Applicant S1921/03 v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 387

FEDERAL COURT OF AUSTRALIA

Applicant S1921/03 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 387

APPLICANT S1921/03 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1963 of 2004

JACOBSON J
1 APRIL 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1963 of 2004

On appeal from the Federal Magistrates Court of Australia

BETWEEN:	APPLICANT S1921/03 APPELLANT
AND:	MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	JACOBSON J
DATE OF ORDER:	1 APRIL 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant is to 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
NEW SOUTH WALES DISTRICT REGISTRY	N 1963 of 2004

On appeal from the Federal Magistrates Court of Australia

BETWEEN:	APPLICANT S1921/03 APPELLANT
AND:	MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	JACOBSON J
DATE:	1 APRIL 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of Federal Magistrate Mowbray given on 2 December, 2004 dismissing an application for review of a decision of the Refugee Review Tribunal (“RRT”) handed down on 21 June, 2004. 

2. The RRT affirmed a decision of a delegate of the Minister refusing to grant the appellant a protection visa.  The application for review was filed with the Federal Magistrates Court on 3 September, 2004, more than eight years after the decision of the RRT.  The delay is explained, in part, by the fact that the appellant was, for a period of time, a member of what is sometimes described as "the Muin class action", see Muin v Refugee Review Tribunal; Liev Refugee Review Tribunal (2002) 190 ALR 601.

3. The appellant joined the Muin class action on 22 March, 1999.  On 19 June 2003, he filed a draft order nisi in the High Court of Australia seeking the issue of constitutional writs.  That application was filed after orders were made in the High Court providing for the members of the Muin class action to bring separate proceedings following the delivery of judgment by the High Court in the Muin case. 

4. The matter was remitted to the Federal Court, and on 20 February 2004, Emmett J, made an order refusing the request for an order nisi in the appellant's claim, together with 707 other similar actions; see Applicant S1174 of 2002 v Refugee Review Tribunal (2004) 80 ALD 327.

5. The appellant is a citizen of India.  He is a Sikh from the Punjab.  He arrived in Australia on 4 May, 1988 and lodged an application for a protection visa on 10 August, 1992.  The Minister's delegate refused his application on 26 March, 1993.  The appellant made a number of claims in the RRT focusing on the persecution of Sikhs, and containing elements which the RRT construed as coming within the Convention reasons of race, religion, nationality and political opinion.  The RRT proceeded on the basis that the evidence was to be properly and fully considered under the political opinion ground.

6. The appellant claimed to have been a member of the Kahlistan Commando Force (“KCF”) which wanted a separate State for Sikhs.  He claimed he was active in protecting the Sikhs from violence, seeking out informers and generally coming into conflict with central forces.  He claims that as a consequence of his involvement with the KCF, he was detained and mistreated by police for 3 days in August, 1987 and for 5 days in March, 1988. 

7. The RRT noted that the appellant determined to escape from India, and that he arranged for a visa after organising a passport in 1987, that is to say prior to his first detention.

8. The appellant claimed that he was not detained at Delhi Airport because there was no sophisticated detection procedure.  The appellant claimed that after his departure, his uncle was tortured to death in 1991, and that his cousin was murdered. 

9. He claimed to also be a member of the Punjab Human Rights Association (“PHRA”) and claimed that his political opinions, associated with the KCF and the PHRA, would bring him to the attention of the Indian authorities if he returned. 

10. The RRT observed that at the Departmental interview, the appellant stated that he had been involved in violent activities using guns and hand grenades.  However, the RRT noted that when it was pointed out that this seemed at odds with his membership of the PHRA, he stated that he had only remained a member for a short time.

11. The RRT found that the appellant was not a truthful witness, and that his claims seemed to be largely contrived to assist him in seeking refugee status.  Nevertheless, it observed that this was not to say that he was unaffected by the situation in the Punjab.  The RRT noted that the appellant claimed to be an active member of the KCF in 1987 at a time when his replacement passport was issued in Sydney, and it found that the appellant's claim that other people obtained a passport and arranged his transport to Australia to be far-fetched.

