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MIGRATION - Review of decision of the RRT - application for a protection visa - whether the applicant has a well-founded fear of persecution for reasons of political opinion - where the applicant claimed that his wife and children had been murdered - where the applicant had returned to his country on a number of occasions - where there was delay in lodging his application for a protection visa - where the Tribunal made factual errors in findings - where these errors led the Tribunal to make adverse findings about the applicant's credibility - whether the claim about his wife and children was a recent invention - where the Tribunal considered country information that had not been shown to the applicant - whether there is reviewable error in the decision.

SZADS v Minister for Immigration [2003] FMCA 231 (3 July 2003)

SZADS v Minister for Immigration [2003] FMCA 231 (3 July 2003)
Last Updated: 7 July 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZADS v MINISTER FOR IMMIGRATION
[2003] FMCA 231



MIGRATION - Review of decision of the RRT - application for a protection visa - whether the applicant has a well-founded fear of persecution for reasons of political opinion - where the applicant claimed that his wife and children had been murdered - where the applicant had returned to his country on a number of occasions - where there was delay in lodging his application for a protection visa - where the Tribunal made factual errors in findings - where these errors led the Tribunal to make adverse findings about the applicant's credibility - whether the claim about his wife and children was a recent invention - where the Tribunal considered country information that had not been shown to the applicant - whether there is reviewable error in the decision.



Migration Act 1958 (Cth), ss.48A, 424A(1), 424A(3)(a)

Krimo v Minister for Immigration (Unreported FCA 4 July 1997)

Craig v South Australia (1995) 184 CLR 163

Muin v Refugee Review Tribunal (1991) 90 ALR 60

VBAC v Minister for Immigration [2003] FCA 205

Hathaway "The Law of Refugee Status" (1991) Butterworths at 84-86

Taylor, "Informational Deficiencies Affecting Refugee Status Determinations: Sources and Solutions" (1994) 13 University of Tasmania Law Review 43

Kneebone, "The Refugee Review Tribunal and the Assessment of Credibility: An Inquisitorial Role? (1998) 5 Australian Journal of Administrative Law 78

Applicant:
SZADS



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 137 of 2003



Delivered on:


3 July 2003



Delivered at:


Sydney



Hearing date:


22 May 2003 - Final submissions received 6 June 2003



Judgment of:


Raphael FM


REPRESENTATION

Counsel for the Applicant:


Mr I Archibald



Counsel for the Respondent:


Mr J Smith



Solicitors for the Respondent:


Sparke Helmore Solicitors



ORDERS

(1) Application dismissed.

(2) Applicant to pay respondent's costs in the sum of $4,250.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 137 of 2003

SZADS


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant in this matter arrived in Australia on 23 March 2002. On 21 November 2002 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs. On 29 November 2002 the Minister refused to grant the protection visa and on 9 December 2002 the applicant applied for review of that decision. The applicant was interviewed by the Refugee Review Tribunal on 17 January 2003. The same day the Tribunal made its decision to affirm the original decision of the delegate. The applicant was advised of the decision on 20 January 2003.

2. This application for protection, which was declined by the delegate and the RRT, was not the first such application made by the applicant. On 18 August 2000 the applicant had made a claim for a protection visa which was declined by the delegate and considered by the Tribunal in January 2002. The applicant was invited to appear before that Tribunal, but, though he said he intended to do so, did not actually attend. On

31 January 2002 the Tribunal made a decision to affirm the first decision of the delegate. The applicant then made arrangements to leave the country. He landed at Kuala Lumpur. He informed the Tribunal that whilst in Kuala Lumpur he had a telephone conversation with his parents who warned him against coming home so he returned to Australia. He was taken into immigration detention upon arrival. He claimed to have returned to Australia using a false passport and was interviewed by immigration, and he says, by the Federal Police in relation thereto. He received legal advice from a solicitor in relation to this matter. He says that his solicitor advised him that it was not necessary for him to make an application for a protection visa at that time.

