SZFYC v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia|2005-12-13|Before: Burchett J, Bennett J

Background 1 The appellant, a citizen of India from the State of Uttar Pradesh, arrived in Australia on 24 February 1996. He applied for a visa on 22 March 1996. The delegate of the first respondent refused that application on 24 May 1997 and the appellant applied to the Refugee Review Tribunal for review on 5 June 1997. By its decision of 4 August 1998 the Tribunal affirmed the decision not to grant a visa.

The decision of the Tribunal 2 The Tribunal recited the matters set out in the statement in support of the appellant's visa application. The Tribunal records that the appellant confirmed this summary as correct at the hearing and provided additional information about events after he left his home state and answered questions about relocation. 3 The appellant claimed to fear persecution in India. He claimed to have been forced to assist Sikh "Freedom Fighters" on fear of his life and to have been arrested and mistreated by the police in 1995 and obliged to inform on the Freedom Fighters. He claimed to have moved from his village to a temple in New Delhi in 1995 but said that he could not relocate there as terrorists had been able to assassinate more prominent figures than the appellant and he would not be safe. 4 In particular, the Tribunal noted that the appellant 'states that he himself is not a political activist'. This accords with the general tenor of his claim and with his written statement in which he said that he never followed any political party and had never had any political connections. 5 The Tribunal's findings continued: 'The Tribunal finds that the [appellant] is being threatened by both parties for the purposes of extortion: by Sikh terrorists for food and money, and by the police for information. The Tribunal finds that such acts of attempted extortion are not based on the race, political opinion nor membership of a particular social group, of the [appellant], but rather on the fact that he was perceived to possess something desired by those extorting him. As was observed by Burchett J, with regard to extortion for money: 'Plainly, extortionists are not implementing a policy; they are simply extracting money from a suitable victim. Their forays are disinterestedly individual'. (Ram v MIEA & Anor (1995) 57 FCR 565 at 569) The Tribunal finds that the acts of extortion directed against the [appellant] were not for a convention reason.' 6 The Tribunal appears to have accepted the appellant's claims but found he had not suffered Convention based harm in the past, as both the police and the "Freedom Fighters" were motivated by the appellant's possession of something they wanted; that is by a personal consideration, rather than any Convention reason (Ram v Minister for Immigration & Ethnic Affairs & Anor (1995) 57 FCR 565 at 569; Unal v Minister for Immigration & Multicultural Affairs [1999] FCA 750). 7 The Tribunal set out country information in some detail, including a DFAT cable from New Delhi of 8 May 1996 reporting 'wholesale political resolution of the separatist problems in the Punjab' and containing an observation that 'we would not expect relocation in other areas of India would be present problems for Punjabis'. The Tribunal concluded that Sikh activism had declined significantly by the time the appellant left for Australia but that, if he felt that he was in any danger, he could relocate within India, including New Delhi to which he had relocated prior to leaving for Australia. In the light of the country information, the Tribunal did not accept as plausible his fear that 'an ordinary person such as himself' faces, taking into account the assassination of the former Chief Minister of the Punjab.

The proceedings in the Federal Magistrates Court 8 The appellant joined the Muin and Lieclass actions; Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601. His proceedings were dismissed by Emmett J on 20 February 2004. He did not lodge an application in the Federal Magistrates Court pursuant to the Judiciary Act 1903 (Cth) until 21 March 2005, with an amended application on 24 May 2005. 9 The amended application before the Federal Magistrate raised an unparticularised error of law in the application of s 417(1) of the Migration Act 1958 (Cth)('the Act'). A further ground was an alleged failure by the Tribunal to come to the conclusion of well-founded fear based upon the factual material submitted by the appellant and accepted by the Tribunal. As his Honour observed at [8], it is difficult to deal with the first in the absence of particulars and the second appears to be seeking impermissible merits review. 10 The conclusions of the Federal Magistrate as to the matters raised, apparently at the hearing, are set out at [6] and [7]: '6. Although, it may be possible to debate whether a finding that the extortion to which the applicant was subjected and which the Tribunal did not deny, had constituted an error of law or an error of fact in so far as it was classified as not a "Convention reason" it was not necessary for me to opine. This is because the Tribunal has indicated in what was described by the Federal Court in VAF v Minister for Immigration (2004) 206 ALR 471 as the integral part of its reason for decision the fact that the violence which existed in the Punjab had declined considerably even by the time the applicant had left India. For that reason the Tribunal considered that he was no longer a person who had a well-founded fear. Additionally, the Tribunal found that the applicant could relocate. 7. These findings by the Tribunal, based as they are upon independent country information that was not impugned by the applicant, do not have any of the hallmarks of jurisdictional error. In reality the applicant clearly failed to persuade the Tribunal that he fell within the Convention definition. 11 His Honour dismissed the application. Accordingly, he did not consider the first respondent's submission that, if there were error on the part of the Tribunal, it should be refused in the exercise of the Court's discretion because of the appellant's delay in bringing the application, more than a year after the dismissal of the class action proceedings.

