FEDERAL COURT OF AUSTRALIA

SZBJH v Minister for Immigration and Citizenship [2008] FCA 501

MIGRATION – where Tribunal considered particular social group of “Sikh landowners” – where appellant had precisely identified the social group of which he claimed he was a member as being “Punjabi Sikh Jatt land owner” – whether in assessing appellant’s claim against the wider social group the Tribunal assessed the narrower claim – whether the issue of State protection was considered in relation to the particular social group of which the appellant claimed to be a member – appeal allowed.

Migration Act 1958 (Cth)

Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1cited

SZEOP v Minister for Immigration and Citizenship [2007] FCA 807 cited

SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435 cited

SVTB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 104 cited

SZBJH v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD1641 OF 2007

LANDER J

21 APRIL 2008

ADELAIDE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

1.         The appeal be allowed.

2.         The orders of the Federal Magistrates Court made on 3 August 2007 be set aside and in lieu thereof:

(a)        there be an order quashing the decision of the second respondent made on 21 March 2007 and handed down on 12 April 2007;

(b)        there be an order remitting the applicant’s application for judicial review of the decision made by the delegate of the first respondent on 28 June 2002 to refuse the applicant a Protection (Class XA) visa to the second respondent to be dealt with according to law;

(c)        the first respondent pay the applicant’s costs in the Federal Magistrates Court.

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

REASONS FOR JUDGMENT

Introduction

1                          This is an appeal against an order of a Federal Magistrate made on 3 August 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) made on 21 March 2007 and handed down on 12 April 2007.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship (as he is now known) (the first respondent) to refuse to grant a Protection (Class XA) visa to the appellant.

2                          The appellant is a citizen of India who was born on 15 February 1954.  He arrived in Australia on 3 July 2001.  On 10 August 2001 the appellant lodged an application for a protection visa.  On 28 June 2002 a delegate of the first respondent refused that application.  On 26 July 2002 the appellant applied to the Tribunal for a review of that decision.

3                          The Tribunal (differently constituted) affirmed the delegate’s decision on 7 July 2003 (handed down on 5 August 2003).  On 25 May 2005, upon review by the Federal Magistrates Court, the decision was quashed and the matter remitted to the Tribunal for reconsideration according to law.

4                          The second Tribunal also affirmed the delegate’s decision on 18 November 2005 (handed down on 8 December 2005) but, on 28 November 2006, that decision of the Tribunal was also set aside by an order of the Federal Magistrates Court and remitted to the Tribunal for reconsideration.  It is the decision of the third Tribunal that was the subject of the application to the Federal Magistrates Court for judicial review and the subject of this appeal.

Background

5                          The appellant claimed that he was born on 15 February 1954 in the Punjab State in India.  He was, whilst he lived in India, a self-employed farmer in his home village of Jhingran in the Jalandhar district in Punjab.  He is married with two children, though his wife and children remain in Punjab in India.  The appellant entered Australia in July 2001.

6                          In his protection visa application, the appellant claimed to have well-founded fear of persecution on the following grounds:

-          My religion Sikhism

-          Hindus for reasons of religion

-          By supporters of Shiv Sena [SS] and Bajrong Dal [BJD] parties on political grounds

-          Jealous landless Hindus

7                          The appellant stated that he and his family owned a very large farm in India which caused supporters of SS and BJD to be jealous of his wealth.  They abused and assaulted him and his family, and demanded he return the farm to the Hindus.  The appellant also claimed that his neighbour was a Hindu who had the police and authorities visit daily.  The appellant stated that the police said they would not act on his complaints because he and his family were “Sikh terrorists”.  He said that the police demanded money from him and his family and physically mistreated him when he refused to pay them.  The appellant claimed that in September 1999 people from the SS and BJD came to his door and, following an argument, after the appellant shut the door, they fired shots into his house.  He claimed that, after again complaining to the police, rather than any investigations being undertaken, he was detained and beaten instead.  He was apparently told “you are a Sikh terrorist and you have no right to be here.”

