FEDERAL COURT OF AUSTRALIA

SZCDK v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 1217

SZCDK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

NSD 823 OF 2005

STONE J

7 SEPTEMBER 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

The appeal be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This is an appeal from the judgment of a Federal Magistrate delivered on 10 May 2005 dismissing an application for review of a decision of the Refugee Review Tribunal (‘Tribunal’) made on 3 November 2003 and handed down on 27 November 2003.  The Tribunal affirmed a decision of a delegate of the first respondent to refuse to grant the appellant a protection visa.

Background

2                     The appellant, a citizen of India, arrived in Australia on 15 February 1992 on a visa to remain in Australia until 29 February 1992.  On 3 October 2002, she lodged an application for a Protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs.  On 22 April 2003, the delegate of the first respondent refused the application.

3                     The appellant’s claims that as a Sikh she would suffer persecution by the Hindu and Muslim activists and by the Sikh Militant Movement on account of her Sikh religious beliefs. 

4                     In her protection visa application, the appellant claimed that she had been practising her religion since she was a child.  After completing ten years of schooling she joined her father, a well-known Sikh religious leader, to assist him with his religious activities.  This, according to the appellant, involved travelling from one village to another within the Punjab to ‘spread the Sikh religion’.  The appellant stated that she and her father were, between 1985 and 1988, ‘some of the leaders of the Sikh religion who attended various conferences and mounted campaigns in the Punjab area’.

5                     The appellant claimed that her father’s activities and her families’ general religious beliefs made them a target for Hindus and Muslims.  She stated that her family were harassed in mid- and late-1988 on ‘several occasions’.  In the most serious of these, the appellant claimed that her father was ‘assassinated’ by Hindu activists because of his involvement in the Sikh religion.  She stated that prior to her father’s murder the family had received messages from ‘these assassins’ some of whom were said to be Hindus and other Muslims.  Her father was warned to ‘quit the religion’ because the family was imputed with the religious beliefs of Sikh militants. 

6                     The appellant claimed in her protection visa application that after her father’s murder she continued his religious activities because of her strong faith in the religion.  She stated that in early 1989 she survived an ‘attempted assassination’ and subsequently received a message that she would be killed just as her father was if she continued her religious activities. 

7                     In addition, the appellant claimed that as a result of her father’s death her family had no means of earning a living and consequently she was forced to marry a man, a Sikh religious leader, who she moved in with.  While living with her husband and her in-laws, she ‘noted that they were members of the Sikh Militant Movement’.  After attempting to convince her husband to cease such activities, she claimed that he threatened to kill her.  The appellant stated that she then divorced him and ran away in late 1990.

8                     The appellant claimed that on her return to her family’s home she was threatened by the Sikh Militant Movement and in December 1991 her family’s home was attacked and destroyed.  She stated that she escaped death because she was not home at the time.

9                     The appellant stated that in these circumstances she decided to leave the Punjab as the Sikh Militant Movement was so strong that the authorities could not control them.  In support of this the appellant claimed that despite reporting her father’s murder to police, as well as all of the threats to her family, the police did nothing as they were ‘scared’ of the Sikh Militant Movement.  The appellant therefore obtained a visa to visit Australia in 1992 and ‘fled from India’.

10                  In a statement attached to her protection visa application, the appellant stated that since her arrival in Australia in 1992 she had been monitoring the situation at home ‘with much interest’.  Family and friends advised her that religious conflicts were continuing.  The appellant also stated in her visa application that she had been in communication with her mother and sister who had advised her not to return to India because it was not safe for her to do so.  The appellant claimed that despite the time that had elapsed since her departure from India, her mother and sister had advised that the Sikh Militant Movement was still interested in her and ‘would kill me whenever that they see me, irrespective of the number of years that it takes’.

11                  In this statement, the appellant also claimed that relocation within India was unreasonable as she had no skills to utilise to earn a living.

The Tribunal’s reasons

12                  By letter dated 26 August 2003, the Tribunal wrote to the appellant informing her that it was unable to make a decision in her favour on the basis of the information before it.  The appellant was therefore invited to a hearing before the Tribunal.  In its letter the Tribunal also stated that if she did not attend the hearing and the Tribunal did not postpone it, the Tribunal could make a decision on her review application without further notice and invited the appellant to send it any new documents or written arguments she wanted the Tribunal to consider.

13                  On 15 September 2003, the Tribunal received a Response to Hearing Invitation form on which the appellant indicated that she did not wish to come to the hearing and consented to the making of a decision on her review without any further action being taken to allow or enable her to appear before the Tribunal. 

14                  In its reasons, the Tribunal stated that the appellant had not explained, to its satisfaction, her reasons for remaining in Australia for ten years and the delay in applying for a protection visa.  It placed weight on her failure to apply early as indicating a lack of subjective fear of persecution.  The Tribunal was also unable to be satisfied of the following matters without further information from the appellant:

(a)               that her father was a religious leader;

(b)               that her father was assassinated;

(c)               that there was an attempted assassination directed at her because of her religious activity; or

(d)               that she was a divorced woman whose husband and family members were members of the Sikh Militant Movement.