3. The Tribunal found that the applicant was born in Bhandal Himmat, Punjab on 22 November 1961. It found that the applicant was a Sikh who reads, speaks and writes Punjabi and Hindi. He had completed 12 years of education. Between 1992 to 2002 he lived in Dubai, Oman and other parts of the Middle East and Australia and he left India legally via Bombay in October 1984. The applicant claimed that he had a well-founded fear of persecution for the convention reason of political opinion because prior to leaving India he had been an active member of the Sikh Student Federation in Jalandhar. In October 1983 he had been arrested and detained by local police and was tortured. He paid a large bribe of 75,000.00Rs to obtain his release. After his release the police continued to harass him and his family and they took his parent's to the police station where they were threatened. The applicant relocated to New Delhi but was found there and harassment continued from his political opponents. He obtained an Indian passport from a Mr Cheema and with it a visa to travel to Oman. He paid 1000.00Rs to secure his departure from India and then resided in the Middle East.

4. The applicant claimed that since leaving India in 1984 he returned on a number of occasions but he could never visit his hometown. He spent most of his time in Bombay or New Delhi. In 1993 he returned to India and got married. He stayed for 4 weeks and then returned to the Middle East but did not visit his hometown. His wife remained with his parents. He claims that she was harassed by his opponents as well.

5. The applicant claimed that on 25 July 1997 some unknown people entered the home and the family were brutally assaulted. His wife and two children were murdered. His father had a heart attack and his mother was required to undergo surgery. The applicant claims that he was unable to return home to attend the funeral due to his fear of his opponents and the authorities. He believes that the political situation in the Punjab is such that he will receive no protection from the authorities.

6. The claims made by the applicant are very serious. It is not often that an applicant will claim that his wife and children had been murdered. The applicant made this claim in his first application for asylum at [CB 17]. There he stated:

"Our house was attacked by the security forces on 25th July 1997 and in this attack my wife and two sons were killed in that attacked. This is one of the many incidents whom forced me to leave India."

7. The applicant did attend a hearing before this Tribunal. At [CB 172] the Tribunal states:

"The Tribunal finds that the applicant is not a credible witness. Many of the key aspects of his testimony and his claims were simply not plausible. Some of his testimony and some of his claims was vague, not sufficiently-detailed to be believable or confusing. There were a number of recent inventions. There were a number of material contradictions and inconsistencies, which were not explained to the Tribunal's satisfaction. Some of his key claims were at odds with the independent evidence. In these circumstances, for the following reasons the Tribunal finds that his claims are not credible and does not accept most of them."

From [CB 173 - 178] the Tribunal deals with the applicant's credibility. At [CB 178] it then proceeds to find that he did not have a well-founded fear of persecution for a convention reason because:

"On his own evidence, he was only an unelected and ordinary member of the Sikh Student Federation. He therefore only had a low-level political profile, at best. This is consistent with the view that he was not of significant interest to the authorities, since according to his testimony during the hearing before the Tribunal he was allowed to legally leave the country and return on many occasions without any adverse consequences."

The Tribunal went on to find that as the applicant was allowed to leave the country legally in 1984 the authorities would not have been sufficiently interested in him then and even less likely to be interested in him now, some 20 years later.

8. At the hearing before me the applicant reproduced in his written submissions a number of extracts from the interview with the Tribunal. The respondent agreed that these extracts are a broadly accurate transcription of those portions of the proceedings on 17 January 2003.

I considered these submissions at the hearing which took place before me on 22 May 2003 and ordered that the parties file further written submissions which the applicant did on 30 May 2003 and the respondent did on 6 June 2003. The applicant's submissions contained a helpful summary of the submissions made at the hearing and I propose to deal with the matter by reference to the headings in those submissions.

Delay in lodging the application

9. The Tribunal noted that the applicant arrived in Australia on 23 March 2002 but did not lodge an application for a protection visa for some

8 months until 21 November 2002.

"The applicant stated that he waited so long before applying for a protection visa because he was being interviewed by the Federal Police in connection with a false passport and his solicitor advised him there would be no need to lodge a protection visa application at that particular time. The Tribunal is of the view that the answers to these questions are relevant in assessing the applicant's credibility...

The Tribunal finds that the applicant has not provided a satisfactory explanation for the very long delay in question. The Tribunal is aware that it can take some time for refugee claimants to obtain the necessary information about the Australian refugee determination procedure before lodging an application for a protection visa. But it does not accept that it would take the applicant 8 months before lodging his application for a protection visa if he had a fear of persecution at the time of his arrival in 2002, since he had come to Australia previously in 2000, when his first protection visa application was lodged only three weeks later and since he was assisted by a migration agent during the first review application before the Tribunal. As well, he had ample opportunity to seek the services of a migration agent or legal practitioner during that 8 month period, or to present himself to the Department for the purpose of obtaining information about whether or not he could obtain the protection of Australia."