12. The RRT also found that the appellant displayed a lack of knowledge about the philosophy and aims of the KCF, and noted that there were inconsistencies in his evidence.  The RRT noted that at the hearing, the appellant resiled from statements he made to the delegate that he had killed 20 to 25 people, and that he was detained and tortured.  The RRT found that the appellant's claims about the death of his relatives were fabricated.  It also found that his failure to make a timely refugee application was indicative of the absence of a genuine fear of persecution.

13. In assessing the appellant's claims, the RRT concluded that he was not a truthful witness and he was willing to make whatever statements he thought would enhance his claims of being recognised as a refugee.  The RRT said that even if it was wrong about aspects of its conclusions, the available evidence led to the conclusion that he did not face a real chance of persecution, and that he could reasonably relocate to another part of India. 

14. The RRT carefully analysed and set out in some detail the history of violence which beset the Punjab from 1984.  The RRT said :-  

    "The information available regarding the situation at the time the Applicant came to Australia in 1988 supports the finding that there was a general atmosphere of violence and tension as the government sought to suppress Sikh separatism and militancy.  While it is significant that the Applicant was not once apprehended by the police, his fear of being harmed in that violent atmosphere was one of the motivating factors for flight, although any fear of persecution for a convention reason was not, in the Tribunal’s view, well-founded as the authorities had ample time in which to apprehend Applicant, as well as the means, yet did not do so despite the pervasive crackdown on suspected supporters of the Sikh separatist movement.  In any event, since that time the situation in the Punjab has substantially changed."

15. The RRT referred to evidence which indicated that the level of fear and violence in the Punjab area had diminished since 1993.  The RRT concluded as follows:-

    “In considering the evidence, the Tribunal concludes that there has been a substantial change in circumstances in Punjab since the Applicant left, and more particularly, over the past three years or so.  The indiscriminate violence of both the authorities and some Sikhs pursuing their aims has dissipated and been replaced by a situation where the authorities target those people it suspects of being ‘militants’ or who have some ‘established history of terrorist associations’.  The Applicant does not fit into either of these categories.  Given the evidence regarding the attitude and actions of both police and citizens to those associated with the Khalistan agitation, the Tribunal believes that the change will endure.

    The applicant was not a refugee when he left India.  In any event, since he left there has been a substantial and enduring improvement in the situation and the Applicant is not at real risk of being identified as or suspected to be a militant, or to be associated with terrorists on the basis of some low key, undetected activities he claims he was involved in some eight or nine years ago.  As discussed above, the Tribunal does not accept that he was active or even suspected of involvement in militant or terrorist activities in India.  He was not questioned or detained at a time when hundreds of others suffered that fate during mass arrests and sweeping, indiscriminate roundups of suspects.  Such security responses have, in any event, ceased in more recent times and the Tribunal concludes that the Applicant has no more than a remote chance of being detained and tortured or killed or otherwise persecuted on account of his political opinions or any other Convention ground in the foreseeable future” 

    …

    The Tribunal agrees with the view that only prominent activists might be at risk outside the Punjab, in light of the substantial decrease in violence perpetrated on Sikhs by the various security agencies.  The Applicant has done nothing, either while he was in India, or since that time, to indicate that he is an organiser or a leader or otherwise associated with Sikh militant groups in a way to attract the adverse attention of the authorities.  Therefore, even if he does not wish to return to Punjab, he can safely and reasonably return to another part of India where he will be free from any real chance that he will be persecuted and can pursue a livelihood without significant hindrance.

