SVHB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 18 (23 February 2005)

Last Updated: 24 February 2005

FEDERAL COURT OF AUSTRALIA

SVHB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 18

SVHB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

SAD 181 OF 2004



















ADELAIDE
23 FEBRUARY 2005
FINN, DOWSETT & SELWAY JJ

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 181 OF 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	SVHB APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	FINN, DOWSETT & SELWAY JJ
DATE OF ORDER:	23 FEBRUARY 2005
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs.

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 181 OF 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	SVHB APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	FINN, DOWSETT & SELWAY JJ
DATE:	23 FEBRUARY 2005
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

THE COURT

1 This is an appeal from the decision of the primary Judge ([2004] FCA 997) given on 26 July, 2004. The primary Judge dismissed an application by the appellant seeking the issue of writs of certiorari, prohibition, mandamus and other relief in relation to a decision of the Refugee Review Tribunal (the RRT) given on 25 February, 2004. For the reasons given below the appeal must be dismissed.

2 The appellant is a citizen of India. He is a Sikh and comes from the Punjab. He arrived in Australia on 8 September, 2002. On 21 October, 2002 he applied for a protection visa. In order to obtain such a visa the respondent (the Minister) had to be satisfied that the appellant was a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol: s 36(2) of the Migration Act 1958 (Cth) (‘the Act’). In general terms the Minister had to be satisfied that the appellant was a ‘refugee’ as defined in the Convention being a person who:

‘... owing to a well-founded fear of being persecuted for reason of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.’

3 The appellant’s claim to be a refugee arose from his relationship with his brother in law. The appellant claimed that his brother in law was involved in the movement for Sikh independence. Although the appellant was not himself involved in politics, or in the independence movement, he was visited socially by his brother in law. He said that this resulted in his being detained and beaten by the police. At the hearing before the RRT he claimed that between 1986 and 1996 he was detained at least five or six times. In 1996 he was picked up by the police and detained for three days during which he was beaten. After that incident he left India until 1999 when he returned. He claimed that he was again detained by police in May, 2002 after his brother in law disappeared. He claimed that he was again beaten. He claimed that he was also detained and beaten in August, 2002 and he left for Australia after that incident. He also claimed that the brothers of his brother in law were also after him.

4 The appellant’s claim was initially considered by a delegate of the Minister. On 12 February, 2003 the delegate rejected that claim because of the vagueness of the claim. The appellant sought a review of that decision by the RRT.

5 On 22 January, 2004 the RRT wrote to the appellant. Amongst other things that letter informed the appellant that he should send to the RRT "any new documents or written arguments" that he wanted the RRT to consider. Nothing was sent to the RRT.

6 On 19 February, 2004 the RRT interviewed the appellant. The appellant called two witnesses both of whom said that they had visited the appellant’s village during the relevant period and been informed that the police were "after the applicant" although neither of them knew why.

7 The RRT delivered its reasons on 25 February, 2004. The RRT was prepared to accept that there was widespread "abuse" of Sikhs and, on this basis that the appellant may have been detained by the police and mistreated by them. However, the Tribunal was not prepared to accept that the appellant’s relationship with his brother in law would have continued to attract the interest of the police long after his brother in law disappeared and long after the widespread violent conflict between the Indian Government and Sikhs came to an end in the early 1990s.

8 The RRT found that:

‘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 ....

Having regard to the applicant’s ability to leave India on two separate occasions, travelling on a passport in his own name, the Tribunal does not accept that the applicant was of any genuine interest to the police. The Tribunal is satisfied that the applicant is not a person who would face a real chance of coming to the adverse attention of or facing serious harm by the authorities for his political opinion – express or imputed -, religion or any other Convention reason.’

9 The RRT also found that the appellant could relocate elsewhere within India:

‘Moreover, the Tribunal is satisfied that it is reasonable for the applicant to relocate to a different part of India if he wants to avoid the local authorities and members of [his brother in law’s] family.’

