nadu to continue her studies but was unable to detach from RSU/PWG as she was again invited to help the said organisations as she spoke languages which were helpful.

16. This complaint failed to come to grips with RRT’s basic finding that except to the extent of some minor involvement with RSU while she was a student, the applicant did not have the involvement with PWG/RSU which she claimed.

17. Again, this complaint was not the subject of elaboration during oral submissions.  At RD 149 RRT made the following finding upon this topic:

    “The applicant also claimed to have been arrested in 1988 when she was in Tamil Nadu.  She claims that she had met up with PWG members in Tamil Nadu whilst studying there.  She claims that as a result of this she was arrested by ‘Q Branch’, was photographed and fingerprinted and then warned to leave the State.  The Tribunal does not accept that this claim is credible as the Tribunal does not accept that the applicant was ever involved with PWG.”

18. In oral submissions Mr Krishnar contended that RRT had made findings on the issue of relocation adverse to the applicant, which failed to take into account that it was not reasonable for the applicant to relocate anywhere within India, as her persecutors are the police who, by their control of ration cards, would uncover the applicant’s past.  At RD 48 the applicant put her case squarely upon the basis that if she ever returned to India, she would be killed by the Indian police.

19. RRT did not address the issue of relocation.  There was no occasion for it to do so, as the issue would only arise if the applicant was exposed to a risk of persecution in a part of India, in which case it would be material to enquire whether it was reasonable for her to relocate elsewhere within that country.

20. The problem for the applicant is that RRT did not accept that the police were her persecutors, and it found that the applicant is of no continuing interest to the police “anywhere in India”.

21. Accordingly, neither this ground, nor the oral submissions put on the issue of relocation, are made out.

    7.   The Tribunal failed to make findings about whether the applicant in those circumstances could avail himself (sic) of the protection of the Indian police authorities, or of access to a legal system which could provide a just means by which she could enforce her legal rights in relation to the violent crimes i.e. rape and assault, and be protected from persecution in her home town and in Tamil Nadu where the applicant tried to relocate.

22. The premises on which this complaint is based are not made out.

    8.   In fact there was no review before the Tribunal as the Migration agent who had the conduct of the matter failed, neglected and or omitted to discharge his duties as that of a reasonable migration agent would do and or required to do or comply under their code of conduct – Migration Agents Registration Authority (MARA).

23. As I have already indicated, in my view any dereliction of duty on the part of the migration agent (assuming that it occurred) has nothing to do with the issue which I have to decide, namely whether one of the grounds referred to in s 476 of the Act has been made out.

    General

24. During the course of submissions Mr Krishnar observed, correctly, that the ultimate issue which RRT had to decide is whether the applicant has a well-founded fear of persecution upon a Convention ground if she were to return to India.  There may be cases in which a Tribunal could or should be satisfied as to that question even though it did not accept the applicant as a witness of truth.  However, Mr Krishnar did not put any submissions to me as to why it was that RRT should have been so satisfied in the circumstances of the present case, where it dismissed the applicant’s substantial claims as concoctions.

25. During the course of his submissions, Mr Krishnar contended from time to time that RRT failed to realise various matters, or did not appreciate that what the applicant said about various matters was the truth.  Submissions to that effect impermissibly invite a merits review of RRT’s decision.

26. The application for review fails and should be dismissed with costs.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:             21 March 2001

Solicitor for the Applicant:	S T Krishnar
Counsel for the Respondent:	S McNaughton
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	6 March 2001
Date of Judgment:	21 March 2001