8                          On 19 February 2007 the appellant appeared before the third Tribunal and gave oral evidence.  The Tribunal had before it a letter alleged to be from the Consular-General of India in Sydney dated 8 September 2005.

9                          On 21 February 2007 the Tribunal sent a letter to the Indian Consulate, without identifying the appellant, seeking verification of that letter which referred to the appellant’s “refugee status”.  On 22 February 2007 the Tribunal received a reply from the Consulate advising that the letter was “fake with forged signatures and forged letter head”.  On 22 February 2007 the Tribunal sent a letter to the appellant pursuant to s 424A of the Migration Act 1958 (Cth) (the Act) inviting comment on the forged letter and noted that the information was relevant because “it may raise doubts about [the appellant’s] credibility and veracity of [his] claims.”  In a fax dated 14 March 2007 (received by the Tribunal on 19 March 2007) the appellant “vehemently” denied he was involved in writing the letter or, indeed, sending it to the Tribunal.

The Tribunal’s Decision

10                        The Tribunal accepted that the appellant had no involvement in the forged letter but found it was not evidence which could support the claim the appellant was of any interest to Indian authorities or that the Indian Consulate in Sydney had knowledge of the appellant’s protection visa application.

11                        The Tribunal found the appellant was not a credible witness based on the oral evidence he gave to the third Tribunal at hearing.  The Tribunal found that the appellant had fabricated aspects of his claims to enhance his application for a protection visa.  It found his evidence was inconsistent, evasive and vague; that it lacked dates and other important details; that his detention claims were implausible and unconvincing; and that the appellant’s delay between the main incident of harm in 1999 and his departure from India in 2001 raised doubts about his claims.  The Tribunal further noted that in his initial application for review in 2002 the appellant stated he would provide the Tribunal with “more comprehensive documents to support my claims”, however, five years later, no such documents had been provided to the Tribunal.  For those reasons, the Tribunal did not accept that the appellant suffered any of the claimed harm.

12                        Although the Tribunal accepted as plausible the appellant had a Hindu neighbour with whom he had a dispute over land, it rejected the claim that the appellant’s Sikh religion was the significant and essential reason for the conflict and instead found that the source of the conflict was longstanding animosity between the appellant and the Hindu neighbour.

13                        The Tribunal considered whether the appellant belonged to a particular social group of ‘Sikh landowners’ and found that, even if such a group were to exist, the reason for the appellant’s feared harm was not essentially or significantly related to membership of that social group but rather was private in nature.

14                        The Tribunal noted that harm feared by an appellant “must have an official quality” or that the government has failed to adequately protect an appellant from persecution.  In this case, the Tribunal was satisfied that independent country information supported a finding that there was no real chance of the appellant being persecuted because of his Sikh religion, particularly because Sikhs were a majority in Punjab.  The Tribunal also found that the appellant would be provided with State protection for any private harm that he feared.

15                        The Tribunal was therefore not satisfied that the appellant had a well-founded fear of persecution and affirmed the decision not to grant the appellant a protection visa.

Application in the Federal Magistrates Court

16                        On 6 July 2007 the appellant filed an amended application in the Federal Magistrates Court, which raised three grounds of review that were particularised:

1.         The Tribunal committed a jurisdictional error by misapprehending the applicants claim and failing to conduct a review the delegate’s decision in accordance with the particular social group that the applicant claims to be a member of / failing to address all integers of the claim.

2.         The Tribunal committed a jurisdictional error of law by failing to conduct a review of the delegate’s decision in accordance with the Act and law of evidence in relation to the finding of international standards of State protection at page 13 of the Tribunal’s decision.  Further of alternatively, in reaching its ultimate conclusion the Tribunal failed to have regard to relevant, correct and up to date information.

3.         Alternatively, the Tribunal committed a jurisdictional error of law by failing to take into account relevant consideration in its finding “that the applicant would be able to obtain State protection that would accord with international standards, for any private harm that he fears.” The Tribunal failed to relevantly consider whether State protection would be available for the appellant.

