Bhatnagar v Minister for Immigration & Multicultural Affairs [2001] FCA 329 (9 March 2001)

Last Updated: 2 April 2001

FEDERAL COURT OF AUSTRALIA

Bhatnagar v Minister for Immigration & Multicultural Affairs [2001] FCA 329

MIGRATION - review by Refugee Review Tribunal - whether the Tribunal failed to comply with the procedural requirements of s 430(1)(b) and (c) of the Migration Act 1958 (Cth)

Migration Act 1958 (Cth), ss 430(1), 476(1), 476(4)

Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225 applied

Matter No. S 116 of 2000

BHATNAGAR v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

von DOUSSA J

ADELAIDE

9 MARCH 2001

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 116 OF 2000

BETWEEN:	BRIJENDER SWARUP BHATNAGAR APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	von DOUSSA J
DATE OF ORDER:	9 MARCH 2001
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant to pay the 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	S 116 OF 2000

BETWEEN:	BRIJENDER SWARUP BHATNAGAR APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	von DOUSSA J
DATE:	9 MARCH 2001
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1 This is an application under s 476 of the Migration Act 1958 (Cth) (the Act) for judicial review of a decision made by the Refugee Review Tribunal (the Tribunal) on 21 September 2000 which upheld an earlier decision of a delegate of the respondent to the effect that the applicant was not entitled to a protection visa on the ground that Australia did not owe to him protection obligations under the Refugee Convention as amended by the Refugee Protocol (the Refugee Convention and Refugee Protocol being terms more fully defined in s 5 of the Act).

2 The applicant, who is a citizen of India, arrived in Australia on 15 October 1998. On 20 October 1998 he lodged an application for a protection visa. On 9 December 1998 the delegate of the Minister for Immigration and Multicultural Affairs refused to grant that visa and the proceedings were then brought before the Tribunal.

3 The facts fall into small compass. For the purposes of deciding the matter, the Tribunal accepted at face value the claims of the applicant, save in one respect. The Tribunal rejected his assertion that he would suffer persecution for the reasons that he outlined if he were to return to India at the time that the decision was made by the Tribunal.

4 The facts which the Tribunal accepted were as follows. The applicant is a forty-four year old Hindu man from Delhi. He is married with three children and his family still live in Delhi. He is an engineer specialising in airconditioning and refrigeration. He has travelled extensively overseas and more recently has worked as an export consultant, and it appears that he visited Australia in 1994 and again in July and August 1998.

5 The applicant said that he left India because he was threatened by a rival group. He claimed that it all started when he bailed one of his friends out of custody. This friend was named Rakesh Shukla, who is said to be a wealthy man with land-holdings. The applicant said that Shukla had a big property and the rival group, which threatened him, wanted it. The group were involved in a big fight with Shukla, and Shukla ended up in gaol. The applicant apparently had the necessary characteristics to be able to bail him out of gaol, and did so.

6 The applicant stated that he did not know at the time that a big rival Mafia gang was trying to get Shukla out of the way, apparently to take over his property. The applicant claimed that when the rival group came to know that he had bailed Shukla out of gaol they came after him. He claimed that he had been disturbed by them in the middle of the night before he came to Australia in one of the earlier 1998 visits. He hoped that when he returned it would have settled down. However, upon his return to India and whilst he was with his family at a picnic on 2 October 1998 some people followed him and showed him a revolver. Those people were said to be part of the rival group.

7 Fortunately, no harm came of the applicant on that occasion because it was a day of high security, being the birthday of Mahatma Gandhi. The applicant said that he thought the rival group may have been after him because they were outraged that he had bailed out Shukla and cheated them out of the property. Indeed, that was the only explanation that he offered for the activities of the rival group. In turn that was the only reason that he advanced in support of a notion that he was in any fear in India.

8 The applicant told the Tribunal that he had recently spoken to his wife and she was still receiving visits from people asking for him.