The proceedings in the Federal Court 12 The amended notice of appeal and written submissions of the appellant filed on 24 November 2005 raise a number of grounds not the subject of the application to the Federal Magistrate. In some instances the particulars provided for one ground fall more appropriately under another heading. I will consider the substance of the matters raised. 13 The appellant appeared in person, assisted by an interpreter. I asked the appellant for assistance in respect of the matters in the above documents. He said, in effect, that he could not be expected to know what was in them as they were drafted by another person and not explained to him. He could not explain why parts of the submissions raised matters that could not apply to him, such as reference to a "previously constituted Tribunal". He was unable to assist, other than to assert that, if the Tribunal had understood his claims, it would have granted him a visa.

The Tribunal erred in finding that the acts complained of did not amount to persecution for a Convention reason 14 The appellant asserts under this ground that the Tribunal adopted too narrow an interpretation of political opinion, that the Tribunal 'misapplied the law' in relation to well founded fear and that the Tribunal erred in applying too stringent a test in determining "real chance", contrary to Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379. No particulars are provided in the amended notice of appeal. 15 The Tribunal set out the principles it applied under the heading "The Refugees Convention". No error in those principles has been identified. 16 In the written submissions, the appellant asserted that the "Freedom Fighters" who extorted financial assistance from him chose him for his political belief, namely that he did not support their cause. It is other than this interpretation that the appellant says is too narrow. He then says that he was picked up by the police on the basis of his position with the "Freedom Fighters" and that the police knew that he was opposed to the "Freedom Fighters" and would provide information. 17 The written submissions repeatedly assert that the Tribunal failed to consider the case made by the appellant, of which the political opinions held by him form part. 18 In his written submissions, the appellant asserts that the Tribunal misconstrued the persecution he suffered. There is also a submission that seems directed to an assertion that the Tribunal erred in not taking his claims as to past events into account. This has not been made out. The Tribunal accepted the appellant's claims of past events. The Tribunal accepted that the appellant had a subjective fear of persecution. However, it held that the persecution was not for a Convention ground. 19 The problem with the appellant's submissions is that they do not accord with the claims he made to the Tribunal. The appellant specifically claimed that he had never engaged in any political activities and that the "Freedom Fighters" extorted money from him. The resulting finding of fact was open to the Tribunal on the evidence. 20 The next question is whether he was persecuted by the police for imputed political opinion. Raphael FM conveniently summarised the appellant's factual assertions before the Tribunal at [3]: 'The [appellant's] claim to hold a well-founded fear of persecution for a Convention reason is based upon some incidents which occurred to him commencing in June 1995. Up to that time he had been a non-political truck driver's assistant but on a date in that month and year he was stopped on the road by some Sikh militants and was required to provide them with food and money on pain of violence. Worse was to come, however. He told the Tribunal that eventually the police discovered the assistance he was giving to the militant group and he was arrested and detained. He was tortured and eventually agreed that he would act as an informant for the police. He found himself placed between what he describes as "two warring factions". He feared them both.' 21 Mr Reilly, who appears for the Minister, submits that the finding by the Tribunal that the acts of extortion were not for a Convention reason is a finding of fact, which was open to the Tribunal on the material before it and is not susceptible to review. He characterises that aspect of the decision as a factual finding that there was no political element in the police interest. He submits that the finding reflected a conclusion that the police were just pursuing an investigative task, albeit treating the appellant badly, in order to obtain information. He emphasises that the appellant's claim was that he had no political affiliation. Mr Reilly submits that the Tribunal properly considered whether or not the acts complained of had a Convention basis and decided, as a fact, that the acts were not based on any Convention ground but were based upon the perceived possession of something desirable. 22 Mr Reilly's submission can readily be seen to apply to the extortion of money from the appellant by the "Freedom Fighters", in actions that could reasonably be found to be solely criminal and not political in nature (Ramirez v Minister for Immigration and Multicultural Affairs (2000) 176 ALR 514 at [38]. It also, however, applies to the extortion by the police. It is a finding of fact that the Tribunal is entitled to make (Ramirez at [39]). Proof that persecution has been on account of actual or imputed political opinion is a matter going to proof of the facts, not a matter of law (V v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 355 at [16] and [32]-[33]). The question that the Tribunal was obliged to consider was whether the persecution was for a Convention reason. This it did. 23 The Tribunal relied upon country information about the decline in Sikh militancy and attendant police repression. With respect to relocation, the Tribunal noted the appellant's evidence that he had already relocated to New Delhi prior to coming to Australia. It found that, in the event that the appellant has any fear of danger, he has the ability to relocate. That was a finding of fact open to the Tribunal. 24 The appellant contends in the written submissions that the Tribunal applied the wrong test for persecution and that it failed to apply the "real chance" test. The Tribunal set out the principles it was to apply at the commencement of its reasons. It made specific reference to Chan Yee Kin, Applicant A & Anor v Minister for Immigration & Ethnic Affairs & Anor (1997) 142 ALR 33 and Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 144 ALR 567. It set out the "real chance" test. The appellant has not identified any error in those principles or shown that the Tribunal failed to apply them. The appellant contends that the Tribunal decision was "too stringent". Again no part of the decision is identified or any further detail provided. 25 Another asserted basis of error is consideration of the views of 'the putative persecutee' and failure on the part of the Tribunal to consider the motive of the persecutor. The Tribunal clearly considered the motives of the persecutors. This submission is unsupported by the decision. 26 This ground of appeal must fail.