The Tribunal found that because he didn't apply for a bridging visa to obtain his release from detention that the applicant did not believe that his solicitor would be getting him released and the fact that he took so long before making the second application was consistent with a view that he did not have the necessary subjective fear of persecution.

10. An affidavit dated 8 May 2003 by Michael Terence Jones, the applicant's former solicitor was filed in court. This affidavit indicates that Mr Jones was under the impression that the applicant would not be allowed to make a second application for asylum because of the provisions of s.48A of the Migration Act 1958 (Cth) ("the Migration Act"). It does, to some extent, provide an explanation for the delay which the Tribunal found so incredible. The problem is that this was not evidence before the Tribunal. In the applicant's submissions it is argued that in making the finding that the applicant had not provided a satisfactory explanation for the very long delay the Tribunal had failed to give adequate weight to, or in the alternative to take account of, a relevant factor of great importance. Therefore the Tribunal misdirected itself at law on a matter which affected its decision.

11. The Tribunal can only deal with the evidence which is before it. Had the applicant provided the affidavit, which it provided to the court, to the Tribunal then the Tribunal may have come to a different conclusion. But in the absence of anything but an uncorroborated statement from the applicant about what his solicitor had told him, the Tribunal was entitled to consider the factors which it claimed bore upon its decision and come to the view that the explanation was not satisfactory. As the Tribunal itself noted in Krimo v Minister for Immigration (Unreported FCA 4 July 1997) per Sackville J, His Honour stated:

"Undoubtedly it is correct to say that the Tribunal could take into account a delay in applying for refugee status where assessing the credibility of the applicant's account of events."

I am unable to find any reviewable error in what occurred in this regard.

The applicant's political position

12. The applicant submitted that there was no proper basis for the Tribunal to find that he was only an ordinary member of the Sikh Student Federation. At [CB 178] the Tribunal said:

"On his own evidence, he was only an unelected and ordinary member of the Sikh Student Federation. He therefore only had a low-level political profile, at best."

At [CB 158] the evidence given is set out:

"When asked in which year he became an active member of the Sikh Student Federation he stated; "I don't remember." When asked what his activities were he stated; "I put up posters, in the meetings I organised the food and similar activities." It was therefore suggested that he was only an ordinary member, rather than a leader, to which he stated; "I was one of the main persons, because I organised everything." It was pointed out that he did not have an elected position, however. In response he stated; "All the activities happened through me, like organising demonstrations." When asked why he was arrested in 1983 he stated; " There were people against us, and people started to hate us." It was pointed out that this claim was not included in his first protection visa application and therefore, appeared to be a recent invention."

The applicant submits there was no evidence for the finding that the applicant was only an ordinary member and not a leader. He points to what he says is his uncontradicted evidence about his duties. Certainly the words used were uncontradicted. However, those words are capable of being interpreted by the Tribunal, which is entitled (in the absence of a constitution or of a statement that the applicant was the holder of a particular and easily comprehended position, such as secretary or president) to make its own decision on whether the tasks the applicant says he undertook are tasks which an ordinary member or a senior operative would undertake. Bearing in mind the Tribunal's concern at the possibility of recent invention the finding that the applicant had "only a low-level political profile, at best," was available to the Tribunal.

The two statements

13. The applicant pointed out that during the hearing the Tribunal frequently compared the statement which the applicant had written in support of his first application found at [CB 17] and the typed statement in support of his second application found at [CB 91]. I set out below part of the applicant's original written submissions because they include extracts from the transcript which the respondent has accepted as broadly accurate.

"31. At the Tribunal hearing, the evidence was that the Tribunal said Mr Singh, you made no claim in your first protection visa application lodged in 2000 that you were arrested in 1983. That is a very significant claim to make. That you were arrested by the authorities...you arrived for the first time on 29 July 2000 and therefore you have had ample opportunity, more than ample opportunity to make the claim that you were arrested in 1983 and therefore it seems to me to be a recent invention."

32. The applicant, through the translator, then says At that time,

I did mention that I had a lot of problems and there were a lot of things which have been cleared now and they were not clear that what is required...At that time there was no one assisting me.

I didn't really know what to write and how to do this...

