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[2000] FCA 1373
Federal Court of Australia
2000-08-14
Heerey J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 This application for review of a decision of the Refugee Review Tribunal has as its primary base the contention that there was a failure by the Tribunal to set out the findings on any material questions of fact as required by section 430(1)(c) of the Migration Act with the consequence that there has been a failure to follow a procedure required by the Act which is a ground for review by the court under section 476(1)(a): see Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845. 2 The applicant is a citizen of India. He is a Muslim who was brought up in Kashmir until he went to New Delhi for university studies. He there completed a degree in civil engineering. He arrived in Australia in February 1997 on a student visa. He claimed that in early 1990 he witnessed a massacre and that a teacher subsequently influenced him into joining a militant Kashmiri group known as Al‑Jahid. He spent four months in a training camp with Al-Jahid during which time he handled guns and grenades. He engaged in one trek to the border area in a party of about a dozen people. He left Al-Jahid after this period and stayed with his sister so as to avoid danger. Soon afterwards his family sent him to New Delhi. After leaving Kashmir he only returned there occasionally, again staying at his sister's home. 3 He claimed that his brother was kidnapped by militants for a few hours in 1992 or 1993. He said that although he was not engaged in any political activity while in New Delhi he was well known as a former Kashmiri freedom fighter. He was never arrested while in New Delhi, although on one occasion he was assaulted by students who knew of his association with militants. He said that he often associated with a cousin who had a high profile as general secretary of the Indian Youth Congress and also with a prominent women's group. Also he became a close friend of a Hindu member of parliament. The decision of the Tribunal reported the following claim: "He claims that members of Al-Jahid who had sought him before he fled to New Delhi demonstrated a renewed interest in him some years later, probably out of concern that his associations in New Delhi with persons with a high political profile indicated that he was operating as a government agent. He said that militants went to his father's house in 1995 or 1996 and made threats against the applicant's life."
He also said that his father "developed some heart disease as well" because of the threats. This incident is said to have happened in Srinagar in Kashmir, not in New Delhi.
The Tribunal's Decision 4 The Tribunal did not accept the applicant's claim that he trained with Al-Jahid in 1990. In reaching this finding, the Tribunal noted that the applicant was unable to nominate any particular policies of the group, apart from saying it supported a plebiscite. The Tribunal said that although the applicant claimed to have had a close involvement with Al-Jahid for some time as an activist he was unable to indicate any precise training he undertook. The applicant said that Al-Jahid was a branch of the larger party and wrongly named that party until prompted by the Tribunal. The Tribunal concluded: "In view of the applicant's lack of knowledge and detail about Al‑Jahid, the Tribunal does not find credible his claim that he was associated with that group." 5 Amongst other things, the Tribunal noted the failure of the authorities to take any action against him, although he had family in Kashmir with whom he occasionally stayed, and was enrolled in a course of study in New Delhi where he claimed to have been well-known as a supporter of Kashmiri rights. In particular, he did not claim to have encountered any harm from the authorities while residing in New Delhi. The Tribunal placed reliance on the fact that the applicant left India legally on his own passport which indicated that he was not of any interest to the authorities. 6 On the occasion when he claimed to have been assaulted by political opponents he did not report the matter to police. The Tribunal then said: "The Tribunal accepts that the applicant has a cousin who has a high profile in Indian politics and that he also befriended a Hindu member of parliament. During the course of his application he has indicated that such associations offer added protection against harm from the authorities. He claims, however, that such an association with prominent people might have prompted members of Al-Jahid to make threats against him and family members in the mid-1990s out of fear that he was disloyal to their cause. The Tribunal has found that the applicant had no association with Al-Jahid. It also notes information from the Department of Foreign Affairs and Trade (DFAT) in ND6495 of 14 February 1996 that: "…On the question of relocation, as we have noted previously - apart from some special cases - there are no general problems, for applicants with concerns about living in one region, living elsewhere in India. There are virtually no reports of Kashmir-based militants operating outside Jammu and Kashmir…" Considering the applicant's lack of association with Kashmiri militant groups, the Tribunal finds that he does not face a real chance of persecution for a Convention reason at the hands of Kashmiri militants in any part of India. In view of aforementioned country information any chance of such harm in areas away from Kashmir, such as New Delhi where the applicant has previously resided, is so remote as to be virtually non-existent. In view of the applicant's former extended period of residence in New Delhi, and considering factors such as his age and level of education, the tribunal finds that it is reasonable to expect him to again relocate to an area such as New Delhi if he should have any fear for his well-being in Kashmir." 