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MIGRATION - RRT refused visa to Sikh from Punjab - Tribunal finding that police extortion not based on Convention reason - no jurisdictional error identified.

SZDKF v Minister for Immigration [2004] FMCA 817 (2 November 2004)

SZDKF v Minister for Immigration [2004] FMCA 817 (2 November 2004)
Last Updated: 26 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDKF v MINISTER FOR IMMIGRATION
[2004] FMCA 817




MIGRATION - RRT refused visa to Sikh from Punjab - Tribunal finding that police extortion not based on Convention reason - no jurisdictional error identified.




Migration Act 1958 (Cth), ss.91R(1)(a), 424A(1)(a), 424A(3), 474(1), 477, 483, 483A,

Part 8

Judiciary Act 1903 (Cth), s.39B

Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263

Applicant:
SZDKF




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG1216 of 2004




Delivered on:


2 November 2004




Delivered at:


Sydney




Hearing date:


2 November 2004




Judgment of:


Smith FM




REPRESENTATION

Solicitors for the Applicant:


Mr C Jayawardena




Counsel for the Respondent:


Mr G Johnson




Solicitors for the Respondent:


Sparke Helmore



ORDERS

(1) Objection to competency upheld.

(2) Application dismissed.

(3) The applicant to pay the respondent's costs in the sum of $5500.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG1216 of 2004

SZDKF & Ors



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
(revised from transcript)

1. This is an application to this Court filed under s.483 of Migration Act 1958 (Cth) which challenges a decision of the Refugee Review Tribunal dated 14 March 2003 and handed down on 4 April 2003. The application for visa was brought by a husband and wife and their child, and they are also named as applicants in these proceedings. However, the claims for refugee protection were those of the husband and I shall refer to him, as did the Tribunal, as "the applicant".

2. The proceeding in this Court was commenced on the 27 April 2004, but earlier proceedings challenging the Tribunal's decision had been commenced and concluded in the Federal Court of Australia in its South Australian Registry. In those proceedings, being FCA S468 of 2003, an application for judicial review was filed on 30 April 2003 containing an entirely unparticularised list of almost all the heads of judicial review. Mansfield J gave directions requiring the applicant to elucidate the grounds of his application and those directions, it appears, were not complied with. On 10 October 2003 the applicant's then solicitor appeared and consented to the dismissal of the proceedings. An affidavit by the applicant before me alleges that this was not done under his instructions, but I have not found it necessary to make findings as to this.

3. Counsel for the Minister foreshadowed that, were I to find grounds for judicial review in the present proceedings, the Minister would submit that relief should be refused either as a matter of discretion arising from the proceedings in Adelaide and further unexplained delay, or on the basis of estoppels arising out of the consent order. However, I did not hear argument from the Minister fully on these issues, and did not hear any submissions from the applicant's solicitor on them, since I asked both counsel first to address me on whether the Tribunal's decision was vitiated by jurisdictional error. After hearing helpful and full argument from both legal representatives, I decided that the application must fail on its substantive grounds.

4. Section 483A gives this Court "the same jurisdiction as the Federal Court in relation to a matter arising under this Act", which means that this Court has the general judicial review jurisdiction conferred by s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act. It is accepted by both counsel that those limitations would not apply if I were persuaded that the Tribunal's decision was vitiated by jurisdictional error.

5. Counsel for the applicant sought to persuade me that five jurisdictional errors were made, and these were listed in an amended application as five grounds with particulars identifying passages in the Tribunal's reasons where it was argued they occurred.

6. The reasons of the Tribunal set out the claims made by the applicant for protection under the refugee's convention. He is a 39 year old Sikh man born in the Punjab, and his wife is 24. He received a university education and then worked on a family farm in the Punjab for about ten years before going to Hong Kong in 1991. He returned to India in 1996 for around two weeks to marry his wife, and then went back to Hong Kong. His wife spent some seven or eight months in Hong Kong after their marriage. The applicant lived in Hong Kong for about eight years altogether and worked in a shop. He returned to India in 2001 for some months before coming to Australia via New Zealand. He entered Australia in May 2001, and at the end of that year applied for protection visas.

7. In his protection visa application, the applicant did not identify any particular history of persecution directed at him or his family, but expressed a general concern which had caused him to leave his country. He said this was:

Because Sikh people had no recognition from Indian government and suppressed at all costs. We are not treated equal and will never have this privilege.

