SVHB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 997

FEDERAL COURT OF AUSTRALIA

SVHB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 997

MIGRATION – procedural fairness – whether RRT should have invited applicant to comment – where applicant volunteered to provide documents to RRT – whether RRT obligated to take up applicant's invitation – well-founded fear of persecution – relocation. SVHB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS; SHAHYAR ROSHAN, MEMBER, REFUGEE REVIEW TRIBUNAL; PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL SAD 70 of 2004 LANDER J 26 JULY 2004 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 70 OF 2004

BETWEEN: SVHB

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

SHAHYAR ROSHAN, MEMBER, REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

THIRD RESPONDENT

JUDGE: LANDER J

DATE OF ORDER: 26 JULY 2004

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application for judicial review is dismissed. 2. The applicant to pay the first respondent's 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 SAD 70 OF 2004

BETWEEN: SVHB

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

SHAHYAR ROSHAN, MEMBER, REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

THIRD RESPONDENT

JUDGE: LANDER J

DATE: 26 JULY 2004

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 This is an application for review of a decision of the Refugee Review Tribunal (RRT) notified to the applicant on or about 22 March 2004. 2 The applicant was found by the RRT to be a national of India. He arrived in Australia on 8 September 2002. On 21 October 2002 he lodged an application for a Protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (Cth) (the Act). On 12 February 2003 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister) refused to grant a protection visa. On 6 March 2003 the applicant applied to the RRT for a review of that decision. 3 In a decision, notified to the applicant on or about 22 March 2004, the RRT affirmed the decision of the delegate of the Minister not to grant a protection visa. 4 The applicant contends that the RRT decision ought to be quashed and the matter remitted to the RRT for further hearing and determination, because the RRT did not accord the applicant procedural fairness during the course of the hearing and thereby committed a jurisdictional error. 5 The applicant claimed, before the RRT, that he was 46 years of age, that he was a Sikh and was of Punjabi ethnicity. After completing about eight years of education he became a carpenter and practised that trade from 1980 until 1996 when he went to the United Arab Emirates where he again worked as a carpenter until April 1999. He returned to India and resumed his employment in his father's carpentry workshop until September 2002 when he left India and came to Australia. 6 His claim before the RRT was that in 1984 and 1985 his brother-in-law, Baldev Singh, became a follower of Sant Jarnail Singh Bhindranwale, who is an advocate of Sikh independence. 7 He said that, during those years and shortly after, his brother-in-law, accompanied by others of the similar political persuasion, used to visit him at his father's carpentry business. The applicant tried to dissuade them but he was unsuccessful. He said that eventually he was visited by the police and was asked to become an informant. Later, he was picked up by the police and detained for three days during which he was subjected to 'beatings, lack of rights and lack of respect'. It was after this incident that he joined his brother in Dubai where he stayed for three years between 1996 and 1999. 8 He said that in May 2002 he was again picked up by the police and taken to a lock-up where he was beaten. He was only released because his relatives paid the police a bribe. He was subject to a similar arrest and beating in August 2002. 9 He said that he thought the actions of the police were motivated by his brother-in-law's disappearance. 10 He told the RRT that the police would subject him to further mistreatment if he were to return to the Punjab. 11 Later, in his evidence, he said that between 1986 and 1996 he was tortured and questioned by the police at least five or six times. He said that the police were interested in knowing where Baldev Singh was. 12 He told the RRT that Baldev Singh's family had told the police that he could give information to them about his whereabouts. He also told the RRT that Baldev Singh's brothers worked for the Army and wanted the police to obtain information about Baldev Singh's whereabouts. 13 The RRT put to him that it was surprising that the police would be interested in him, some 16 years after he had been visited socially by Baldev Singh. He said he was also surprised by that fact but, nevertheless, he was in danger as a result of his association with Baldev Singh. 14 The RRT said it had significant concerns with regard to the reliability of the applicant's account. However, the RRT was prepared to accept that the applicant may have been detained and questioned about being a militant and that he may have been mistreated by the police in the course of that detention. 15 The RRT specifically refused to accept that the applicant's peripheral relationship with Baldev Singh in 1984 and 1985 would have continued to attract the interest of the police in the applicant so long after Baldev Singh's apparent disappearance. 