33. The Tribunal says No Mr Singh I don't accept that and now you are telling a lie. And I am going to put this to you. Because in your first application that you lodged in 2000 you had a migration agent helping you with preparation of the application. So yes, somebody was helping you in 2000 and you would have put that claim in about your arrest if it had happened.

34. The Tribunal had no basis for asserting that what the applicant said was a lie, nor did the Tribunal have any basis for asserting that in relation to the preparation of the application the applicant had assistance in 2000.

35. At RD7, in answer to the question, Did you receive help completing this form? The answer given by the applicant is No.

36. No record of a migration agent appears in 2000 until the Application for Review is lodged with the Tribunal.

37. In addition, the statement in support of the first application (RD17) is a handwritten statement of one paragraph only.

38. In that statement the applicant says I was the target of security forces in India and have faced persecution. Our house was attacked by the security forces on pointy 5 July 1997 and in this attack my wife and two sons were killed in that attack. This is one of the many incidents which forced me to leave India.

39. The 1983 arrest is quite consistent with this statement. The statement on its face does not appear to be an attempt to recount all the instances of persecution which the applicant may have experienced. An arrest and detention is quite consistent with

I was the target of the security forces in India and have faced persecution. The statement forms no basis for the Tribunal to conclude that the applicant is lying."

14. The applicant complains that this error on the part of the Tribunal did materially affect the Tribunal's view about his credibility. The applicant argues that this mistaken view about his credibility, based upon the Tribunal's own misunderstanding as to the assistance the applicant received from a migration agent, is highlighted by the use of the words by the Tribunal "I don't accept that and now you're telling a lie." But the applicant's concerns about the comparison of the two statements does not end there. The Tribunal, possibly influenced by its views on the applicant's credibility based on the matters previously recited, then looks for other areas in which the two statements are not consistent. There is in fact no inconsistency only that the second statement is more detailed then the first. The only area in which there is an apparent inconsistency, which the Tribunal describes as a "material contradiction which had not been explained to its satisfaction" was that in the first statement the applicant said that unknown people had come to his family home and there assaulted and murdered his wife and children and in the second statement he claimed it was the security forces. The Tribunal demanded an explanation for what it saw as "this material contradiction" and is confirmed in its view as to the credibility of the applicant when none appears. The applicant's explanation is that in the first, and very short statement, he wrote down what he was told by his family some three years earlier. In the second statement which was a much longer document written two years later (again without legal advice and similarly based upon hearsay) he tells what he recalls he was told about the events that occurred some seven years previously.

15. In Craig v South Australia (1995) 184 CLR 163 the High Court stated 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 effected, it exceeds its authorities or powers. Such an error of law is jurisdictional error which would invalidate any order or decision of the Tribunal which reflects it."

16. It seems to me that taking into account the strictures on the evidence of refugees found in a much quoted extract from Professor Hathaway's, "The Law of Refugee Status" (1991) Butterworths at 84-86 and in Taylor, "Informational Deficiencies Affecting Refugee Status Determinations: Sources and Solutions" (1994) 13 University of Tasmania Law Review 43 and Kneebone, "The Refugee Review Tribunal and the Assessment of Credibility: An Inquisitorial Role? (1998) 5 Australian Journal of Administrative Law 78 that the Tribunal here did fall into error by making an erroneous finding or reaching a mistaken conclusion. It first came to an erroneous finding about the applicant's use of a migration agent in the preparation of his statements. It used that erroneous finding to support its views about the lack of credibility of the applicant. Then on the basis of those views turned what otherwise might be seen as no more than a difference in language into a "material contradiction" which further damned the applicant's credibility.

Return to the home town

17. The Tribunal makes another finding of a material contradiction in relation to this matter at [CB 175/176] the Tribunal states this:

"In the protection visa application the applicant claimed that members of an opposition group found out where he was in Delhi and harassed him there, therefore he returned to his home town. This claim was not included in the first protection visa application. The Tribunal does not accept that his parents did not tell him about this because they did not want to upset him, as claimed during the hearing, because his claim was that he had been harassed on this occasion. Therefore the Tribunal finds that it is a recent invention, and does not accept it. This finding is strengthened by the fact that whereas the applicant claimed in his protection visa application that he returned to his home town, during the hearing he stated that after leaving for Delhi he went to Bombay and never returned to his home town. The Tribunal finds that this is a material contradiction, which the applicant has not explained to its satisfaction. The applicant explanation - that he never went back to his home town, rather he went to Delhi and then Bombay - is not satisfactory, because it did not seek to explain the contradiction."

