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[2011] FCA 70
Federal Court of Australia
2011-02-10
McKerracher J
Original judgment source is linked above.
INTRODUCTION 1 The appellant, a citizen of India, arrived in Australia on 9 April 2007 on a student visa. On 3 November 2009, he lodged an application for a protection visa with the Department of Immigration and Citizenship (the Department). A delegate of the Department refused the application on 24 January 2010. On 16 February 2010, the appellant applied to the Refugee Review Tribunal (the Tribunal) for a review of that decision. The Tribunal affirmed the decision of the delegate and the appellant appealed to the Federal Magistrates Court. 2 This is an appeal from the judgment of a Federal Magistrate delivered on 25 October 2010 (SZOIX v Minister for Immigration & Anor [2010] FMCA 859). Her Honour dismissed the application for judicial review of the decision of the Tribunal handed down on 26 March 2010.
APPELLANT'S CLAIMS 3 The appellant claimed to fear persecution due to his religious beliefs and political opinion. He claimed to be an active member of the All India Sikh Student Federation, a supporter of the Khalistan movement and a supporter of the Shiromani Akali (A) Party where he was a member of the party's central committee. 4 He claimed he was monitored, followed, interrogated and arrested by security agencies. He was mistreated by the police and handed to the special branch of the Punjab police consisting of military intelligence officials who physically tortured him and accused him of having links with the Pakistani Intelligence (the ISI). 5 The appellant claimed that he had been detained under a law that was not reviewable in any court of law. He was released after three months in detention on the condition that he desist from political activity. As a result, his electrical repair business was ruined. 6 He resumed political activities and claimed that he had been arrested, bashed, continuously harassed and had a false case filed against him. This case was later dismissed. He also claimed that he and his friends and family had received death threats. The appellant feared that he would be killed if he returned to India.
BEFORE THE TRIBUNAL 7 The Tribunal found that on the available material the appellant's statement contained a number of vague, unsubstantiated assertions. In a letter to the appellant, he was invited to appear before the Tribunal to give evidence and present arguments relating to the issues. The Tribunal expressed the view that the evidence relating to his involvement in promoting Sikh rights, particulars and chronology of persecution and harm suffered, details of the consequences of harm, protection and support that had been sought and fears of death to be insufficient. The appellant did not respond to the invitation and failed to appear. He did not respond to the Tribunal to explain his failure to appear. 8 The Tribunal accepted that the appellant had Indian nationality. On the limited information before it and without clarification of the claims, the Tribunal was not satisfied that the appellant had a well-founded fear of persecution for any Convention-related reason.
THE FEDERAL MAGISTRATE's DECISION 9 Before the Federal Magistrate the appellant claimed: 1. That the Tribunal did not consider aspects of the appellant's claim and that the Tribunal had incorrectly determined that the appellant did not fall within refugee law. 2. Jurisdictional error. 10 The learned Federal Magistrate noted, in relation to ground 1, that the issue was not jurisdictional error but, in any event, the Tribunal had not failed to take into consideration aspects of the appellant's claim. Her Honour found that the Tribunal had expressed specific concerns about the lack of information and had invited the appellant to attend a hearing. The Tribunal was under an obligation to consider whether it could be satisfied of the criteria for the class of visa which the appellant had applied on the appellant's evidence: SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225. Her Honour concluded that there was no error in the approach and finding of the Tribunal. 11 In relation to ground 2, her Honour noted that there was nothing before the Court to suggest that the appellant was deprived of the opportunity of a fair hearing. There was no evidence which suggested that the Tribunal had failed to comply with its obligations pursuant to s 425 of the Migration Act 1958 (Cth) (the Act). The learned Federal Magistrate found no jurisdictional error and dismissed the application. 12 The appellant also filed an amended application which the learned Federal Magistrate had noted as being mostly a history of the appellant's claims for a protection visa. Her Honour stated that to the extent that the appellant was seeking a merits review, it was not an avenue available to the Court. The amended application also appeared to include a claim that the Tribunal did not take into consideration the fact the appellant was an important active member of the political party. Her Honour held that there was no suggestion that he made these claims to the Department or the Tribunal. As the appellant failed to attend a hearing, it could not be said that the Tribunal failed to have regard to relevant considerations as it considered the evidence to be 'vague and unsubstantiated'. 13 Her Honour concluded that the Tribunal was under no obligation to consider whether there was a chance he would face persecution in the future as the claims could not be verified.