We are constantly monitored, suppressed by the authorities. We are not entitled to protection. We are not even acknowledged.

We, as a minority group, do not know how to acquire international recognition or lobby our cause. The problem lies dormant and we do not know how to surface it and look for a treatment. We fear physical abuse.

8. In support of his application he was invited to attend an interview with the delegate, but did not attend. The delegate dismissed the application in the absence of further details about his fears and concerns on returning to the Punjab.

9. Before the Tribunal, the applicant attended a hearing. The transcript of what happened is in evidence before me and I have read it all. The Tribunal summarised what the applicant said in its statement of reasons, in an manner which the applicant's counsel accepted to be accurate:

I asked the applicant at the hearing if anything bad had happened to him in Punjab. He said that when he had been farming, from around 1984 until not long before he went to Hong Kong in 1991, small groups of extremists would come very often and force the family to provide them with food. He said that the police became suspicious because of the extremists' presence on the farm and took the applicant into custody, questioned him about the whereabouts of the extremists and beat him. The applicant said that he had been in hiding for much of this time. I put to the applicant that he was running a farm and that it was difficult to see that he could have been in hiding for six or seven years. He said that he had employed a foreman and that he (the applicant) had been living in hiding and that when a new officer would take over at the local police station he would take the applicant into custody and beat him just to get money. The applicant said that he had been taken into custody by the police several times, that he would be detained for four or five days each time and that a bribe had to be paid in order for him to be released. I asked the applicant if anything bad had happened to his father or brothers and he said that they had been taken by the police once or twice but that mostly it was the applicant who had been picked up and he thought this was because he was living on the farm.

I asked the applicant about his return to India for his wedding. He said that the police had tried to catch him when he was there and that he went to Delhi and back to Hong Kong. I asked the applicant what led him to think that the police were seeking him. He said that the police would ask people in the neighbourhood if a particular person was at home and that there are people who had not liked him in the past who told the police of his presence. He said that he paid a bribe and the police then stayed away. I said to the applicant that it sounded to me as if the police were after money rather than seeking him on suspicion of association with militants and he said that the police could beat people if they were not given money. I advised the applicant that the police acting against people in order to obtain money did not appear to engage any of the reasons in the Refugees Convention which I had explained to him. He said that if people were beaten up all the time then they had to find refuge somewhere.

I asked the applicant about the months he had spent in India between leaving Country A and coming to Australia. He said that the police had harassed him when he was in his village and said that he had helped extremists. He said that people who did not like him had told the police that he was there. I asked the applicant what he meant by harassment and he said that the police took people into custody and beat them in order to obtain money and he said that sometimes the police gave some of the bribe payment to the people who had reported the presence of the victim. I said to the applicant I could see that he, as a then young Sikh man, could have been subjected to such mistreatment as he described in the 1980s and early 1990s, but that it seemed to me that such treatment was improbable in the early 2000s given the dramatic changes in Punjab. He referred me to the situation in Gujarat and said that some 2000 people had been killed there recently. I said to the applicant that the situation in Gujarat arose from conflict between Muslims and Hindus and did not seem to me to be relevant to his circumstances or to the situation in Punjab. He said that it could happen to him. He spoke of the events in 1984, when the Golden Temple was stormed initiating a long and violent conflict between the government and Sikh militants, and said that whichever government is in power a person like him will always face trouble. The applicant confirmed that he had spent four months in New Delhi and said that he had gone there to avoid the police. I asked him if anything bad had happened to him there and he said that he had kept moving around.

I asked the applicant about what he feared might happen to him if he were to return to India. He said that he thought that he would be killed. The applicant told me about his concern that he and his family would face hardship if they were to return. He said that they had no money left to fund setting themselves up there. He said that it would be very hard for him to find work and make a living.

10. The five grounds of review argued before me identified passages in the following reasoning of the Tribunal under its heading: "Findings and Reasons". I have numbered the paragraphs and highlighted the sentences which are the subject of the grounds of review:

1) I accept that the applicant is a Sikh and that he lived in Hong Kong from 1991 and returned to India in 1996 to marry and again in 2001 before coming to Australia. I also accept that the applicant worked on the family farm and sold his portion around the time he went to Hong Kong.

