Applicant A103 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 584

FEDERAL COURT OF AUSTRALIA

Applicant A103 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 584 APPLICANT A103 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS, MEMBER, REFUGEE REVIEW TRIBUNAL & PRINCIPAL MEMBER, REFUGEE REVIEW TRIBUNAL S 678 of 2003 MANSFIELD J 28 MAY 2004 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 678 OF 2003

BETWEEN: APPLICANT A103 OF 2003

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

FIRST RESPONDENT

MEMBER, REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

PRINCIPAL MEMBER, REFUGEE REVIEW TRIBUNAL

THIRD RESPONDENT

JUDGE: MANSFIELD J

DATE OF ORDER: 28 MAY 2004

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay to the first respondent costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 678 OF 2003

BETWEEN: APPLICANT A103 OF 2003

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

FIRST RESPONDENT

MEMBER, REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

PRINCIPAL MEMBER, REFUGEE REVIEW TRIBUNAL

THIRD RESPONDENT

JUDGE: MANSFIELD J

DATE: 28 MAY 2004

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 The applicant is a citizen of India. He arrived in Australia on 26 August 2001, and soon thereafter applied for a protection visa under the Migration Act 1958 (Cth) (the Act). His application was refused by a delegate of the respondent on 30 January 2002. On 30 December 2002 the Refugee Review Tribunal (the Tribunal) affirmed a decision not to grant to the applicant a protection visa under the Act. 2 On 24 February 2003, the applicant applied in the High Court of Australia for orders by way of mandamus, prohibition and certiorari in respect of the Tribunal's decision. The application was remitted to this Court for further hearing and determination by order of 11 June 2003. It is common ground that, to be entitled to the orders sought, it is necessary that the applicant establish jurisdictional error on the part of the Tribunal: Plaintiff S157/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 211 CLR 476;[2003] HCA 2. 3 Before referring to the grounds upon which jurisdictional error on the part of the Tribunal is said to have been established, it is convenient to refer briefly to the nature of the applicant's claims. In essence, the decision-maker needed to be satisfied by reason of s 36(2) of the Act that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (the Convention) before he could be eligible to be granted a protection visa. He claims to have that status because he claims to be a refugee as defined in Art 1A(2) of the Convention, that is, that he is a person who has a well-founded fear of persecution for a Convention reason if he were to return to India. 4 The applicant is a Sikh, and claims to have a well-founded fear of persecution if he returns to India by reason of his Sikh religion. He claimed to have particular difficulties, as with many Sikhs, in his home area in Punjab during the 1980s. The Tribunal accepted those complaints, as many sources indicated that during that period numerous atrocities were committed against Sikhs in Punjab by Indian authorities. However, it found that the human rights situation in Punjab had dramatically improved since that time. The Tribunal did not accept that any problems that the applicant encountered in the 1980s would now give rise to a well-founded fear of persecution if he were to return to India. 5 The applicant complained, however, that after a brief period in Kenya, on his return to India in December 1993, he continued to have trouble with the authorities in India due to his religion. He said that in 1995 he was arrested under the Terrorist and Disruptive Activities (Prevention) Act 1978 (TADA) and was detained for one month before being released. He further claimed that during 1996 he had difficulties with the Akali Dal (Badal) Government because of his religion, including being detained by the authorities from time to time to induce him to change his religion. He declined to do so. He had unsuccessfully tried living in Delhi and Bombay, away from Punjab, to alleviate the victimisation of which he complained. 6 The Tribunal did not consider those matters led to the applicant having a well-founded fear of persecution by reason of his religion. It did not specifically determine whether, in 1995, he had been arrested under TADA as he claimed. It noted that on his own story he was released after one month. That indicated to the Tribunal that the applicant was not then of ongoing interest to the authorities in India at that time. It drew that conclusion having regard to information available to it about the treatment of other persons detained under TADA. It said: 'The fact of the applicant's release after a relatively short time is an indication that he was of little interest to authorities and that he was considered to be of a low or insignificant political profile.' 7 The Tribunal found that there were differences between different factions of Sikhs seeking power in India, and that the applicant may have been perceived as being representative of or a member of one of those factions. Even so, it did not consider that his allegiance to one of those factions gave rise to a well-founded fear of persecution. It said: 'I am satisfied that the human rights situation in Punjab has fundamentally improved and that the applicant is not at risk from factional infighting amongst Sikhs in the reasonably foreseeable future as he has kept a low political profile.' It noted that the applicant had a valid Indian passport which enabled him to travel from India on at least two occasions, including in August 2001 when he left India for Australia. The fact that he was able to do so, notwithstanding the computerised records of wanted persons, indicated to the Tribunal that the applicant was not considered to be a high profile activist wanted by the authorities in India. It was unnecessary for the Tribunal to determine the extent of the applicant's political activities, because it was satisfied that, whatever they were, they were not of such significance as to lead to him developing a profile that made him of interest to the authorities. 8 Consequently, the Tribunal was not satisfied that the applicant has a well-founded fear of persecution if he were to return to India. 