9 The Tribunal apparently asked the applicant whether he saw his claim as fitting within any of the five Convention grounds, and he stated that the conduct of those after him could have been politically motivated. The applicant said that he had thought about moving to another city and getting lost in India but he would have to sell everything in Delhi and it would disrupt his children's schooling. He stated that he would eventually return to Delhi in two or three years by which time he would have expected things to have settled down.

10 I pause to observe that the applicant's answer to the question whether he saw any of his claims fitting within the five Convention grounds was a surprising one, as he had said to the respondent in his original application that he had never had any sort of contact with any political parties.

11 One of the documents before the Tribunal was a statement filed on the applicant's behalf with the Department of Immigration and Multicultural Affairs for the consideration of the original decision-maker. In the statement the applicant asserted that he belonged to "a particular social group as provided for in the UNHCR definition." He said that the:

"... social group comprises Rakesh Shukla and his family and my family, and I, our group arises from the fear that the authorities are unable to protect us against organised criminals where the organised criminals are protected by the authorities ... As noted Rakesh belonged to a social group landowners, group, subject to persecution because of their existence when the Authorities allow order to corrupted [sic]; I am so joined by being linked to Rakesh."

12 In light of this statement, it is also surprising that the applicant made no reference to his claim based on membership of a particular social group when asked by the Tribunal whether he saw his claim falling within one of the five Convention grounds.

13 The Tribunal expressed its findings and reasons in these terms:

"Whilst it may be the case that there is a gang of people after the applicant, the Tribunal does not accept that this has anything to do with the applicant's political opinion, race, nationality, religion or membership of a particular social group. On the applicant's own account the gang are seeking out the applicant because of something he has done in bailing out a friend from custody and not for any one of the five Convention grounds.

The Tribunal would add that it considers the applicant's statements that the gang is still looking for him when he has been in Australia for two years to be far fetched. Even if the applicant did have the problems claimed they do not appear to have been, on his account, of such a scale that he would still be sought two years later. As a result, the Tribunal does not accept this and does not accept that there is any real chance he will face problems if he returns to India.

Given that the applicant's claims do not reveal any Convention ground the Tribunal finds that the applicant does not have a well-founded fear of persecution for a Convention reason."

14 The amended application for review in substance raises two grounds. The first, under s 476(1)(a) of the Act, namely that procedures that were required by the Act or the regulations to be observed in connection with the making of the decision had not been observed. It is contended under that ground that the requirements of s 430 of the Act were not observed.

15 The second ground is a "no evidence" ground under s 476(1)(g). That ground has to be understood in light of s 476(4), the relevant provision of which is paragraph (b) that provides that the ground specified under 476(1)(g) is not to be taken to have been made out unless the person who has made the decision based the decision on the existence of a particular fact and that fact did not exist.

16 When the matter came on for argument today, counsel for the applicant announced that the second of the grounds was no longer advanced and that the matter would be argued only under s 476(1)(a). That concession, in my view, was in itself fatal to the success of the present application because, as I understand the findings and reasons of the Tribunal which I have set out above, the decision was based on two distinct grounds:

(1) that the applicant was not a member of a particular social group; and

(2) that in any event there was no basis for a well-founded fear of persecution, accepting for the moment that the threats alleged by the applicant could constitute acts of persecution.

17 The withdrawal of any ground challenging the second of those conclusions has the consequence that the conclusion stands. That in itself would be a sufficient basis to support the conclusion of the Tribunal and the application for review must be dismissed, even if error were shown under s 476(1)(a).

18 I turn to the ground under s 476(1)(a) which were the subject of a detailed argument by the applicant's counsel. Section 430(1) of the Act states:

"Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

(a) sets out the decision of the Tribunal on the review; and

(b) sets out the reasons for the decision; and

(c) sets out the findings on any material questions of fact; and

(d) refers to the evidence or any other material on which the findings of fact were based."

19 Counsel for the applicant contended that the Tribunal's "threadbare" reasons fail to comply with s 430(1) (b) and (c).