10 The RRT confirmed the decision of the delegate.

11 In his application to this Court the appellant alleged that the decision of the RRT was affected by jurisdictional error. The appellant argued that the RRT did not accord the appellant procedural fairness in two respects. First, it was said that there was a failure to afford procedural fairness (and a failure to take account a relevant consideration) in that it had failed to give the appellant an opportunity to comment on whether the police in the Punjab could seek to extradite the appellant back to the Punjab. This ground related to the finding by the RRT that the appellant could relocate within India. The primary Judge rejected this ground. He held that any extradition would need to be "according to law" and that there was "no suggestion that either the police or the judiciary in any other State would participate in any form of persecution for a Convention reason". In any event, the primary Judge noted that even if the point had some merit, the appellant would still have to fail in light of the findings by the RRT that the appellant did not have a well founded fear of persecution if he returned to the Punjab.

12 The second respect in which the appellant argued that he had not been afforded a fair hearing was that he claimed to have been told by the RRT that the RRT would contact the appellant if it required various documents which he claimed would assist his case and it had not done so. In relation to this argument the primary Judge held that:

‘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. The RRT said, "OK, thankyou."
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. 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. 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.’

13 The primary Judge dismissed the application.

14 There are two grounds of appeal from that decision.

15 The first repeats the argument put to the primary Judge that the Tribunal was in breach of the requirements of procedural fairness in reaching the decision it reached without requesting further documents. In this regard the appellant informed us that he had three affidavits which he wished to put before the Court. He said that those three affidavits contained information that would have been put before the RRT if the RRT had requested it. As the material in the affidavits apparently went to the merits of the decision reached by the RRT (a matter which is not relevant in these proceedings) and as the relevant background is well explained in the material already before the Court (including the transcript of the hearing before the RRT) the Court declined to receive the affidavits.

16 For the reasons given by the primary Judge, the argument that the RRT breached the rules of procedural fairness in not seeking further documents from the appellant must be rejected. If the RRT had so acted as to cause the appellant not to put something before the RRT that he might otherwise have and if that could have affected the result then in some circumstances that might constitute a jurisdictional error by the RRT: see Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601. That is not this case. The RRT informed the appellant that he should provide to the RRT whatever documents he wished to rely upon. The exchange between the appellant and the RRT as revealed in the transcript does not suggest that the appellant was in any way misled. The appellant put nothing before the primary Judge to suggest that he was misled by anything that the RRT said or did. In these circumstances the first ground of appeal cannot be sustained.

17 The second ground of appeal is that there was a jurisdictional error by the RRT in failing to make findings in relation to the corroborative evidence of the two witnesses called by the appellant. This was not a ground of review raised before the primary Judge. Even if it were, there is clearly no jurisdictional error. It is clear from the transcript of the RRT hearing that the appellant was well aware that the credibility of his claim was in question. Presumably this was the reason why he arranged for the two witnesses to give evidence. It was a matter for the RRT whether the information given by those witnesses was sufficient to satisfy the RRT that the claim was true. The RRT referred to that evidence, but was still not satisfied that the claim was true. It was open to the RRT to reach that conclusion. There was no unfairness in doing so. Nor was there any jurisdictional error. Even if this ground had been raised before the primary Judge it would have been dismissed.

18 Finally, the appeal grounds do not deal with the separate finding by the RRT that the appellant could relocate within India so as to avoid persecution (if any) to which he might be subjected in the Punjab. This was a separate and independent basis for the finding by the RRT that it was not satisfied that Australia owed protection obligations to the appellant. Even if the appellant had succeeded on one or other of his grounds of appeal, the appeal must still be dismissed whilst the finding of the RRT in relation to relocation continues to stand.

19 For these reasons the appeal must be dismissed.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Finn, Dowsett and Selway.

Associate:


Dated: 23 February 2005

Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondent:	K Tredrea
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	22 February 2005
Date of Judgment:	23 February 2005