GROUNDS OF APPEAL 14 The notice of appeal is in these terms: 1. That the Learned Federal Magistrate has failed to determine the actual harm to which the appellant is faced with, the appellant belongs to the All India Sikh Student Federation, in the province of Punjab, India. The applicant is open to the serious harm as the appellant submitted in his statement of claim The appellant was involved in his political party which does not matched the ideology of the authorities in India , the appellant was subjected to serious harm , the applicant was kept in jail for a long times. The most important issue which remains undressed, the appellant is from Sikh ethnicity, the applicant is a strong supporter of the Khalastan Movement The learned FM simply upheld the decision that the appellant is not an important person is not safe to declared a person of not any importance. This is a jurisdictional error, and a mistake of law. 2. That the Appellants submitted the whole evidence of his being involved in the political activities, the applicant submitted the bundles of the evidence before the department, and RRT, but the evidence was not taken in to consideration which has resulted in the miscarriage of justice. The applicant has an arguable case, to which the applicant shall submit more evidence. The applicants evidence was ignored, if it was not ignored, the applicant, if the evidence is read, the applicant has an arguable case. The appellant made out a case which really requires the judicial inference of this honourable Court as to determine the danger of life being taken away. 3. That the Respondents did not applied the proper law and procedure, this has resulted in the error of the law. 15 It appears that the notice of appeal, in essence, raises the following grounds that: 1. the learned Federal Magistrate committed jurisdictional error in not determining the actual harm to which the appellant faced. 2. her Honour failed to take into account the whole of the appellant's evidence of his political involvement which resulted in a miscarriage of justice. 3. the respondents committed an error of law in not applying the proper law and procedure to the appellant's case. 16 In argument before me, the appellant repeated the factual claims and directed argument to the merits of the decisions taken. No new points of principle or jurisdictional error were addressed.
ANALYSIS 17 The judgment below (at [2]-[13]) closely and accurately considered the issues before reaching the conclusions discussed above: 2. The applicant, a citizen of India, arrived in Australia in April 2007 as the holder of a student visa. He applied for a protection visa in November 2009. He claimed to fear persecution in India by reason, in essence, of his involvement in the All India Sikh Student Federation and as a supporter of the Khalistan movement. He also claimed that he and his friends were suspected by the authorities of having links with Pakistani Intelligence (the ISI). 3. The applicant was invited to attend a Departmental interview but did not do so. The delegate of the first respondent refused his application noting, among other things, a lack of specific detail in his statement in support of his protection visa application. 4. The applicant sought review by the Tribunal. In his application for review he provided one address as his residential address and his address for correspondence. He did not provide any other contact details. 5. The Tribunal wrote to the applicant acknowledging receipt of his application and sent a further letter dated 25 February 2010 advising him that it had considered the material before it, but was unable to make a favourable decision on that information. It invited him to attend a hearing scheduled for 24 March 2010 at a time and location specified and advised that if he did not attend, the Tribunal may make a decision without taking any further action to allow or enable him to appear before it. This letter was addressed to the only address provided by the applicant and appears to have been sent by registered post. The applicant did not attend the Tribunal hearing at the date, time and place specified. 6. In its reasons for decision the Tribunal observed that neither of its letters to the applicant had been returned to the Tribunal as at 24 March 2010, that the applicant had not provided any mobile telephone number or other contact details or details of an authorised recipient. In circumstances where it had sent the invitation to the only address (a residential address) provided, the Tribunal decided pursuant to s.426A of the Migration Act 1958 (Cth) (the Act) to make its decision on the evidence available to it without taking any further action to enable the applicant to appear before it. 7. The Tribunal summarised the applicant's claims as set out in connection with his protection visa application, as a claim to fear persecution "from the Indian authorities, particularly the security agencies, as well as Hindu extremists", including his claim that in the past he had been targeted "because of his membership of the All India Sikh Student Federation and of the Shiromani Akali (A) Party, in other words, because of his financial support and political involvement in Sikh separatist groups". It set out his claim that he was a "religious Sikh" and that the Indian authorities and Hindu extremists had "historically mistreated the Sikh community". It summarised his claims about past harm, including "monitoring, interrogation, and mistreatment by …security agents and intelligence officials; pressure to desist from political activities; disruption to his business and normal life; and physical assaults and… false charges" which had been dismissed. It recorded that he claimed to fear being killed if he returned to India. 