Applicant S1845/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 739 (12 May 2005)

Last Updated: 8 June 2005

FEDERAL COURT OF AUSTRALIA

Applicant S1845/2003 v Minister for Immigration and Multicultural and
Indigenous Affairs [2005] FCA 739

MIGRATION – application for leave to appeal by wife on behalf of herself, her husband and her three children – application dismissed – recommendation to Minister for favourable consideration on humanitarian grounds


Migration Act 1958 (Cth)


























APPLICANT S1845/2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 250 OF 2005



CONTI J
12 MAY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 250 OF 2005

BETWEEN:	APPLICANT S1845/2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	12 MAY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. Application for an extension of time and leave to appeal is dismissed.

2. Applicant to pay the respondent’s costs assessed at $1000.















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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 250 OF 2005

BETWEEN:	APPLICANT S1845/2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	CONTI J
DATE:	12 MAY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an application for leave to appeal from a judgment of a Federal Magistrate made on 3 December 2004, whereby an application for review of a decision of the Refugee Review Tribunal (‘RRT’) made on 15 February 1999 was summarily dismissed pursuant to Rule 13.03(2)(b) of Federal Magistrates Court Rules 2001 (Cth). These are the second proceedings for judicial review brought in respect of that RRT decision. The first were brought by the current applicant’s husband, who was (and remains) the original applicant for the protection visa. Those proceedings were dismissed by Mansfield J on 10 February 2000. Subsequently the applicant’s husband suffered severe head injuries. The applicant filed a fresh application for judicial review on 31 May 2004 and it is with this application that these proceedings are concerned.

2 The applicant’s husband was tertiary educated in India and graduated with a bachelor of commerce degree in 1978 and a bachelor of law degree in 1982. Before coming to Australia he worked as an accountant in India and as a general manager in China.

The Tribunal decision

3 The basis of the applicant’s husband claim for refugee status was summarised by the RRT in its reasons for decision as follows:

‘As to his claim to protection visas for himself and his family, the applicant father said that he left India because he feared "being liquidated at the hands of vigilante groups like Sarabha Brigade, Restriaya Rifles, [and the] Indian National Army". He said he was forced to leave India because of "Frequent police raids, intimidation and harassment at the hands of the repressive fascist Indian state machinery". He said he had tried to "bring to light" several cases of "staged encounters in which several thousand of Sikh youth were systematically eliminated" and to expose the vigilante groups who were "responsible for the misery of Punjabis [in] the last 15 years". He said that these activities brought him "into the limelight". Due to his "previous leftist affiliations", he was a suspect in secret files of the states and his efforts as a human rights worker further "worsened" his life. He said that he feared he would be killed like Bhai Jaswant Singh, Singh Khadra, Bhai Kulwant Singh Ropar, Shai Sukwinder Singh Bhatti, who were human rights activists who were working for the establishment of "true democracy". He said he had worked in association with Sukwinder Singh Bhatti of Sangrur and Kulwant Singh "Ropar" of Ropar, and this brought him to the notice of the vigilante groups and he got "harassment, police raids, intimidation and torture". He said the "the fascist Indian rulers will not, and certainly can not protect me because of my total dedication towards establishment of a just society and committed (sic) to bring to light cases of fake staged encounters, illegal detentions, arbitrary arrests, use of third degree torture methods in interrogation, will always haunt me, and will always be used to liquidate me".’

4 The Tribunal expressed reservations as to the applicant’s husband’s credibility because of what was considered by the Tribunal to be ‘omissions and inconsistencies’ in his evidence given to the Tribunal. Nevertheless the Tribunal summarised the applicant’s husband’s evidence furnished to the Tribunal as follows:

‘The omissions and inconsistencies noted immediately above go to the heart of the applicant father’s claims, and therefore the Tribunal is left with a doubt as to whether the applicant father’s entire claims are fabricated. However, despite its reservations, the Tribunal has given the applicant father the benefit of the doubt to an extent, and has determined the applicant’s claims on the following facts: the applicant father was an ordinary member of the Naxalites from 1972 to 1975 while at college and he was detained on some occasions, with others, at demonstrations; he was held each time for a short period, not exceeding a day each time, and was not at any stage in India formally charged; the applicant father has had no Naxalite involvement since 1975; in 1982 the applicant father was given an unsatisfactory police report and his employer, a semi-government body, dismissed him on the basis of this report; he was reinstated to his job in 1985 after taking court action; he remained in this job until he left India in June 1994; he was an ordinary member of the Punjab Human Rights Organisation from 1991 to 1994; he received a passport with his own details in 1993 and this was renewed by the Indian authorities in the PRC in 1994, again with his own details, albeit with a different looking passport photograph of him; he paid a bribe to speed up issue of his passport in 1993, but did not pay a bribe for the passport issued in the PRC; he returned to India in August 1994 and did not experience any problems, despite briefly visiting his former residence in Punjab, staying with his mother for a few days in Punjab, and staying the remainder of his ten days’ visit with his in-laws in Uttar Pradesh, which is a neighbouring state to Punjab; the police asked the applicant mother where he was (several times in 1992 to 1993), and asked his brother and mother several times in mid-1994, but there have been no inquiries of his family since July 1994.’

5 At the conclusion of the Tribunal’s thorough and thoughtful examination of the applicant’s husband’s narrative of circumstances in support of his claim, the Tribunal concluded its findings in the following terms:

‘In the applicant father’s particular case, the Tribunal has found above that the applicant father was not detained after 1975, and even if he was detained later, he was released on every occasion without being charged, and when he visited India in August 1994, he was able to legally enter and exit, and remain in Punjab and its neighbouring state, Uttar Pradesh, with no problems. There is no evidence to support a finding that police interest in Punjab, if any, in the applicant, if any, is on a national scale since, despite security checks in place (DFAT Cable O.ND84486 of 6 July 1992), the applicant, using a passport in his own name, departed (and re-entered and departed again) India legally. The applicant father is not of the classes identified at risk in India: Sikhs Outside Punjab (DIRB, December 1992). After considering all the evidence, the Tribunal in this case is not satisfied that if the applicant father returned to India he would face a real chance of persecution on the ground of his political opinion, actual and/or imputed to him, and/or any other Convention related reason.

As to whether the applicant father is personally capable of relocation from Punjab to elsewhere within India, the Tribunal notes that the applicant father said at the hearing that he could not relocate outside of Punjab since he is too old to get a job. However, the Tribunal also notes that the applicant father is educated (he has an arts degree, a masters degree in commerce, and a law degree), he is mature, and he speaks, reads and writes Punjabi, English and Hindi. He is experienced in working in a professional capacity, as an accountant, lawyer and general manager. The Tribunal notes that the applicant father has lived before outside of Punjab, that is in Uttar Pradesh and from 1994, the PRC, and now in Australia. The applicant mother and applicant children have also lived outside of Punjab, in Uttar Pradesh at the applicant mother’s parents, in the PRC while the applicant father was working there, and now in Australia with the applicant. The Tribunal notes too that the applicant father appears to have a supportive family (his brother helped him obtain his passport in 1993), and though the applicant father said at the hearing that his brother in business would not help him if he returned to India, there is no suggestion that the family in fact would withdraw their support if the applicant father resettled in India outside of Punjab since the applicant father left India in 1994 and his brother in business has kept in contact with him since 1994. The Tribunal finds that if the applicants do not wish to return to Punjab, they are personally capable of relocation from Punjab to another part of India. However, the Tribunal reiterates, the issue of relocation is a personal choice for the applicant father, irrelevant to this application, since the Tribunal has found above that the applicant father’s fear of harm in Punjab is remote.

After considering all the evidence, the Tribunal is not satisfied that he applicant father has a well-founded fear of persecution for a Convention reason if he returns to India, nor that if he returns to India, he will face a real chance of persecution for a Convention reason.

No specific Convention claims were made by or on behalf of the applicant mother and/or applicant children. The fate of their applications therefore depends on the outcome of the applicant father’s application. As the Tribunal has found that the applicant father does not satisfy the criteria for a protection visa, it follows that the applicant mother and applicant children cannot be granted protection visas.’

6 In the result, the Tribunal concluded that it was not satisfied that the applicant, her husband and children were persons to whom Australia had protection obligations under the Refugees Convention.