The Tribunal failed to consider the appellant's claims 27 It is said by the appellant that the Tribunal failed to exercise jurisdiction 'as enunciated in Dranichnikov case; particularly in relation to imputed political opinion'. 28 It is also contended that the Tribunal did not have sufficient information and therefore 'has not dealt with the matter'. No particulars or explanation of this ground have been provided. 29 An assertion, again without particulars in the amended notice of appeal, is that the Tribunal ignored aspects of the appellant's claim. 30 It is acknowledged that the Tribunal generally accepted the appellant's evidence. What is asserted is that the Tribunal 'has not clearly understood and analysed the appellant's claim'. The two grounds now put forward as providing the necessary Convention ground are religion and actual or imputed political opinion and it is said that these grounds were not considered by the Tribunal or by the Federal Magistrate. 31 In the written submissions, without any detail and apparently for the first time, it is claimed that the appellant was 'picked on' by both the police and the Sikh "Freedom Fighters" on the basis of his religious background. Apart from the fact that he is a Sikh, no other religious basis is given nor any basis for suggesting that such a claim was made. As I read the Tribunal's decision and that of Raphael FM, religion was not a basis of the claim previously made. There can be no error in failing to consider a claim that was not presented and does not arise from the evidence presented by the appellant. 32 It is asserted in the written submissions that the Tribunal failed to address 'the political opinion held by the principal applicants'. I take this to mean the appellant. In circumstances where the appellant specifically stated that he held no political opinion, there was no such error on the part of the Tribunal. 33 No specific aspect of the claims said not to have been considered by the Tribunal has been identified. In my view, the Tribunal did consider the claims as presented to it by the appellant. The Federal Magistrate was not in error in failing to find jurisdictional error by the Tribunal for this reason.

The Tribunal erred in failing to take into account relevant information provided by the appellant; the Tribunal failed to consider all of the information; the Tribunal's finding was manifestly unreasonable 34 No particulars are provided. No information is identified. No aspect of the Tribunal's decision is referred to. This ground has not been established.