2) I also accept that the applicant may have been subjected to harassment by people he thought were extremists and by the police in the several years before his departure for Hong Kong in 1991 and that this, along with a then gloomy outlook for an end to the conflict, could have been a significant reason for his decision to leave India. Independent information confirms that the Punjabi police took extremely strong action against anyone suspected of association with Sikh militancy and that thousands of innocent people were caught up and often harmed in such operations. The applicant states that he was questioned, detained for four or five days, beaten and had to pay money to be released, that this happened several times in the years before he left India and that he had hidden a lot of the time. Many people were mistreated in these kinds of ways, and worse, at the time. I note that I found the applicant's evidence about hiding a lot of the time very unconvincing given that he was running a farm and that he was picked up by the police five or six times. I do not consider that the evidence indicates that the authorities sustained a concern that the applicant was a person associated with Sikh militancy: he was working on his farm and the episodes of questioning (which involved being in custody and being beaten) were infrequent. Had the authorities harboured a real suspicion that he was involved with militancy and given the authorities' determination to wipe out militancy, I consider that there would have been more concentrated taken against him. I am prepared to accept that what the applicant experienced could be regarded as persecutory treatment but I am not satisfied that what he experienced before his departure for Hong Kong in 1991 is material to what might happen if he were to return to India in the reasonably foreseeable future. Not only does the evidence indicate that he was not seriously suspected of association with Sikh militancy but the situation in Punjab has changed markedly since the applicant's departure in 1991. The Sikh militant movement has been all but eliminated, the state is generally peaceful and there are no signs that there could be an eruption of militancy such as that which led to the conflict in the 1980s and early 1990s.

3) I have considered the applicant's account of what happened when he returned to India in 1996 to marry. I accept that the applicant may have been a victim of extortion by the police but his evidence at the hearing did not indicate to me that any suspected militancy had prompted their interest; rather, it appears that their interest was prompted by a desire to obtain money from him and that people in the neighbourhood who the applicant thought might not have liked him in the past alerted the police to his presence in the area. I accept that people who see a person return from abroad might think that they have a lot of money and may seek to extort some of it from such returnees. I do not consider that the evidence indicates that what the applicant experienced in 1996, or in 2001 when he said that he was also pressed for money, engages the provisions of the Refugees Convention because I do not consider that the essential and significant reason for what occurred - extortion - was his race, religion, nationality, his membership of a particular social group or his political opinion but rather his perceived, and relative, wealth as a person who had returned from abroad. What the applicant described is analogous with the circumstances described in Ram v MIMA (1995) 57 FCR 565. In his judgement (at 569), Justice Burchett stated:

"Plainly, extortionists are not implementing a policy, they are simply extracting money from a suitable victim. Their forays are disinterestedly individual. ... [The appellant] does not fear persecution for reasons of membership of a particular social group, but extortion based on a perception of his personal wealth and aimed at him individually."

4) It follows from the foregoing that I do not consider that there is a real chance that the applicant's race, religion, nationality, membership of a particular social group or his political opinion would be the essential and significant reason for any extortion demands which he may face upon return and that consequently such treatment does not constitute persecution within the meaning of the Refugees Convention.

5) There are aspects of the applicant's evidence about what happened in the early 2000s when he went to India before coming to Australia which I consider to be not accurate. I am unable to accept that the police accused him in 2001 of helping extremists other than for the purpose of extorting money from him for the essential and significant reason of his perceived wealth. By then, the situation in Punjab had been calm for several years and the past wrongdoings of the Punjabi police exposed. This is not to say that there are no incidents of violence or that no Punjabi police officer will abuse his power and mistreat people but it is evidence that such episodes are now isolated occurrences and there is no evidence before me which could support a conclusion that there is a real chance that the applicant was, or would be, suspected of involvement with extremists and so at risk of abuse for a Convention reason, that is because he is Sikh. Nor do I accept that he moved around in New Delhi to avoid the police: there is no credible evidence to indicate that the applicant was a person of actual or even potential interest to the police for any of the reasons in the Refugees Convention.

6) The applicant referred to the troubles which had erupted in Gujarat and to the very many people who had died in the fighting. While of concern, I am unable to find that the circumstances in Gujarat and the conflict between Hindu and Muslim people there are material to what might become of the applicant of he and his family were to return to live in Punjab.