7 The applicant’s husband thereafter sought review of the RRT’s decision in this Court based upon the former ss 476(1)(g) and 4(b) of the Migration Act 1958 (Cth), his contention being that there was no evidence or other material to justify the making of the decision and that the RRT decision had been based on the existence of a particular fact that did not exist. Though Mansfield J formed the view that the RRT had failed to address the correct question on the issues raised, his Honour found that the Tribunal’s error did not invalidate the Tribunal’s conclusion. In the result, his Honour dismissed the application for review upon the basis of reasons for judgment given on 10 February 2000.

8 The applicant’s husband sought review of the RRT’s decision of 15 February 1999 from the Federal Magistrates Court of Australia per medium of his wife by an application filed on 31 May 2004. The purported basis of the application was framed as follows (read literally):

‘Appellant is appealing for pure judgment. Not only on the basis of Legal Grounds but as well as on the basis of Humanitary grounds. I have lost a lot in Australia. I am looking for five futures, this was not considered by honourable judge.’

9 Pursuant to ex tempore reasons for judgment delivered on 3 December 2005, that application was dismissed by the Federal Magistrate. In dismissing that application, the Federal Magistrate made observations concerning the distressing circumstances occasioned to the applicant’s family which had by then recently occurred, whilst nevertheless recognising the absence of any viable grounds in law for any effective review of the RRT’s earlier decision. The basis for those observations was a report of Dr L M Smith of the Leeton Medical centre dated 20 May 2004, of Dr Williams of Greater Murray Area Health Service and of Dr Sarah Kenny of 14 April 2003.

10 Those distressing circumstances thus reflected in the reasons for judgment of the Federal Magistrate are now reproduced below:

‘6. ... Essentially, the applicant is asking the Court to let her, her husband and her children remain in Australia due to the sad circumstances relating to her husband’s highly unfortunate situation arising out of a severe medical disability. There is no real challenge to the Tribunal’s decisions.

...

9. The Court acknowledges the sad circumstances of the applicant and in particular that over 2 years ago, the applicant’s husband suffered a severe life threatening head injury which has left him profoundly disabled. He has a severe cognitive disability, he is unable to walk or move independently. He is in a nursing home and needs help with the most basic of needs. The applicant also has three children to look after, as well as her husband...’

11 After recording the Court’s explanation given to the applicant’s wife as to the review role of the Federal Magistrate’s Court, and the absence of any effective legal process and any appropriate supporting evidence proffered, the Federal Magistrate’s reasons for judgment concluded as follows:

‘10. ... The applicant is not now seeking judicial review, but permission for her husband, herself and their children to remain in Australia. I could not see any utility, in these circumstances, in giving her more time to comply with the Court’s orders. Therefore, the application is dismissed pursuant to Rule 13.03(2)(b) of the Federal Magistrates Court Rules 2001 (Cth).’

12 It is I think instructive for me to record the content of the applicant’s affidavit evidence placed before me (read literally):

‘1. The reason that I am requesting further stay in Australia for my family and myself, is because my husband is currently very ill and he is currently residing in the dementia unit of Carramar Nursing Home in Leeton. My husband became very ill almost two and a half years ago when he fell over at home and hit his head. He was taken to Griffith Base Hospital, where doctors confirmed that he had a brain haemorrhage and he then had to be airlifted to Canberra.

In Canberra, he had to undergo several operations to his brain before he was finally stabilised. He was then moved to a rehabilitation unit in Canberra where he underwent some therapy, but due to the disabilities caused by his brain injury and a lack of funds on my behalf, the therapy was stopped. This is not fair for me. He is unable to walk and needs assistance in the most basic actions. The doctors and nursing staff who look after him, have told me that his condition will not improve and he will never be able to travel.

2. I have three children who all attend school here in Griffith. These children also require other educational facilities that would enable them to excel in their achievements and bearing in mind that my eldest daughter will be entering Yr 12 in Yr 2005. I have to play the role of both the parents. I am a single parent who looks after everything, from taking care of my children to going to Leeton to see my husband. All this is very stressful for me.

3. We will face persecution if we return to our country of origin as there are significant level of violation of human rights.

4. There is we have nothing in India and nobody to help me.

5. There is very big religious problem in India.

6. We have been living here for 8 years. There is no future for my family in India. We feel safe and secured in Australia, with a promise of a happier life. Therefore I am requesting for you to grant us a Permanent residency, and also allow me work permission until the decision is made.’