17                        The Federal Magistrate summarised the appellant’s first ground as referring to a misapprehension by the Tribunal of the claims of the appellant that he was only a Sikh landowner, when he was actually claiming to be part of a more specific social group, namely a Punjabi Sikh Jatt landowner, and that the latter social group was not considered by the Tribunal.  Therefore, it was argued that the Tribunal did not properly assess the risk of persecution against that group.  His Honour noted that in the appellant’s response to the s 424A letter the appellant said he was persecuted for being a Punjabi Sikh Jatt Landowner.  His Honour then assessed the Tribunal’s findings on the appellant’s claims and found (at [34] to [36]):

It is up to the Tribunal to ascertain both the nature of the persecution and the particular social group of which the Applicant claims to be a member.  It is perhaps unfortunate that the Tribunal only referred to the Applicant as being a member of a wider social group of Sikh landowners because indeed the Tribunal said at page 150:

The Tribunal has considered a particular social group of ‘Sikh landowners’.

However, it is clear that the Tribunal came to the conclusion that the harm feared was not essentially and significantly related to the Applicant's membership of that particular social group, albeit the wider group, but rather was private in nature.

One could ask rhetorically perhaps, what essentially is the difference between being persecuted as a member of the social group of Sikh landowners and being a member of the social group of Punjabi Sikh Jatt landowners? Clearly, the question of being a Sikh and being a landowner was considered by the Tribunal. Indeed, the Tribunal considered the Applicant's situation as a Sikh in Punjab State where the Applicant comes from.  The Tribunal considered Independent evidence or Independent country evidence of the proportion of the Sikh population in Punjab as being 59.9%.

I am of a view that when the Tribunal considered the question of the Applicant being a Sikh and a landowner, the Tribunal did consider the question of the Applicant being a Sikh in Punjab State because the Tribunal specifically addressed that at page 151 of the Court Book.  The Tribunal did not consider the Applicant as being a Sikh in the context of India generally, that is, a Sikh in the context of being a Sikh from the Punjab State.  What, if any, is the relevance of the Applicant claiming to be a Jatt? In my view, there is no significance. The Applicant did not make that particular claim or provide any evidence that as a Jatt he was in a somehow difficult position from other Sikh landowners in the Punjab State. It is no more than a particular description. There is no evidence of any Convention-related harm being directed to the Applicant for that particular purpose.

18                        In relation to the remaining grounds, the Federal Magistrate noted that the laws of evidence do not apply to the Tribunal; that there was evidence upon which the Tribunal could make it’s finding on the issue of State protection; and that the Tribunal had no obligation under either ss 424 or 427 of the Act to obtain any further information.   In particular, in relation to the issue of international standards of State protection, the Federal Magistrate made the following observations (at [43]):

Is it necessary for the Tribunal to examine evidence about international standards of State protection?  I am not of the view that there is any requirement set out by the High Court in Minister for Immigration & Multicultural Affairs v Respondents 152/2003, to which I have previously referred, that the Tribunal should conduct some sort of an inquiry or an assessment or an evaluation as to what international standards of State protection are.  If the Applicant submits that State protection is either unavailable or inadequate, it is for the Applicant to provide evidence in respect of that point.

19                        The Federal Magistrate therefore rejected the grounds of review raised, found no jurisdictional error and dismissed the application.

On Appeal

20                        The appellant’s notice of appeal raises three grounds of appeal.  The first and second grounds challenge the Federal Magistrate’s conclusions on the Tribunal’s findings in relation to international standards of State protection, asserting that the Tribunal did not comply with the Actor the rules of evidence on this issue, nor did it have regard to relevant or sufficient evidence relating to this issue.  The third ground contends the Tribunal made a jurisdictional error where it found the appellant had fabricated aspects of his claims.