8. However the Tribunal also referred to the fact that the mere fact that a person claimed to fear persecution for a particular reason did not establish the genuineness of such asserted fear, that it was well-founded or for the reasons claimed. 9. It was satisfied that the applicant had had an opportunity to present his case, having regard to the hearing invitation, but found that the applicant's statement in support of his protection visa application contained "a number of vague [and] unsubstantiated assertions". 10. The Tribunal set out matters about which it had insufficient information, including about "the applicant's claimed involvement and profile in promoting Sikh rights", clarification of his claim about being a religious Sikh and how this related to his refugee claims, as well as clarification of other specified matters such as his commitment and activities in this respect. 11. It also referred to the absence of "[p]articulars and a clear chronology" of the claimed persecution that the applicant had referred to in his protection visa application and the absence of details in that respect, as well as to the absence of details as to the "consequences of such harm for the applicant and his family" and about the circumstances of his travel to Australia, as well as insufficient details in relation to his "fears regarding his return to India". 12. The Tribunal found that "[o]n the limited evidence before it, and without further details and clarification [it was] not satisfied that the applicant [was] a politically active Sikh, who ha[d] supported separatist groups" or was perceived as such. Nor, on such evidence, was it satisfied that the Indian authorities had harmed the applicant in the past in the manner claimed, subjected his friends and family to threats or other harm, that he had ever required protection from such harm or that he "ha[d] any political or other interest that may motivate him to engage in relevant conduct if he return[ed] to India". 13. In light of such uncertainty, the Tribunal found that it was not satisfied that the applicant faced a real chance of Convention-related persecution. It affirmed the decision not to grant the applicant a protection visa. 18 The grounds of appeal appear to raise issues which were not pleaded or argued below. In order to raise new arguments on appeal the appellant requires the leave of the Court. The leading cases and principles applicable to the grant of such leave were considered in detail in SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578. 19 In any event and for the reasons set out below, the proposed new grounds are without merit and lack any prospect of success. 20 Ground one which begins 'That the Learned Federal Magistrate has failed to determine the actual harm to which the appellant is faced with ...' is an attempt at impermissible merits review. The complaint appears to be that the Court below erred by not determining that the appellant is a refugee as claimed. This ground does not identify any legal error in the judgment of the learned Federal Magistrate. 21 Ground two appears to complain that the Tribunal did not consider the evidence before it. In particular the appellant claims that he 'submitted the bundles of the evidence before the department and RRT, but the evidence was not taken in to consideration'. This complaint has not been raised before and, more importantly, is without substance. The only material lodged by the appellant with the Department and the Tribunal was the statement attached to his protection visa application. The applicant submitted no further supporting documents and, despite invitation, attended neither an interview with the delegate nor the hearing in the Tribunal. 22 As to the claims contained in the statement attached to the protection visa application, contrary to the appellant's assertion, these were expressly set out and considered by the Tribunal at [24] and [35] respectively of its reasons where the Tribunal said: [24] The applicant's refugee claims are set out in a statement attached to the application form. The statement is difficult to follow, as it lacks dates or a clear chronology. It indicates the following: • The applicant completed his secondary school certificate in his home town of Cochin, and passed a Certificate III course in Cookery in Australia. He also appears to mention having started his own farm. • He was interested in the political welfare of Sikhs throughout India. Hindu extremists, the Indian authorities and the Army victimized Sikhs. The applicant revisits some historical matters, such as the Golden Temple incident, and states that many of his relatives were killed in that period. • The applicant is a religious Sikh. Together with his friends, he was an active member of the All India Sikh Student Federation, and helped them financially. He was a supporter of the Khalistan movement, and a supporter and