The Tribunal has once again read something into the applicant's statement which does not appear to be there. The applicant did not say in his statement that he returned to his hometown he stated at [CB 91]:

"Members of the opposition group came to know about my whereabouts and commenced to harass me in New Delhi then I decide to go back to my home town. My family advised me to leave India."

It is difficult to see how the Tribunal could have come to the conclusion that what occurred constituted a material contradiction on the part of the applicant. The applicant was questioned upon the following lines:

"You then state that after staying in Delhi, you return to your home town, a moment ago you said that after you went to Delhi you went to Bombay and then you left India. What is the truth again Mr Singh because you are contradicting yourself.

I never went back to my hometown. I went to Delhi to Bombay."

The reference of the Tribunal is to the statement which, as I have pointed out, does not say that he went back to his home town merely that he decided to do so and it would appear was put off by his parents. Once again the Tribunal has fallen into the error of misreading the evidence and then basing findings of credibility upon those misreadings.

The departure from India and the harassment of the wife

18. The Tribunal finds that the applicant left India legally in 1984. Although the applicant dealt in his statement and at the hearing with some arrangements between his father and a Mr Cheema he states in his first application that he left New Delhi on 13 August 1997 legally with a temporary residence visa to Abu Dhabi and Sharjaah (although he does say he had to bribe authorities for a passport). This was the only application in which that question was relevant because there was no doubt that the passport he travelled on the second time was not legal. In those circumstances the Tribunal did have evidence upon which it could have made the finding that it did.

19. In relation to the harassment of the applicant's wife, the Tribunal found it significant that he had not mentioned it in his first statement. The Tribunal found that it was a recent invention and did not accept it for that reason. It would be difficult not to be concerned about this finding. The form which the applicant completed and which is found at [CB 17] does not appear to encourage lengthy statements. But most importantly the applicant states without equivocation that his wife was killed. It is understandable that a person applying for refugee status might consider that this statement says it all and there is little point as adding as a make weight the fact that prior to her murder his wife was harassed.

20. On its own, the finding by the Tribunal that the claim that his wife had been harassed was a recent invention because it was not mentioned in the first application might be considered harsh but not erroneous. The difficulty lies with it coming after what I have found to be a series of erroneous findings which appear to have affected the Tribunal's views upon the applicant's credibility. A finding of recent invention is a finding on credibility. This finding must therefore be infected by the same error as the previous findings.

Independent country information

21. At the hearing the applicant made submissions concerning eight areas in which the Tribunal had utilised country information. I am satisfied that in all cases but one the information utilised and the questions which were put based upon it were of the type which the Tribunal has no duty to disclose to the applicant under s.424A(3). These matters were not pressed in the final written submission.

22. The one matter that was pressed was the following statement which was put to the applicant:

"The Tribunal also has country information that does not support your claim about the murder of your family and that would seem to be suggesting that the claim is not a credible claim."

The claim that his wife and children were murdered was made by the applicant in both of his statements. It is a very serious claim to make. It is a shocking claim to make if it is untrue. I have absolutely no doubt that evidence about such a claim is the very type of evidence which the Tribunal is required to put directly to the applicant by virtue of s.424A(1) of the Migration Act.

23. The reference to the incident in the reasons for decision is contained at [CB 160]:

"With respect to the applicant's claim that on 25 July 1997 some unknown people entered his family home and all his family were brutally assaulted, it was pointed out that this claim contradicted the claim in his first protection visa application that it was the security forces who took part. In response he stated: "Both applications were filled in as I was told by my parents and family members. I wasn't physically there."

And again at [CB 177]:

"In the protection visa application the applicant claimed that on 25 July 1997 unknown people entered his family home and brutally assaulted all his family. During this incident his wife and two children were murdered. But in the first protection visa application he claimed that it was the security forces who took part in this incident. The Tribunal finds that this is a material contradiction, which has not been explained to the Tribunal's satisfaction. The applicant's explanation - that his two applications were completed as per what his family told him - is unsatisfactory, because it did not explain this contradiction. During the hearing the applicant referred to the alleged murder of his wife and two children, but without expressing even the faintest of emotions. The Tribunal does not accept as plausible that the applicant would not express any emotion at all in this regard, especially since he also claimed that his father had a heart attack and his mother had to undergo surgery twice at the time. Therefore, the Tribunal does not accept his claim."