16 It found: 'The independent information before the Tribunal indicates that the militant Sikh movement was all but eliminated and the widespread violent conflict came to end in the early 1990s. Sikh people are not targeted now in Punjab as they were up until the early 1990s and the conflict was largely over years before the applicant left for Australia. The Tribunal does not consider plausible or credible the applicant's account of there having been sustained police interest in him on account of Baldev Singh after the end of the conflict in Punjab and that this interest was of an intensity which meant that the police were constantly looking for him and that he was detained every time that he returned to his village.' 17 The RRT went on to say: 'The applicant has provided no satisfactory reason as to why the local authorities would have shown a sustained interest in him up until his departure from India. The Tribunal, therefore, does not accept that, following the end of hostilities in Punjab, the applicant was detained, mistreated or was of any interest to the authorities for the reasons he has provided. It follows that the Tribunal does not accept that the applicant was in hiding after he had returned to India from the UAE.' 18 The RRT concluded that the applicant was not a person who faced any real chance of persecution for a Convention reason. In particular, the RRT was satisfied that the applicant's chance of facing harm by Baldev Singh's family for a Convention reason was remote. 19 Having concluded that the applicant was not a refugee, within the meaning of Article 1A of the Refugees Convention, the RRT considered whether the applicant could relocate to a different part of India if he wished to avoid the local authorities and members of Baldev Singh's family. 20 The RRT concluded: 'The applicant is relatively young, literate, mobile and resourceful. He is clearly able to adapt to new environments, given his ability to live and support himself in the UAE from 1996 to 1999 and in Australia over the last eighteen months. The Tribunal is satisfied that the applicant would be able to adapt to another area in India and that he would be able to find employment as he had done so while living in Chandigarh. The Tribunal, therefore, is satisfied that in all the circumstances it is reasonable for the applicant to relocate internally within India.' 21 In arriving at that conclusion, the RRT said that it was satisfied that the Punjab police would not pursue the applicant should he relocate internally. Specifically, it found that at the time of his departure from India the applicant was of no adverse interest to the authorities and 'given the significant changes and political resolution in Punjab and the passage of time, the Tribunal finds that the applicant does not face a real chance of being pursued by the Punjab police if he were to relocate to another part of India'. 22 The applicant complains of the failure of the RRT to take into account a relevant consideration and a failure to accord the applicant procedural fairness by not inviting the applicant to comment on the prospects of the Punjab police issuing an arrest warrant and seeking to have a police force in another State act upon it. I think what is being put is that the applicant should have been asked to comment on the prospects of him being extradited from another State in India to the Punjab. 23 Even if that were a question that should have been asked of the applicant, the failure to ask that question does not assist the applicant. 24 The applicant failed in his review before the RRT because he was found not to be a person to whom Australia owed protection obligations under the Refugees Convention. He was also found not to be a person who had a well-founded fear of persecution for a Convention reason. 25 The question of his relocation did not need to be addressed because the RRT would have dismissed his application, because it was of the opinion that he was not a refugee in any event. 26 In any event, if the Punjab authorities were to issue a warrant for the applicant's arrest he could only be extradited according to law. There is no suggestion that either the police or the judiciary in any other State would participate in any form of persecution for a Convention reason. 27 In my opinion, the point is without merit but, even if it did have merit, it has no practical application because the applicant's application must fail, as he is not a refugee. 28 The other point advanced on this application was that when the applicant appeared before the RRT he did so by video-link and whilst he was unrepresented. He claims that at the end of the hearing he indicated to the RRT that he had several documents, including affidavits, which he wished to give to the RRT as part of his case. He said that he was told that he would be asked to provide the documents if the RRT needed them. He said he was never contacted. 29 The applicant provided the Court with a copy of the transcript of the hearing before the RRT. 30 The transcript does not bear out the claim made by the applicant. At the end of the hearing, the applicant said to the RRT: 'If you require any further document at all I do have it if you want it'. 31 The RRT said: 'Ok, thankyou'. 32 In my opinion, the exchange between the applicant and the RRT does not provide any evidence of procedural unfairness such as to give rise to jurisdictional error. 33 The applicant did not identify any particular document which he said would support his case in any way. He merely indicated that he would provide any documents, if required. 34 It was for the applicant to provide whatever documents he wished at that time. An open-ended invitation on the part of the applicant to the RRT does not mean the RRT was in breach of procedural fairness by not taking up that invitation. 35 The application for judicial review is dismissed. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.