SZBKC v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia|2005-10-06|Before: Stone J

REASONS FOR JUDGMENT 1 This is an appeal from a decision of a Federal Magistrate made on 20 May 2005. His Honour dismissed an application for review of a decision of the Refugee Review Tribunal ('Tribunal') made on 31 July 1995.

Background 2 The appellant, a Sikh, is a citizen of India who arrived in Australia on 1 August 1992. On 7 March 1994, the appellant applied for refugee status with the Department of Immigration, Local Government and Ethnic Affairs ('Department'). The application was rejected by a delegate of the Minister for Immigration, Local Government and Ethnic Affairs. On 21 June 1994, the appellant lodged an application for review with the Tribunal. 3 The Federal Magistrate summarised the appellant's claim for refugee status at [3] of his reasons: 'The facts upon which the applicant bases his claim are that he was a person from a rural village in the Jallandhar District of the Punjab. He graduated from University in [1977] and worked on a farm and then in a cotton mill as a clerk. He feared returning to the Punjab because of harassment and harsh treatment faced by ordinary Sikhs from both the authorities and from militant Sikhs. He stated that he had joined a militant organisation Babbar Khalsa in 1984, but he had left that around 1988. However, because his father, the head man of his village, regularly provided food and shelter to militants, the applicant had been arrested twice by police in 1989 on suspicion of having aided the militants. On the first occasion he was held for two weeks and released on the payment or a bribe. On the second occasion, he was detained towards the end of 1989 and held for three weeks and again questioned about militants. He stated that he had been beaten in custody, and asked about people seeking shelter in his village. He told the Tribunal that he had not been detained again after the second occasion in 1989, but he had been questioned several times about militant activities, the last time being in July 1992.'

The Tribunal's reasons 4 The Tribunal considered the appellant's claims for refugee status on the Convention grounds of religion and imputed political opinion. Although the Tribunal accepted that he had a subjective fear of persecution, it did note that it had difficulty in accepting as entirely credible the account given by the appellant of his experiences before his departure for Australia. The Tribunal also referred to the appellant's delay in lodging his application for refugee status with the Department. Despite these comments, the Tribunal accepted that a subjective fear existed and therefore proceeded to consider whether the appellant's fear was well-founded. 5 The Tribunal set out independent country information about India and, in particular, the Punjab in some detail. The Tribunal noted the 'dramatic improvement in conditions in the Punjab' in the years between the appellant's departure and the Tribunal's decision, that is, between 1992 and 1995. On the basis of independent information, the Tribunal found that the Indian authorities were only targeting top Sikh militants and 'those with a degree of prominence in human rights reporting'. The Tribunal found that the appellant did not fall into this category because his claims related 'to a generalised fear of detention by the police or harassment by militants which arises out of the circumstances of the Punjab region at the time of his departure'. In reaching this conclusion the Tribunal compared the claims made by the appellant in his original application for refugee status made in 1994 with those made in oral submissions at the hearing before the Tribunal. To the extent that they differed, mainly in emphasis, the Tribunal accepted the earlier claims as having been made closer in time to the events that led to the appellant leaving India. The earlier claims were more indicative of the appellant having a generalised fear arising out of the prevailing circumstances rather than because a particular political opinion had been imputed to him. 6 In a passage that was the subject of much discussion on the appeal, the Tribunal concluded: 'I find, therefore that the Applicant's claims relate to a generalised fear of detention by the police or harassment by militants which arises out of the circumstances of the Punjab region at the time of his departure. Although I accept that he was detained and questioned on two occasions in 1989, and was subsequently questioned for a couple of hours at a time on numerous other occasions, these actions by the police appear to have been associated with the security operations in the region at the time rather than to the Applicant's particular characteristics. As the Applicant has indicated in his original application, he was of an age at that time to have attracted the attention of the police. Such arbitrary action by the Punjabi police cannot be condoned and it discloses a Convention ground if detentions and beatings resulted because of the Applicant's political opinion, real or imputed.' [Emphasis added] 7 On the evidence before it, the Tribunal was not satisfied that the authorities continued to maintain an adverse interest in the appellant. In reaching this conclusion the Tribunal took into account that the appellant was able to depart India on a passport in his own name and referred to independent information indicating that if the appellant was wanted by the Indian authorities he could not have passed through the airport without detection. 8 The Tribunal therefore found that there was not a real chance that the appellant would be persecuted because of his religion or political opinion if returned to India at the time of the Tribunal's decision or in the reasonably foreseeable future. The Tribunal also noted that if the appellant 'does not wish to live in the Punjab', it was open to him to relocate to another part of India and this was not an unreasonable option given his age, employability and language skills.

proceedings in the federal magistrates court 9 On 8 September 2003, the Appellant filed an application for review in the Federal Magistrates Court. His Honour noted the significant delay of some eight years in seeking judicial review of the decision of the Tribunal. However, the Federal Magistrate stated that the first respondent did not invite him to consider the exercise of his discretion to dismiss the application on account of delay. 10 The Federal Magistrate rejected the only ground of review stated in the application before him, which was that the Tribunal failed to consider the adequacy of State protection and the failure to do so constituted jurisdictional error. The appellant has not challenged this decision. However, it appears from his Honour's reasons that, in oral submissions, the appellant also submitted that the Tribunal's finding that he would be able to relocate to other parts of India also involved jurisdictional error. His Honour also rejected this claim noting that the appellant had conceded that the Tribunal had applied the correct legal test in relation to this issue.