7) The applicant states that he is concerned that Sikh people were not treated equally by the national government. I recognise that there are long-standing grievances on the part of the Sikh population towards aspects of the Indian government's policies but independent information indicates that Sikh people are able to, and do, participate actively in all walks of Indian life. I do not consider that the evidence indicates a real chance that discrimination which the applicant claims to fear he might face as a Sikh would constitute serious harm and so of a kind which could constitute persecution. In addition, I recognise that the applicant is very concerned about making a living in Punjab and about the financial hardship he and his family may have to endure as they try to resettle in their country. It will not be easy for them but I do not consider that the hardship they may face will be because of the applicant's race, religion, nationality, membership of a particular social group or his political opinion, that is any of the reasons in the Refugees Convention. The applicant's fear in this regard does not therefore engage Australia's protection obligations under the Refugees Convention.

8) I am not satisfied that the applicant faces a real chance of persecution for a Convention reason if he were to return to India and I therefore find that his fear is not well-founded.

11. I shall deal with each ground in the outline of submissions argued under the headings, ground one to five.

GROUND ONE

12. Ground one identified the highlighted passage at the beginning of paragraph three in the above extract. It was argued that, when the Tribunal found in relation to his 1996 visit to the Punjab that "his evidence at the hearing did not indicate to me that any suspected militancy had prompted (the police) interest", it revealed a misunderstanding of the applicant's evidence such that it failed to address a significant point in the applicant's claims for refugee status. This was that he was still regarded in 1996 as having a political profile as a suspect Sikh extremist, and that his political profile provided a reason for the extortion activities of the police against him and other harassment. It was pointed out to me that the applicant's evidence concerning his 2001 visit, as recited earlier by the Tribunal, recorded: "he said that the police had harassed him when he was in his village and said that he had helped extremists".

13. The submission was that it was part of the applicant's claims that a reason for police harassment in his visits in 1996 and 2001was that they perceived him as an associate of Sikh extremists, and that the Tribunal erred when failing to find a Convention reason for the harassment.

14. The Application pleaded the Ground as "jurisdictional error by drawing the following conclusions, where there is no evidence and thus questioning the credibility of the applicant". However, as I understood the submission elaborated in exchanges with me, it was argued that there was a "failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it" by reason of the Tribunal making "an error of fact in misunderstanding or misconstruing a claim advanced by the applicant" within well known authorities discussed in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [63-68].

15. I do not accept this submission. In my opinion the Tribunal both adequately identified this part of the applicant's claims, and also dealt with it when deciding the matter before it. I am not persuaded that it did not deal with them, in particular, for two reasons. First, because the Tribunal has recited the relevant evidence in the earlier part of its reasons, in which the applicant sought to point to a political motivation for the police harassment in 2001, thereby showing an awareness of this claim. Secondly, and more importantly, because it deals with this evidence expressly in paragraph 5 of the extract above. In that paragraph it concludes: &quo;
t;I am unable to accept that the police accused him in 2001 of helping extremists other than for the purpose of extorting money from him for the essential and significant reason of his perceived wealth." I note that the test of "essential and significant reason" was required of the Tribunal by s.91R(1)(a) of the Migration Act.

16. In short, I think it is clear from its reasoning that the Tribunal addressed the claim and did not accept it. On a fair reading of the whole of the reasoning extracted above, I consider that the Tribunal held that the persecutory treatment which the applicant had suffered before 1991, and any police suspicion of political associations upon which it was based, had ceased to have any material effect on the actions of the police in later years, and was not in fact part of their real motives or reasons for the harassment in the course of his return visits in 1996 and 2001. The Tribunal held that the "essential and significant" reason for this was private extortion. In my view, the Tribunal provided sufficient reasons which were open to it on the evidence for not accepting that part of the claim.

GROUND TWO

17. Ground two focussed on the highlighted parts of paragraph 5 in the extract above and, somewhat inconsistently with Ground One, argued that it was not open to the Tribunal, acting reasonably, to refuse to accept the applicant's claim that the police accused him in 2001 of helping extremists and that this established a Convention based reason for their harassment.