7 The Tribunal then went on to discuss United States country reports on human rights practices in relation to India and Kashmir. The Tribunal concluded: "In light of the applicant's own history and profile, and his capacity to resume residence in New Delhi or some other location, well away from areas of occasional or intense conflict, the Tribunal finds that he does not face a real chance of persecution for any convention reasons." Material Findings of Fact 8 Counsel for the applicant argued that there was a failure to make a material finding of fact in relation to the occasion when militants threatened the applicant's father. This incident was, it was said, "just left hanging". It was also said that it was not legitimate to make a final finding, namely that the applicant was not a member of Al-Jahid, and then work back to reject evidence that might have conflicted with that finding. 9 Counsel for the Minister had a number of answers to that contention. The principal one, which I accept, is that on a fair reading of the reasons it is clear that the Tribunal is saying that it did not accept that the incident involving threats to the applicant's father occurred. 10 The Tribunal did not overlook this issue. It is included in a recital of the essential elements of the applicant's case and later in the passage already quoted which is in a part of the reasons headed "Discussion of evidence and findings". The Tribunal again deals specifically with this incident and some of the circumstances that relate to it, for example, that the applicant became a friend of the Hindu member of parliament. Immediately following the sentence which records the applicant's claim about the threats to his father, the Tribunal says: "The Tribunal has found that the applicant had no association with Al‑Jahid." Since the applicant's association with Al-Jahid was an essential element of the claimed incident involving his father, once that association is rejected the meaning conveyed is that the Tribunal is not accepting that the threat was made. A similar point was dealt with by Gleeson CJ and McHugh J in Abebe v Commonwealth of Australia (1999) 162 ALR 1 at par 85. In that case an applicant had claimed to be arrested and raped while in detention but the Tribunal had not accepted the evidence of arrest. Then the Tribunal was, in the words of their Honours, "…not then required to act on her allegations of detention and rape, allegations which were dependent on her claim of being arrested and taken into custody for reasons of political opinion." 11 Referring to what was said to be the Tribunal's "duty to engage in speculation", counsel for the applicant relied on what was said by the Full Court in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at par 60. However in the present case the reasons of the Tribunal do not, either in their expression or the reasoning, indicate any significant doubt about the conclusion it came to in rejecting the fundamental basis of the applicant's claim that he had been a member of Al-Jahid.
Burden of Proof 12 Counsel for the applicant argued that there was an incorrect interpretation of the applicable law in that the Tribunal imposed too high a burden of proof. It made an adverse finding on his credit on the question of membership of Al-Jahid because of his lack of knowledge and detail. In fact, as counsel contended, there was considerable detail provided by the applicant including the fact that he joined the organisation after being influenced by a teacher and that he spent a particular time in it, namely four months. He answered as much as he was asked by the Tribunal as to what he did while in the camp. His knowledge about the objectives of Al-Jahid, namely accession of Kashmir to Pakistan, showed an adequate level of political knowledge for somebody of his age. 13 Were this a review on the merits or an appeal there would be some force in those criticisms. But the arguments do not go beyond questions of fact which are exclusively within the province of the Tribunal. 14 Finally, there is the finding of the Tribunal that the evidence showed that, whatever his position in Kashmir, the applicant would not be at risk of persecution elsewhere in India. There was reference to evidence to support that conclusion. There was no attack on the rationality of the Tribunal's conclusion on that score. That would provide a separate ground for this Court declining to interfere with the decision, even if there were found to be a legal error in respect of the other matters argued. The application will be dismissed with costs, including reserved costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.
Solicitor for the Respondent: Australian Government Solicitor
Naqati
Minister for Immigration & Multicultural Affairs