This appeal 11 Before considering the appellant's grounds of appeal I note that, for the reasons expressed by Branson J in SZDLR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 773 and by myself in SZDZV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 416, the Federal Magistrate was correct in determining that, for the appellant to succeed, it was necessary to show that the Tribunal had made a jurisdictional error. 12 There are four grounds of appeal in the amended notice of appeal. With the exception of a ground relating to the Tribunal's findings on relocation, none of those grounds had been put to the Federal Magistrate. Counsel for the first respondent submitted that the appellant should not be permitted to raise new grounds on the appeal. As I have formed the view that none of the grounds identified have any merit I accept that submission. 13 Despite the fact that, as indicated above, four grounds of appeal were identified in the amended notice of appeal, at the hearing of the appeal, Mr Jayawardena, who appeared for the appellant, accepted that, to the extent that they were still pressed, there was effectively only one ground of appeal. 14 The challenge to the Tribunal's decision focussed largely on the passage of the Tribunal's reasons quoted at [6] above. Mr Jayawardena submitted that the Tribunal erred in concluding that that the Appellant's claims related to 'a generalised fear of detention' rather than that he was targeted by the police and militants because of an imputed political opinion. Mr Jayawardena submitted that the Tribunal itself had contradicted itself in the last sentence of the same paragraph and had held that the police behaviour had disclosed a Convention ground. 15 A common thread in all Mr Jayawardena's submissions was that he conveniently ignored aspects of this Court's jurisdiction or elements of statements made by the Tribunal (and indeed by the High Court) that were not to his client's advantage. The latter submission ignores the word, 'if' in the last sentence of the Tribunal's comments; the Tribunal is making a conditional statement about circumstances that fail to meet the condition. There is no contradiction involved. 16 The former submission ignores the fact that, even if the Tribunal made an error of fact (which is by no means clear to me) this does not give this Court jurisdiction to interfere with the Tribunal's findings. As explained above at [5], the Tribunal reached its conclusion having considered the various claims made by the appellant in the light of the independent information it had about the circumstances prevailing in the Punjab. The findings it made were, in my view, open to it. Mr Jayawardena attempted to support his submission with reference to the well-known comments of the High Court in Craig v The State of South Australia (1995) 184 CLR 163 at 179: 'If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.' 17 This submission ignores the fact that the invalidity to which the High Court refers is consequent on the tribunal having made an error of law. Mr Jayawardena was unable to identify any error of law made by the Tribunal in this case. 18 Finally, Mr Jayawardena submitted that the Tribunal had erred in considering the appellant would be able to relocate to another part of India if he did not wish to live in the Punjab. He referred to the following paragraph in the Tribunal's reasons: '… I find that there is less than a real chance that the Applicant would be persecuted because of his religion or political opinion upon return at this time or within the reasonably foreseeable future. In the event that he does not wish to live in the Punjab, it is open to him to relocate to another part of India. In view of his age and relative employability as a university graduate previously employed in a clerical capacity; the fact that he is able to speak, read and write Punjabi and Hindi, I do not consider relocation to be an unreasonable option which is preferable to resettlement in a third country in the absence of a well-founded fear of persecution.' 19 Mr Jayawardena's complaint was that in reaching this conclusion the Tribunal failed to consider the appellant's safety in other parts of India and took into account irrelevant factors such as his education and ability to speak several languages. I do not accept this submission. The Tribunal's discussion of the appellant's claims shows that they related only to his experiences in the Punjab. That being so it was entirely reasonable for the Tribunal to consider relocation to other parts of India and to take into account factors such as the appellant's education that would assist him to settle in other areas. 20 In any event, once the Tribunal had found that the appellant's fear of persecution was not well-founded, it was not necessary for it to consider the issue of relocation. It is entirely clear that the Tribunal did not rely on its views on this issue to support its conclusion that the appellant did not meet the criteria for the grant of a protection visa. 21 I find all of the appellant's submissions to be without merit and therefore am not prepared to permit him to raise on the appeal grounds of review that were not raised before the Federal Magistrate. 22 For these reasons the appeal is dismissed. The appellant must pay the first respondent's costs. I certify that the preceding twenty two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate: Dated: 6 October 2005 Solicitor for the Appellant: Mr C Jayawardena

Counsel for the First Respondent: Ms S Kaur-Bains

Solicitor for the First Respondent: Australian Government Solicitor

Date of Hearing: 28 September 2005

Date of Judgment: 6 October 2005

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