member of the Shiromani Akali (A) Party. He held meetings in his home area of Amritsar, made speeches and campaigned. He states that the Khalistan movement is operating within the laws, in demanding an independent state. • The applicant became a member of the party's central committee - although young, his president had faith in him because of his hard and effective work. He worked actively in his role, including recruiting young people to the party and creating a Punjab-wide student wing. • The security agencies followed the applicant and his friends. They interrogated him many times, and also arrested him (the applicant states that this was 'for the first time in the year', but gives no date). The police mistreated the applicant, then handed him over to military intelligence officials in the Punjab police special branch. (He refers to this having happened to him, together with others.) They detained the applicant (and others) for 3 months under a law that was not reviewable in any court of law. We ('both of us') were interrogated, begin (sic- being) accused of having links with the Pakistani ISI. They were physically tortured, including sleep deprivation. • The applicant states that they were released only after promising not to engage in any politics. The applicant found that his electrical repair business (there is no earlier mention of this) was ruined because of his detention. • The applicant resumed political activities. His opponents printed flyers alleging that they (the applicant and his friends) were Pakistani agents and should be boycotted. • After the general elections, the authorities again turned on the applicant. The police arrested and bashed them, filed a false case, and were continuously harassed, even after the false case was dismissed. The applicant, his parents and his friends' parents received death threats. • The applicant (and others) decided they had to flee India. He and his friend came to Australia on student visas, to flee persecution. [35] The applicant's statement contains a number of vague, unsubstantiated assertions. Among the matters about which the Tribunal has insufficient information are: • Information about the applicant's claimed involvement and profile in promoting Sikh rights, in particular: - clarification of his reference to being a 'religious Sikh' and how this relates to his refugee claims; his family background and other motivations for being politically active; particulars of his commitment to the All India Sikh Student Foundation, the Shiromani Akali (A) Party and other groups related to the Khalistan movement; details of his personal activities (such as recruiting young people to a political party and establishing a Punjab-wide student wing); his later resumption of activities (after Indian authorities had warned him off); and any continued engagement in these issues. • Particulars and a clear chronology of the persecution that he claims that he and his family suffered, including: - whether any harm suffered by relatives in the past has any bearing on his motivation or profile now; the timing and circumstances in which the security agencies pursued the applicant and his friends; details of the claimed 3-months detention, interrogation and other mistreatment; the claimed threats and warnings for him to refrain from political activities; details of the accusations by political opponents that the applicant was a Pakistani agent; details of the renewed official mistreatment of him after the general elections (the arrest, assault and laying of false charges); details of the false charges and why they were dismissed; and the continued harassment of the applicant and his family and friends, including death threats. • Details of the consequences of such harm for the applicant and his family, such as on their livelihoods (studying, the farm and/or any electronics shop); any efforts to seek support or protection (for instance, from political colleagues, the Sikh community or others; and the circumstances of the applicant's later travel to Australia. • The applicant's fears regarding his return to India, including who may kill him and their motivations, and any other harm. 23 Ground three asserts that the 'Respondents' did not apply the proper procedure. There are no particulars. The learned Federal Magistrate reviewed the decision of the Tribunal independently of the grounds pleaded. Her Honour correctly observed (at [26]): Finally, there is nothing in the material before the Court to suggest that the Tribunal failed in any way to comply with its obligations under the Migration Act, in particular its obligation in s.425 of the Migration Act to invite the applicant to a hearing. 24 No other failure by the Tribunal to comply with the statutory requirements as to procedural fairness set out in Div 4 of Pt 7 of the Act is apparent, nor is for that matter any unfairness in the procedure adopted by the Court below.
CONCLUSION 25 The findings of the Tribunal were clearly open to it on the evidence before it. There was no jurisdictional error in the Tribunal's approach and no error of law in the judgment of the Court below. 26 The appeal is dismissed. The appellant is to pay the costs of the first respondent, to be taxed if not agreed. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.
SZOIX
Minister for Immigration and Citizenship