20 In my opinion there was plainly no failure by the Tribunal to comply with s 430(1)(c). The Tribunal has set out its findings of fact by reciting the substance of the evidence of the applicant which it accepted for the purpose of its decision, with the one stated exception. The factual basis for the decision is therefore plainly exposed by the reasons.

21 The more substantial of the applicant's arguments concern the alleged failure to comply with s 430(1)(b), namely an alleged failure to set out the reasons for the decision. The complaint is that the Tribunal failed to explain why the applicant did not come within a particular social group. In my opinion s 430 did not require the Tribunal to go to that extent.

22 I consider the Tribunal in the present case fulfilled the obligations imposed on it by s 430(1) by setting out the facts, and then expressing, as it plainly has, its conclusion that those facts do not have anything to do with any one of the five Convention grounds which it specified, including membership of a particular social group. Section 430, in my opinion, did not require the Tribunal to give a lengthy exposition of the law relating to what constitutes a particular social group. It is not required by s 430 to analyse legal principles. It was sufficient that the Tribunal express its conclusion that on the facts found the applicant was not a member of a particular social group.

23 If in a particular case it is necessary to refer to some aspect of the legal requirements of the Act to expose the reasons leading to the ultimate conclusion reached by the Tribunal, then that must be done. But in this case the reasons were, in my view, quite clearly stated simply by the assertion that the facts relied upon had nothing to do with a particular social group. That statement is and can only mean that the facts alleged are not sufficient to bring the person within the notion of membership of a particular social group.

24 The reason for the conclusion is plainly stated. Whether the reason is right as a matter of law is another issue altogether. Once the reason for the decision is exposed, whether it is right or wrong as a matter of law is a matter that can be investigated upon judicial review without there being the need for any further information from the decision-maker.

25 In my opinion, there was no failure to comply with the requirements of s 430, and no breach of s 476(1)(a).

26 For completeness, however, the court should refer to the legal requirements which are involved in the concept of membership of a particular social group because the ground of review under s 476(1)(e) vests jurisdiction in this court to set aside a decision if the decision involves an error of law. I consider it is plain that the facts asserted by the applicant do not give rise to the faintest suggestion that there could be a finding that the threats feared by the applicant arise from membership of a particular social group within the meaning of the Convention.

27 The notion of membership of a particular social group has been considered by the High Court of Australia in Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225. The judgments of the majority, Dawson J at 241-242, McHugh J at 263 and 266, and Gummow J at 285-286 establish that a particular social group cannot be defined solely by the persecution that is alleged. In this case it is clear on the summary of the facts given by the Tribunal that the only unifying characteristic of the group said to constitute a particular social group was the fear asserted by the applicant.

28 It is not asserted by the applicant, and there was no evidence before the Tribunal to suggest, that the applicant was himself a landowner. So the common bond asserted by the applicant between himself, his family and the family of Rakesh Shukla must rest upon the threatened harm that is the feared persecution relied upon. That is not a sufficient link for the purposes of the Convention.

29 In my opinion, on the facts asserted by the applicant, his claim for refugee status was most unmeritorious. It is hardly surprising that the Tribunal dealt with the matter in a short way. I think, with respect to the counsel for the applicant, it is unfair to describe the Tribunal's reasons as threadbare. They were certainly brief but they were to the point and they plainly expressed the reasons for the conclusion reached by the Tribunal that there was no ground to find that the applicant had a well-founded fear of persecution for a Convention reason.

30 In my opinion, the application for judicial review should be dismissed. In accordance with the normal practice there will be an order that the applicant pay the respondent's costs of the application.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice von Doussa.

Associate:

Dated: 30 March 2001.

Counsel for the Applicant: Mr M W Clisby

Solicitor for the Applicant: Mr M W Clisby

Counsel for the Respondent: Ms S J Maharaj, with Ms E Reed

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 9 March 2001

Date of Judgment: 9 March 2001