18. It is enough for me to say that, in my opinion, the Tribunal's findings of fact in this paragraph were open to it on the evidence and, in particular, on the applicant's evidence given to the Tribunal, which is found at pages 18, 19 and 22 to 24 of the transcript which is attached to the applicant's affidavit sworn on 19 October 2004.

GROUND THREE

19. Ground three focussed upon the highlighted passage in paragraph 3 of the above extract, where the Tribunal made findings in relation to the motivation of the harassment that occurred during the 1996 and 2001 visits to the Punjab. It was submitted that the findings that the applicant was perceived to have "a lot of money" and to have "perceived and relative wealth" as a person who had returned from abroad were made in breach of procedural fairness because there was no evidence on which they could be made.

20. In my opinion, it was well open to a Tribunal to draw an inference from the account given by the applicant to the Tribunal that the reason for his being harassed in the course of his visit for the purposes of marriage was a perception by those who initiated and conducted the extortion that he could afford to pay their demands. I am not satisfied that the Tribunal drew any inference not open on his evidence, and certainly not that it drew an inference which was jurisdictionally unavailable to it.

GROUND FOUR

21. Ground four focussed on the passage in paragraph 7 of the above extract above, in which the Tribunal refers to the applicant as having a concern about making a living in Punjab and about the financial hardship he and his family may have to endure if they try to resettle in their country. It was submitted that nowhere in the transcript was such a concern referred to by the applicant, so that the Tribunal's reasoning was not based on evidence. Reference was made to the obligations under s.430 of the Act, but I could not understand how this helped the applicant's argument.

22. The short answer to this Ground, in my opinion, is that the end of the transcript of the hearing in fact shows the applicant raising with the Tribunal a plea that they not to be forced to return to India on the grounds that: "I don't have money or I would use it. It's very hard to find a job there." And: "We don't have any property, no home."

23. I therefore think it was open to the Tribunal to recognise the applicant's economic concerns as well as his security concerns. I do not read this passage of the Tribunal's reasoning as revealing any material error of fact or law, and certainly not jurisdictional error.

GROUND FIVE

24. Ground five argued that the Tribunal was in breach of requirements of procedural fairness, revealed in the highlighted sentence at the start of in paragraph 7 of the extract. It was argued that the Tribunal did not raise with the applicant nor give him any other opportunity to answer the "independent information" which the Tribunal said: "
;indicates that Sikh people are able to and do participate actively in all walks of Indian life.&
quot;

25. In my view, no breach of procedural fairness is established by the applicant in this respect. At all times the applicant was fully aware that the question of how Sikh people are treated in India at the time of the Tribunal's decision was a matter for consideration in the proceedings. The applicant's own statements in support of his visa application had raised this concern. In contradiction, the delegate's decision recited a variety of information from various sources, including, in paragraph 3.4.1, reference to a large number of Sikhs living peacefully and successfully throughout India. Further, the Tribunal, in the course of the transcript, raised with the applicant at several points that there had been a change of circumstances in India and in the Punjab in relation to Sikhs since the episodes in the 1980's and early 1990's when he had been persecuted.

26. I consider that the applicant was given ample opportunity to put forward any information concerning this which he wished to put, and to respond to the information relied upon by the delegate. He was given sufficient notice that the Tribunal might form a view that Sikh people, at the time of the Tribunal's decision, were participating actively in all walks of Indian life.

27. The applicant's counsel sought to argue a breach of the obligation under s.424A(1) of the Migration Act for the Tribunal to:

give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information the Tribunal considers would be the reason or part of the reason for affirming the decision that is under review; and ... invite the applicant to comment upon it.

28. In my opinion, the short answer to this submission is that this duty would not apply to the general country information which the Tribunal has relied upon when making this finding and which it identified earlier in its reasons, since the obligation under s.424A(1) does not extend to information that is not specific to the applicant but is general in nature (see s.424A(3)(a) as interpreted in Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264.

I therefore do not accept this ground.

29. Since all grounds argued before me have failed, I shall dismiss the application.

RECORDED : NOT TRANSCRIBED

30. I shall uphold the notice of objection to competency since as a result of my above conclusions the decision under review is a privative clause decision for which relief is barred under s.474(1). The application is also out of time under s.477(1A).

RECORDED : NOT TRANSCRIBED

31. I order the applicant pay the respondent's costs in the sum of $5500

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date:
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