The Tribunal failed to accord procedural fairness 35 It is submitted that the Tribunal was obliged to and did not put relevant information to the appellant. In particular the Tribunal is said to have erred in not providing, and not allowing the appellant the opportunity to comment on, country information which formed the basis for the Tribunal's conclusions on well-founded fear. Section 424A, which provides in s424A(3)(a) that the Tribunal does not need to give country information to an applicant for comment, commenced after the Tribunal hearing. 36 No transcript has been tendered. Indeed, this matter was not raised before Raphael FM. Mr Reilly submits that, in the absence of the transcript or any evidence to the effect that the Tribunal did not raise the matters in the country information with the appellant or give him an opportunity to respond, it is not open to make a finding that the issues had not been canvassed or that is has been established that the Tribunal did not comply with the rules of natural justice (NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [21]). 37 As was pointed out by Gleeson CJ in Muin v Refugee Review Tribunal (2002) 190 ALR 601 at [22] and [24], the failure to accord procedural fairness involves a factual issue as to which the appellant bears the onus. There is no factual basis for the appellant's assertion. There is no basis advanced for any unfairness on the part of the Tribunal. 38 In the present case, the country information cited, was based on a DFAT cable of 1996 reporting on general elections and reported problems in the Punjab. In the words of the Tribunal, it 'indicates that Sikh activism had declined significantly by the time the applicant left for Australia raising doubts that the situation faced by the applicant might still pertain'. In Applicants M1015/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1309, Weinberg J discussed the requirements for the establishment of a denial of procedural fairness where the applicant had not been given a copy of country information by the Tribunal in the light of previous decisions of the High Court and of this Court. Even if there were no obligation on the appellant to establish that, absent the unfair process, he or she would have taken a different course and that the process has resulted in practical unfairness, the nature of that information is 'purely factual and incontrovertible' (per Weinberg J at [54]) and does not require comment or submission. 39 Further, the observations of the Tribunal based upon the country information were made after the Tribunal had found that the alleged persecution was not for a Convention reason. Those observations and the finding that the appellant could relocate within India were in the context of considering whether the situation he described could still pertain if the appellant felt that he was still in any danger for any reason. They were not determinative of the appellant's entitlement to protection under the Convention. If the findings based on country information as to the situation in the Punjab did form part of the reason for the decision, so too did the factual finding of the ability to relocate and that factual finding was determinative. 40 There has been no denial of procedural fairness.

The Tribunal failed to comply with s 415, s 420 and "other provisions of the Act" 41 It is hard to see the basis of the reference to s 415 or s 481. Section 420 does not mandate specific procedures to be observed by the Tribunal or the method by which it is to reach its decision. Even if there were failure on the part of the Tribunal to observe the procedures required by s 420, the decision is not reviewable for that reason (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 635). No particulars are provided of the assertion that the Tribunal failed to conduct the review. No error has been established.

The Tribunal failed to have proper regard to the reasonableness of relocation in India and thereby erred in law 42 The particulars of this ground are that the Tribunal 'has erroneously ignored information in relation to the first appellant's mothis (sic) in coming to the conclusion on the future predictability of being persecuted'. It is submitted that the Tribunal failed to apply the correct test in its consideration of what would happen to the appellant if returned to India. Further, the appellant asserts that the Tribunal made no proper inquiry in relation to relocation. 43 The Tribunal's finding of fact was based upon the appellant's evidence and was open to the Tribunal. No particulars are given of any information said to have been ignored. The Tribunal was not obliged to make any inquiry; Re Minister for Immigration and Multicultural and Indigenous Affairs: ex parte Cassim (2000) 175 ALR 209 at [13]. No error is established.

The Tribunal was biased 44 The particulars provided in the amended notice of appeal are that the Tribunal considered country information. 45 In the written submissions, both apprehended bias and actual bias are alleged. As has repeatedly been stressed by this Court, such an allegation is of the utmost seriousness and should not be raised without proper particulars. A mere assertion or inadequate particularisation should not be condoned. In the present case, the written submissions, although signed by the appellant, were clearly not prepared by him. Indeed, he relied upon that fact to explain why he could not elaborate on any aspect of them. The written submissions bear the hallmark of some legal expertise. Whoever drafted them appears to have little understanding of the duty owed to the Court or of the proper conduct of litigation. 46 The written submissions alleging bias refer to transcripts which have not been placed before the Court or before the Federal Magistrate. Reference is made to 'the manner [the Tribunal] appeared to debate the issues from its perspectives...and the way the Tribunal debated issues with the applicant (sic)'. Allegations are also made 'as to [the Tribunal's] use of the country information' without any particulars. 47 These allegations must be rejected. There has not even been an attempt properly to raise a ground of apprehended or actual bias.

Unreasonableness 48 The appellant also submits that the Tribunal's decision was manifestly unreasonable and harsh and 'runs contrary to all previous findings on the same information'. No detail of these previous findings is given. No error has been shown.

CONCLUSION 49 The appellant has failed to demonstrate any error in the decision of the Federal Magistrate. I have considered the additional matters raised concerning the decision of the Tribunal. No jurisdictional error has been demonstrated. 50 It is not necessary to deal with the first respondent's submission that the delay in filing the application in the Federal Magistrates Court warranted refusal of relief, if error were established. 51 The appeal is dismissed with costs. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate: Dated: December 2005 The Appellant appeared in person assisted by an interpreter.

Solicitor for the Respondent: Blake Dawson Waldron

Date of Hearing: 28 and 29 November 2005

Migration Act 1958(Cth)ss 415, 417(1), 420, 481

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