There is nothing here to suggest that the Tribunal put any country information concerning the murder of his family to the applicant. The Tribunal appears to come to the conclusion that the murder did not take place because the applicant stated in his first statement that the security forces took part in the incident but in the second statement he stated that the persons were unknown. But the Tribunal does not say that this is the exclusive reason why it came to that view. It appeared to doubt the applicant's credibility because he showed no emotion. It may well have come to that view by reference to certain country information about which neither the court nor the applicant were informed. In Muin v Refugee Review Tribunal (1991) 90 ALR 60 Gauldron J at 64 said:

"There is a second aspect to procedural fairness...namely a requirement that an applicant for review be given a reasonable opportunity to answer any material in the possession of the Tribunal which suggests that he or she is not a refugee as defined in the convention."

In the same case Mc Hugh J said at [134]:

"In Miah I said:

"In some cases, exercises of power, although conditioned by the rules of natural justice, will not require that the applicant have an opportunity to comment on the material. Examples of material that would not require comment by the applicant would include non-adverse country information, favourable or corroborative information in the public domain and information based on the circumstances already described in the application. But there are cases where the exercise of this power does require that the applicant be given an opportunity to comment on the material. An example is where the delegate proposes to use new material of which the applicant may be unaware and which is or could be decisive against the applicant's claim for refugee status. The need for disclosure by the delegate is even stronger where the material concerns circumstances that have changed since the date of application and is being used after considerable delay. It is stronger still when the material is equivocal or contains information that the applicant could not reasonably have expected to be used in the way the delegate uses it."

24. To tell someone that you have information that would seem to suggest that a claim that his wife was murdered is not a credible claim but then not to provide him with that information and expect him to respond would seem to me to be denying the applicant natural justice. The respondent argues that all that happened was that the Tribunal put to the applicant the conclusion it had come to from consideration of the country information. But we are not talking here about some generalised fear of persecution we are talking about a particular and (if true) horrific incident. If the Tribunal was prepared to take into account pieces of general country information to come to a view that a particular woman and her children were not murdered at a particular time in a particular place then the Tribunal must put that process of deduction to the applicant so that he can have an opportunity to refute it. The respondent would argue that the Tribunal's reasons for decision would seem to indicate that it did not utilise the material in the way in which it was put to the applicant. Certainly there is no reference to other country information and the finding of the Tribunal upon this incident appears to be based in great part upon the alleged inconsistency in the statement. But can one be sure of that? Natural justice requires that a court reviewing such a decision does more than utter a pious hope that the Tribunal meant nothing by its earlier statements to the applicant and relied not at all upon the alleged information.

25. The applicant reproduces two examples of questions which might be said to indicate the type of information which the Tribunal was referring to. The first was:

"The Tribunal also has a report, the most recent report from the United Kingdom of October 2002 which says that rank and file members of groups which were at one time targeted, for example the All India Sikh Student Federation are in general terms now safe. Again that would seem to suggest that your claims are at odd with that evidence. Would you like to comment?"

The first point to make about this statement that there is no evidence that the document was shown to the applicant. The document is found at [CB 369-427]. One should note immediately that this is an up to date report dealing with the situation shortly before it was published. The incident concerning the applicant's wife was alleged to have occurred in 1997. At [CB 387] the report says:

"Amnesty International detected a pattern to the arrests, detentions, torture and disappearances which they reported. They concluded that Sikh's were often arrested on mere suspicion that they were linked to armed secessionist groups. Family members of suspects were arbitrarily detained and tortured in order to extract information about the suspect's whereabouts or activities. Amnesty said that women had been arrested and tortured simply to deter them from giving food and shelter to Sikh militants and...Amnesty International also reported that hundreds of members or sympathisers of armed Sikh groups were allegedly captured, sometimes tortured, and then extra-judicially executed, the killings attributed by the police to armed "encounters." Amnesty stated that the police repeatedly frustrated attempts to bring those accused of human rights violations to justice."