Appellant’s Submissions

21                        The appellant did not provide any written submissions prior to the hearing of the appeal.  However, he handed up comprehensive written submissions at the hearing.  In those submissions he addressed all three grounds of appeal and raised a further ground.  The appellant applied for leave to add a fourth ground of appeal:

The Federal Magistrate erred in finding that the Tribunal did not commit jurisdictional error when it misapprehended the appellant’s claim to be a member of a particular social group.

22                        The first respondent did not oppose the application.  That amendment fairly raised an issue which was before the Federal Magistrate.  Leave was granted to amend the notice of appeal.

23                        For the reasons which follow, I do not think any of the original three grounds of appeal have been made out.  However, I am satisfied that the fourth ground has been established.

First Respondent’s Submissions

24                        The first respondent submitted that the Federal Magistrate was correct to conclude that there was evidence to support the Tribunal’s finding of adequate State protection in the country information referred to by the Tribunal.

25                        The first respondent further submitted that the Federal Magistrate was entitled to rely upon the decision of Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 for the proposition that the Tribunal is not required to examine evidence about international standards of State protection.

26                        The first respondent submitted that, in any event, it was unnecessary for the Tribunal to consider the issue of State protection at all, because the Tribunal had already found that there was no real chance of the appellant being harmed in the future.  In those circumstances, the issue of State protection did not arise: Respondents S152/2003 222 CLR 1 per McHugh J at [84]-[88]; SVTB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 104 at [22]-[23].

27                        The first respondent submitted that the assertion raised by the appellant in the third ground of appeal that the Tribunal committed jurisdictional error by stating that the appellant had “fabricated aspects of his claim to enhance his application” was raised for the first time on the appeal.  Nevertheless, the first respondent submitted that the authorities mentioned in the particulars by the appellant (being Rares J’s decisions of SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435 at [60]-[64]and SZEOP v Minister for Immigration and Citizenship [2007] FCA 807 at [24]) were irrelevant to this case.  The first respondent further submitted that it was open to the Tribunal, for the reasons it gave, to find that the applicant had fabricated aspects of his claim to enhance his application for a protection visa.

Analysis

28                        The Tribunal found the appellant not to be a credible witness and positively found that he had fabricated aspects of his claims for the purpose of enhancing his application for a protection visa.  Moreover, the Tribunal found that the appellant had not suffered any of the harm which he claimed to have suffered as a result of his dispute with his Hindu neighbour.  Whilst the Tribunal was prepared to accept that there was a long-standing animosity between the appellant and his neighbour, the Tribunal rejected the appellant’s claim that the appellant feared that he would be persecuted for any Convention reason.  The Tribunal also rejected the appellant’s claim that he was a member of a particular social group which meant that he was liable to persecution.

29                        In those circumstances, the first respondent’s submission that the issue of State protection did not arise must be accepted.  The Tribunal rejected the appellant’s claim that he had a well-founded fear of persecution for a Convention reason.  In those circumstances, the question as to whether the State could or could not protect him in relation to that fear of persecution did not arise.

30                        For that reason, the first two grounds of appeal must be dismissed.

31                        The third ground of appeal was not raised before the Federal Magistrate as a ground for the application for judicial review.  It can only be raised by leave.  Leave would only be given if this Court were satisfied that there was any merit in the ground of appeal.

32                        In my opinion, there is no merit in the ground of appeal.

33                        The Tribunal concluded that the appellant had fabricated aspects of his claim because it could not accept him as a credible witness.  The finding of fabrication is the Tribunal’s explanation for why the appellant might have advanced the claims that he did.  It is not jurisdictional error to make such a finding as is claimed in this ground of appeal.  The Tribunal was entitled to conclude, for the reasons it gave, that the appellant had fabricated his evidence for the purpose of supporting his claim for a protection visa.

34                        It is not claimed in this ground of appeal that the Tribunal was under an obligation to give notice of any matter pursuant to s 424A of the Act.  Rares J’s decisions in SZGGT [2006] FCA 435 and SZEOP [2007] FCA 807were concerned with the question of notice under s 424A.  The third ground of appeal is not made out.