9 There was an additional reason why the application failed. The Tribunal applied the relocation principle as discussed in Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437. It concluded that the applicant could reasonably relocate to other places in India where, having regard to his complaints, he would in any event not be vulnerable to any form of adverse conduct of the nature of which he complained. It had regard to his age, his health, his financial resources, and his past work experience. It had regard to the fact that many Sikhs had relocated to other parts of India. It said: 'While it is not necessary for me to identify a particular place to which the applicants [sic] may relocate, looking realistically and sensibly at the possibility I am satisfied that Calcutta where there are many Sikhs is a reasonable alternative and an area where he is not at risk.' 10 The grounds upon which the Tribunal is alleged to have committed jurisdictional error were varied by an amended application filed on 18 February 2004 and again at the hearing. As finally expressed, they were fourfold: (1) the Tribunal denied procedural fairness and natural justice to the applicant in the process of its decision making by referring to country information that it obtained, which was adverse to the applicant, but did not give him the opportunity to respond to it, namely a report in the Hindustan Times of 27 February 2002 headed '4 Khalistanis booked under TADA let off, and secondly a report of the UK Home Office 2001, identified as 'India Assessment, October, Section 5.67.27'; (2) the decision of the Tribunal demonstrated a misunderstanding by the Tribunal of the meaning of 'persecution' in Art 1A(2) of the Convention; or alternatively was so unreasonable that no reasonable person could have reached it because the Tribunal observed: 'If the applicant was arrested under TADA in 1995 and released after one month as he claims I am satisfied that this indicates that he was not of ongoing interest to the authorities in India at that time.' (3) the Tribunal had a closed mind because it concluded: 'Where a conflict occurs between the applicant's evidence and the country information I accept the country information as the reliable source.' (4) there is no evidence that the applicant was able to operate his construction or farming business in India, as the Tribunal appears to have accepted, and further that there is no evidence that Sikhs can live safely in Calcutta (noted in the passage referred to in [9] above. 11 In my judgment, none of those matters demonstrate jurisdictional error on the part of the Tribunal. 12 The first ground of review relates to natural justice as it concerns the publication in the Hindustan Times of 27 February 2002 and (by amendment at the hearing) the UK Home Office Report 2001, India Assessment, October, Section 5.6.27. The applicant claims that he was not given an opportunity to respond to the information which is there referred to. The respondent acknowledges that the particular sources referred to were not expressly put to the applicant in the course of the Tribunal's hearing, but says that the substance of what is referred to was put to the applicant in the course of the hearing so that there is no want of procedural fairness. The Tribunal's recitation of the hearing reveals that it put to the applicant, for his response, country information indicating that many Sikhs have returned to Punjab. His response was that they, unlike himself, were not linked to any political activity. It discussed with the applicant country information about the improvement in the general situation in Punjab, even for political figures, even for those of high profile, and noted that in 2001 two high profile Sikh activists were nevertheless detained. It invited his comments upon information that Sikhs generally were not now persecuted, that problems now experienced by them were often due to local problems, and about the prosecution of many police for their previous repressive activities or excesses and human rights violations. 13 The two sources of independent country information upon which, the applicant says, he did not have an opportunity to comment fall within the general issues which the Tribunal referred to him for comment. The UK Home Office 2001, India Assessment, October, Section 5.6.27 (as described in the Tribunal's reasons) relates to the general improvement in how Sikhs are treated in Punjab, and states that they are not now vulnerable to mistreatment without individual or specific reason. That accords with other country information to which the Tribunal refers, and the reference to which has not attracted complaint from the applicant. The quoted report from the Hindustan Times, 27 February 2002, also accords with the general country information which the Tribunal put to the applicant. It relates to the dropping of charges against some Sikh student activists. 14 In those circumstances, the applicant has not persuaded me that the Tribunal failed to accord him procedural fairness. He was entitled to know the nature of the material to which the Tribunal might have regard in making a decision about his claims. It informed him of the nature of that material. It was not necessary for the Tribunal to direct his attention to each piece of country information touching upon that general picture to which it had access. The purpose of referring to the applicant that material is so that he could know what factual material he might have to confront, and have the opportunity to do so. He was given that opportunity. 15 It is plain from the Tribunal's reasons that it did not misunderstand the meaning of 'persecution' as that term is used in the Convention, and by implication in the Act. The Tribunal referred to decisions of the High Court discussing that concept including Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 (Chan Yee Kin) and Minister for Immigration & Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1. It noted that s 91R of the Act now explains or qualifies the meaning of 'persecution' in Art 1A(2) of the Convention. Persecution must involve 'serious harm' which is systematic and discriminatory: s 91R(1). The Tribunal noted the examples of 'serious harm' provided in s 91R(2) of the Act. 16 There is nothing in the Tribunal's recitation of those matters which demonstrates on its part any misunderstanding of the concept of persecution. Indeed, counsel for the applicant did not contend that the passage in the Tribunal's reasons in which it discussed the meaning of 'persecution' demonstrated any such error. The error was said to be that the Tribunal excluded from its consideration a single act of oppression, even though it is plain that a single act of oppression experienced in the past may demonstrate that in the past a particular person has been exposed to harm of a sufficient nature as to amount to persecution: see Chan Yee Kin at 429 – 431. 