These extracts would appear to refer to activities taking place up to the mid-1990's. There is no clear evidence what the situation was in 1997. The same report does say:

"Sikh's do not constitute a persecuted group at the present time, and rank and file members of groups that were at one time targeted eg the AISSF, are in general terms now safe. There are exceptions such as people with a local history of abuse at the hands of the police, who may continue a personal vendetta; and militants together with their close relatives and supporters who continued to be followed as potential seeds for further rebellion."

Whilst there is other evidence such as the report of Professor Cynthia Mahmood found at [CB 365-366] that would tend to indicate that there are still problems for Sikh's I have been unable to find any evidence reproduced in the court book from which the Tribunal would be able to deduce that it was unlikely that a murder took place in 1997.

26. In VBAC v Minister for Immigration [2003] FCA 205 Ryan J looks at the application of two recent High Court decisions, Re Minister for Immigration & Multicultural and Indigenous Affairs & Anor; Ex parte Applicants S134/2002 [2003] HCA 1 and Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2, in particular, the limited circumstances in which a denial of procedural fairness will be held to be a jurisdictional error. At [28] he states:

"In this limited sense, a denial of procedural fairness can constitute jurisdictional error, but not every case will disclose such a denial. What is required is more than an infraction of a rule of natural justice; it is a failure to exercise a jurisdiction, which the Tribunal was bound to exercise, in the manner in which it was bound to do so." (emphasis added)

27. I am satisfied that the Tribunal failed to comply with its obligations under s.424(1) to put to the applicant the relevant information which it had that might indicate that his wife and children had not been murdered. If, as the respondent argues, the Tribunal was merely putting to the applicant its conclusion based upon an amalgam of country information and views about the applicant's credibility then I would take the view that such a conclusion could not reasonably have been drawn on the basis of the errors concerning the applicant's credibility which I have pointed out earlier. This occurred not on the result of a lack of credibility, but a lack evidence.

28. It might be argued that the conclusions reached by the Tribunal in relation to the "real chance of persecution" were predicated upon the Tribunal accepting the applicant's claims including the claim that his wife and children were murdered. It might then be suggested that such a finding was inconsistent with the non-existence of a "real chance". This may well have been the case if the applicant had established that the murders were carried out for a convention reason (or possibly a non-convention reason if the applicant could have proved that he was likely to suffer the same fate and would not receive effective protection from the Indian Government) but the applicant did not satisfy the Tribunal as to those matters.

29. If the Tribunal's reasons for decision had concluded at this point

I would have found that the errors to which I have pointed constituted jurisdictional errors that directly bore on the making of the decision. As such I would have found the decision to have been invalid and required the matter to be referred back to the Tribunal differently constituted to be heard in accordance with law. However, at [CB 178] the Tribunal says this:

"However, even if the Tribunal has arrived at the wrong conclusion as to the applicant's credibility, and it were to accept that the applicant's claims are credible and to accept his claims of past events, it finds that the applicant does not have a well founded fear of persecution for a Convention reason.

The Tribunal finds that the chance that the applicant will be persecuted for reasons of his political opinion, religion, race or for any other Convention reason is remote at best. On his own evidence, he was only an unelected and ordinary member of the Sikh Student Federation. He therefore only had a low-level political profile, at best. This is consistent with the view that he was not of sufficient interest to the authorities, since according to his testimony during the hearing before the Tribunal he was allowed to legally leave the country and return on many occasions without any adverse consequences.

If the Indian authorities were not sufficiently-interested in him in 1984, when he was able to leave India legally, it is even less likely that they would be interested in him now, almost two decades later, and in the absence of any evidence that he has engaged in activities in Australia which could be construed as constituting evidence that he could be perceived as a sur place refugee. Therefore, the Tribunal is not satisfied that the applicant was or is of sufficient interest to the Indian authorities for political or other reasons, and is not satisfied that he has a well-founded fear of persecution for reasons of actual or imputed political opinion or any other Convention reason."

30. In the following two paragraphs the Tribunal provides further reasons based upon available country information to support these findings. These findings are not reliant in any way upon the credibility of the applicant. There is therefore no link between the jurisdictional errors to which I have previously referred and these findings. The findings were clearly available to the Tribunal and provide in themselves a reason for upholding the decision of the delegate not to grant the applicant a protection visa. In these circumstances, notwithstanding the criticisms which I have made of the Tribunal's procedures in relation to the credibility issue I would find that there are no grounds to set aside the decision and would accordingly dismiss the application and order that the applicant pay the respondent's costs which I assess in the sum of $4,250.00 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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