13 The Minister’s solicitor, Mr Markus of the Australian Government Solicitor’s Office, submitted to me, as of course was his duty, that there had been nothing placed before the Court on behalf of the applicant demonstrative of any viable basis for the grant of the leave required to appeal from what was an interlocutory judgment of the Federal Magistrate. Nevertheless Mr Markus drew attention to what he described rightly as the sad circumstances of the applicant, including of course ‘... a severe life threatening head injury which had left [the applicant’s husband] profoundly disabled’.

14 The applicant articulated lucidly to me the compelling circumstances of her family. I will extract below by way of illustration some of the salient features of those explanations:

(i) ‘I’ve got two daughters. The eldest one is 17 years old. The next is a daughter who is 16 years old and my son is 9 years old and I have no permission to work’;

(ii) ‘I can do any kind of job’;

(iii) the applicant’s husband had major surgery in Canberra in August 2002, having been sent there by Griffith Base Hospital for specialist treatment;

(iv) ‘[the applicant’s husband] has got memory problems now and they are giving him actually two different kinds of drugs to make him sleepy... and he can lie down in the day because it is quite dangerous for him to move around’;

(v) ‘I don’t get any [social security] benefit at all; I have some family friends who are supporting me financially at this moment and I also go to the St Vincent’s charity for help’;

(vi) the applicant had discussed with ‘an immigration officer’ some two weeks before the hearing before me the subject of government financial assistance but "I think I’m not entitled to anything’;

(vii) each of the two daughters presently attend High School and her son presently attends primary school.

15 The applicant further explained that the accident occasioned to her husband, and his consequentially severe head injuries, were occasioned by a fall at his home, apparently in the context of undertaking household repairs. Mr Markus informed the Court further as follows:

‘The applicant has not personally made a request under section 417... but I should indicate to your Honour that the person instructing me has prepared some documents and is proposing to draw the attention of the Ministerial Intervention Unit to this case...’

Moreover, Mr Markus offered the view, which is objectively persuasive, that ‘... this is a very sad case and there are humanitarian considerations which the Minister many wish to consider’. Mr Markus thereafter proceeded as follows:

‘Your Honour, finally, it seems to me that just because your Honour asked about the circumstances, my understanding is that the applicant does not have a bridging visa which entitled her to work as an lawful non-citizen who doesn’t have residency rights. I don’t think she has an entitlement to unemployment benefits or such benefits. There are some documents which have been annexed to the affidavits of the applicant which indicate that she has been assisted by charitable individuals and charitable organisations.

There is a letter there, annexure C, from Inderjib Singh Kelam, Latmir Kaur Gill, about the efforts that they made on behalf of the applicant. There is also a letter from the St Vincent de Paul Society and there is a further letter from the Gurdwara Singh Sabha Society, but it does seem, your Honour, that the applicant and her family are reliant on others at the moment and their position cannot really be guaranteed unless they are able to obtain some sort of a permanent visa. It seems to me that the only thing for that to occur would be by reference to the Minister under section 417.’

16 Clearly enough the application made to this Court for leave to appeal from the Federal Magistrate’s summary dismissal of the application for review of the RRT’s decision must be dismissed as a matter of law, and the inevitable consequence must further follow that the applicant pay the Minister’s costs, which were assessed reasonably at $1000.00. Having found that, it is readily apparent that the applicant has no financial capacity to meet any such payment, and I trust that I will not be seen to be presumptuous in making the recommendation to the Minister nevertheless that such entitlement to costs be waived.

17 Infinitely more important and compelling is the recommendation that I would further make to the Minister that this is an appropriate case for the Minister, in her discretion, to consider permitting this family to remain indefinitely in Australia on humanitarian grounds according to an appropriate legal status cognisable in law. I earnestly hope that my recommendation will not be received or seen as inappropriate or presumptuous. Obviously the applicant’s husband has sustained severe head injuries in circumstances which would render it to be most unfortunate if he was to be compellingly returned with his wife and three children to the Indian sub-continent. What I have recorded concerning the present circumstances of the applicant who struck me as a stoic, pleasant and otherwise remarkable woman, as well as of the practical contributions of the local Australian charitable community, in particular of the St Vincent de Paul Society of Griffith, demonstrate a very strong prima facie humanitarian basis for this family to remain in Australia. There has been a commendable measure of generosity of spirit extended to his family by local residents of the Griffiths locality.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated: 7 June 2005

The applicant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	12 May 2005
Date of Judgment:	12 May 2005