15                  According to independent country information referred to by the Tribunal, the situation in the Punjab had improved after 1992 and Sikh people were no longer targeted in the Punjab by police.  The Tribunal also noted that the conflict in the Punjab was largely over before the appellant came to Australia in 1992.

16                  The Tribunal accepted independent country information indicating that as at the time of the decision Sikhs were not at risk of political persecution in the Punjab or India for participating in peaceful, legitimate political activities or conducting prayers or peaching Sikh religion. 

17                  The Tribunal noted that Sikhs were able to live in other parts of India, aside from the Punjab, without fear of harm.  It was not satisfied that the appellant remained unable to relocate within India in view of independent country information it accepted as accurate and ‘her skills and ability living in Australia’ for a number of years.

18                  The Tribunal concluded as follows:

‘Therefore, in view of the independent evidence (cited above) and the implausibility of the applicant’s claims in the light of this information, without further information from the applicant I am not satisfied that her claims are genuine or that her [fears] are Convention related.

As I have found the applicant has not been harassed or harmed for a Convention reason in India, I am therefore not satisfied that the applicant has a well-founded fear of Convention-based persecution on her return to India.’

19                  The Tribunal therefore affirmed the delegate’s decision not to grant the appellant a protection visa.

The judgment of the Federal Magistrate

20                  In the Federal Magistrates Court the appellant pressed seven grounds of review.  First, that the Tribunal should have given her the opportunity to comment on the independent country information it relied on and did not investigate her claims in detail.  Secondly, the consistency between the decision of the delegate and the Tribunal placed in question the Tribunal’s independence.  Thirdly, that relocation within India was unreasonable because of the widespread abuse of Sikhs.  Fourthly, that there was no evidence or material before the Tribunal to justify its finding that the appellant had sufficient skills to be employable in relation to relocation.  Fifthly, that the Tribunal misconstrued the term ‘refugee’ in failing to consider whether the Indian authorities were unwilling or unable to protect her.  Sixthly, that the Tribunal misdirected itself by asking itself the wrong question.  Finally, that the Tribunal failed to take into account relevant considerations because it found she could relocate and the material showed it was impractical unless she had the financial means to do so.

21                  The Federal Magistrate held that the first ground of review could not be sustained in view of ss 422B and 424A(3)(a) of the Migration Act 1958 (Cth) (‘the Act’) and the general nature of the information.  Further, his Honour held that the Tribunal does not have a positive duty to pursue inquiries: see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20].

22                  There was no doubt in his Honour’s mind that the Tribunal had undertaken the proper performance of its task and the mere fact that it affirmed the delegate’s decision was not sufficient material to justify this claim.  Insofar as the appellant was claiming apprehended bias, his Honour also rejected this claim as unfounded.

23                  The third ground of review clearly took issue with the merits of the Tribunal’s decision and the Federal Magistrate rejected it accordingly.

24                  As to the fourth ground of review, his Honour held that this was based on a misreading of the Tribunal’s findings which were based on its failure to be satisfied that the appellant could not reasonably be expected to relocate, rather than a positive statement.

25                  In relation to the complaint of a failure to consider the effective protection, or lack thereof, from the authorities, the Federal Magistrate held that as the Tribunal found it was not satisfied in relation to her claims of persecution, there was no obligation or requirement to consider the issue of effective State protection.

26                  His Honour held that the claim that the Tribunal misdirected itself was entirely unparticularised and rejected it as lacking substance and that the claim of a failure to take into account relevant material was merely an attempt to challenge the merits of the Tribunal’s decision and he rejected it.

27                  For the reasons given above, the Federal Magistrate dismissed the application for review.

This appeal

28                  The notice of appeal from the judgment of the Federal Magistrate alleges, in essence, that his Honour failed to find errors of law, jurisdictional error and denial of procedural fairness.  The appellant has also referred to a number of cases of this Court and the High Court, however, without further elaboration.

29                  On 6 July 2005, I ordered that the appellant file and serve an amended notice of appeal giving complete particulars of each ground of appeal.  I further ordered that the appellant file and serve written submissions five days before the hearing.  The appellant has failed to comply with these orders.  As such, the Court is required to proceed on the basis of the notice of appeal as it stands.

30                  Without adequate particulars, it is difficult to determine the precise complaints the appellant makes about the Tribunal’s decision.  In my view, the Federal Magistrate dealt with each of the grounds of review raised below and rejected them appropriately.  At the hearing the appellant spoke most passionately about her predicament.  She said she had been a ‘good citizen’ during her time in Australia and of the difficulties that she would face should she be returned to India.  All of her submissions, however, concerned the Tribunal’s findings of fact and did not relate to any basis on which this Court would be entitled to interfere with the Tribunal’s decision.

31                  I cannot discern jurisdictional error in the Tribunal’s reasons and therefore I conclude that  the Federal Magistrate was correct to dismiss the application for review. 

32                  Consequently, the appeal must be dismissed with costs.

Associate:

Dated:              7 September 2005