35                        However, I do think, as I have said, that the fourth ground has been made out.  The Tribunal addressed the appellant’s claim that he was a member of a particular social group.  It said:

Although the applicant has not articulated any particular social group, the Tribunal has considered a particular social group of “Sikh landowners” and even if the Tribunal were to accept the existence of such a particular social group, in consideration of the evidence as a whole, the Tribunal is not satisfied that any harm feared by the applicant, is essentially and significantly related to membership of that particular social group, but rather is private in nature.

36                        It was conceded by the first respondent that the Tribunal was wrong to say that the appellant had not “articulated” any particular social group.  In fact, the appellant had precisely identified the social group of which he claimed he was a member.  He said in a letter to the Tribunal of 14 February 2007, “I state that I was persecuted in India by Indian authorities (police) and others for being a Punjabi Sikh Jat landowner.”

37                        Further, in answer to the letter written to him under s 424A of the Act, he said, “I’m a man of simple means, who have (sic) been beaten and persecuted for being a Punjabi Sikh Jatt land owner.”

38                        The Tribunal was wrong to assert that the appellant had not identified the particular social group of which he said he was a member.

39                        The Tribunal’s error was recognised by the Federal Magistrate.  However, the Federal Magistrate said that the Tribunal considered the appellant’s claim against a wider social group, being a group of Sikh land owners and found that that wider social group was not subject to persecution.  The Federal Magistrate therefore reasoned that the Tribunal assessed the appellant’s claim.  The Federal Magistrate reasoned that as the appellant lived in Punjab the Tribunal had inferentially addressed that aspect of his claim.  The Federal Magistrate also thought that as there was no evidence of the relevance of the appellant being a Jatt, that the appellant was therefore in no different position from other Sikh land owners in the Punjab state.

40                        In my respectful opinion, the Federal Magistrate erred in concluding that as the Tribunal had assessed the appellant’s claim against a wider social group that the Tribunal must have thereby assessed the narrower claim.  That, in my opinion, does not necessarily follow.  The appellant claimed refugee status by reason of being a member of a particular social group.  He was entitled to have his application assessed as against that claim, not as against some other claim.

41                        If the Tribunal had assessed his claim as it was precisely presented to the Tribunal, the Tribunal would have had to determine whether a Punjabi Sikh Jatt land owner was liable to persecution by reason of his membership of that particular group.

42                        This was not done.  In that regard, the Tribunal failed to exercise its jurisdiction in relation to the appellant’s claim.

43                        It was put by the first respondent that because of the finding made in relation to the ability of the State to protect its citizens that even if there was a well-founded fear of persecution by reason of the appellant being a member of the particular social group of Punjabi Sikh Jatt land owners, the appellant’s claim had to be dismissed.  In my opinion, that contention should also be rejected.  The issue of State protection was not assessed against the particular social group of which the appellant claimed to be a member.  It was assessed against a wider group.

44                        It will be a matter for the Tribunal to determine whether or not the smaller and more precisely identified social group receives adequate State protection from the Indian authorities.

45                        In my opinion, the appeal should be allowed.  The order of the Federal Magistrate dismissing the application for judicial review should be set aside.  The order that the appellant pay the first respondent’s costs in the Federal Magistrate’s Court should also be set aside.  In lieu thereof, there should be an order quashing the decision of the Refugee Review Tribunal made on 21 March 2007 and handed down on 12 April 2007.  There should also be an order that the appellant’s application for a review of the delegate’s decision be remitted to the Refugee Review Tribunal for consideration according to law.

46                        The appellant, in his written submissions, has asked that the appeal be allowed with costs being awarded.  He was unrepresented on this appeal but was represented before the Federal Magistrate.

47                        It seems to me it would be appropriate to make a further order that the first respondent pay the appellant’s costs in the Federal Magistrates Court.

Associate:

Dated:         21 April 2008