17 In my judgment the argument must fail. The Tribunal did not consider that it is necessary that the applicant had suffered in the past more than one single act of oppression before he could be found to have a well-founded fear of persecution if he were to return to India. It did not take that step. In my judgment, it accepted that an event or events which may have occurred to the applicant in the past could indicate whether, at the time of its decision, the applicant had a well-founded fear of persecution for a Convention reason. That approach would be entirely consistent with the High Court's observations in Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 574 – 575. What an applicant for a protection visa has experienced in the past may, and generally will, be of significance in determining what might be experienced in the future, and it is of significance in determining whether an applicant has a well-founded fear of persecution at the time of the decision. 18 In this instance, the Tribunal appears to have assumed in the applicant's favour that he was arrested under TADA in 1995. But it reasoned from that (assumed) fact that, in the circumstances, the applicant was not then a person of significant political profile. It then considered whether he had developed a political profile of significance after that time. It concluded that he did not have such a profile for the reasons explained above. It did not consider that it was necessary for there to be the risk of more than one single act of oppression before the applicant could fall into the category of a person having a well-founded fear of persecution if he were to return to India. 19 I also consider the Tribunal's conclusion concerning the alleged detention under TADA in 1995 was reasonably open to it. It had regard to the way in which persons arrested under TADA were treated. On the basis of the period of the applicant's claimed detention, it concluded that he was not a person of significant interest to the authorities. The applicant's counsel acknowledged that the Tribunal could have made that conclusion readily if the applicant had been released after one day or after several days. It is because his claimed detention was more prolonged that it was submitted the Tribunal's conclusion was unreasonable. But, it was by reference to the much more prolonged detention of other persons under TADA that the Tribunal concluded that the applicant was not of significance to the authorities. In my judgment it was not unreasonable for it to draw such a conclusion. 20 The claim that the Tribunal had a closed mind must also fail. At the point in its reasons where it indicated that it preferred the independent country information to that of the applicant, it explained why it reached that view. In particular, it indicated that country information showing a general improvement in the situation in Punjab since the early 1990s was extensive, and was too consistent to be inaccurate. Secondly, it noted that information recording the return of thousands of Sikhs to their homes in Punjab over that period of time. It inferred from that information that relative stability and security had returned to that part of India, except in respect to high profile persons who are likely particularly to be targeted. It did not consider that the applicant was one of them. That process of reasoning, far from demonstrating a closed mind on the part of the Tribunal, demonstrates that it considered what the applicant put to it in the course of the hearing as to why the independent country information should not be accepted. It simply reached a different view and gave its reasons. 21 The 'no evidence' ground of alleged jurisdictional error refers to observations of the Tribunal when considering whether, in accordance with the relocation principle, the applicant could relocate to another area in India, and whether he could reasonably be expected to do so in his individual circumstances. In deciding that the applicant could do so, the Tribunal considered the availability of domestic protection in India generally, including away from Punjab, to ensure that the applicant's safety would not be illusory or unpredictable, and it looked at the applicant's individual circumstances. It found that relocation was a reasonable thing to expect him to undertake. It noted that he had obtained employment in Australia. He had demonstrated the resilience and flexibility to be able to resettle in a foreign country. It noted that the applicant had been able to establish a business in India. It added: 'I do not accept that he was unable to operate his construction (to DIMIA) or farming (to the Tribunal) business for reason of his political opinion as he claimed.' It noted his absence of a political profile which would attract the interest of authorities elsewhere in India. It noted his age and health and his financial resources. It was satisfied that the practical realities are such that he would be able to relocate without difficulty to other parts of India, where he would have the same level of protection as other Indians. 22 As the Tribunal explained, in reaching its decision it took into consideration the applicant's claim that he was unable to operate his construction or farming businesses by reason of his political opinion or his religion. However, while that was part of its reasoning it was only a subset of the issue it was addressing. The overriding issue was whether the applicant could reasonably be expected to relocate elsewhere within India. His capacity to be employed elsewhere within India was but one factor relevant to that issue. There were a number of matters which the Tribunal addressed in considering his capacity to relocate elsewhere within India, noted in the preceding paragraph, including the fact that he has gained employment in Australia. Its observation that it did not accept his claimed difficulties in operating his business or businesses in India, in context, is not a matter which is integral to its conclusion so as to demonstrate jurisdictional error, even if there were no evidence upon which its comment could have been made: see e.g. Minister for Immigration & Multicultural Affairs v Rajamanikkam [2002] HCA 32; Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212. 23 In addition, I do not accept that there was no evidence upon which the Tribunal could have expressed that view. It was not obliged to accept every factual claim the applicant made unless there were direct contradictory evidence. It was required to form a view about what the applicant had experienced in the past. It was entitled to form that view, having regard to how the applicant presented when giving evidence and in the context of the view it took about his overall reliability as a witness. It did so. In my view, it was clearly entitled not to accept his claims about being unable to conduct his business or businesses in the circumstances. Its approach to the assessment of his evidence on that matter does not demonstrate jurisdictional error on its part. 24 In the light of my conclusions, the application should be dismissed. The applicant should pay to the first respondent costs of the application.