    In summary, the applicant did not have a well-founded fear of persecution for a Convention reason when he left India and there has been no change in circumstances since then to support a conclusion that he has become a refugee sur place, in fact, there has been a substantial and enduring improvement in the situation in the Punjab in recent years.  Even if the Applicant does not wish to return to the Punjab, it is reasonable for him to relocate to another location in India.  In assessing the evidence before it, the Tribunal concludes that the Applicant is not a refugee as his fear of being detained, tortured, killed or otherwise persecuted is not well-founded because he does not face a real chance of such harm being inflicted upon him for a Convention reason should he return to India."

16. Federal Magistrate Mowbray observed that no real grounds of review were set out in the appellant's application, and despite repeated attempts by the Court to elicit appropriate grounds, the appellant was only able to raise factual issues. 

17. Federal Magistrate Mowbray inferred that there were two grounds of the application.  The first was that the RRT only considered evidence of the respondent and ignored the appellant's side of the evidence.  The second was that the RRT did not accept the appellant's evidence because it did not find him to be a credible witness.  This was said to be a reviewable error. 

18. The learned Magistrate observed that there was no particularisation of the evidence which the RRT allegedly failed to consider, and he found that there was nothing in the RRT's reasons to suggest that it failed to consider any relevant evidence.  The Magistrate also found that it was clearly open to the RRT to make findings about the appellant's credibility, noting that this is a function of the decision-maker “par excellence”; see Re Minister for Immigration and Multicultural Affairs ex parte Durairajasingham (2000) 168 ALR 167 per McHugh J.

19. The learned Federal Magistrate concluded that no reviewable error was disclosed, and he dismissed the application. 

20. The grounds set out in the Notice of Appeal are that:-

    “The federal magistrate … failed to find error of law, jurisdictional error, procedural fairness and relief under s39B of the Judiciary Act 1903

    The honourable judge erred in considering the real state of affairs of the applicant feared harm and also the present government fail to protect civilian life which is world wide concern today.  I will file more grounds later.”

21. The appellant appeared in person this morning.  He pointed only to a factual error made by the RRT, and renewed his complaint that the RRT did not believe his claim.  The main point which he made this morning was that he requested more time to obtain legal advice and assistance.

22. He told me that his friends are collecting money for him to obtain legal representation, and that he wants an adjournment for 3 months.  He told me that he has contacted the Legal Aid office but legal aid has been refused. 

23. I have considered the appellant's request for an adjournment very carefully, but in the exercise of my discretion, it does not seem to me that I should grant an adjournment.  This is because, as was submitted by counsel for the Minister, the appellant has had ample time to obtain legal assistance.

24. In particular, the application for constitutional writs was refused by Emmett J on 20 February, 2004 and the proceeding in the Federal Magistrate's Court was commenced in early September, 2004.  Moreover, the appellant has been in Australia for more than 16 years. 

25. Further, when this appeal was before me for directions on 11 February 2005, the appellant asked me to delay the listing of the hearing of the appeal for a period to enable him to obtain legal representation.  I did so, notwithstanding that he is in immigration detention.  I listed the matter for hearing on 18 March, 2005 to give the appellant an opportunity to obtain legal representation.

26. The hearing date of 18 March, 2005 was deferred to today but he has still not obtained legal representation. 

27. It seems to me, therefore, that the appellant has been given sufficient time and that I could not be confident that even if I were to grant an adjournment that he would be represented before me on the next occasion. 

28. I have taken into account the fact that the appellant is not legally represented.  However, it is plain that there is no error in the approach that was taken by Federal Magistrate Mowbray.  The grounds stated in the Notice of Appeal do not disclose any appealable error.

1. Quite apart from that, as I have said, it is clear from the history of the matter, as I have set out in this judgment, that no appealable error is disclosed in the reasons for judgment of the Federal Magistrate.  It follows that I must dismiss the appeal with costs.

I certify that the preceding twenty nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Date:               8 April 2005

The Appellant appeared in person
Counsel for the Respondent:		Mr C Mantziaris
Solicitor for the Respondent:		Blake Dawson Waldron
Date of Hearing:		1 April 2005
Date of Judgment:		1 April 2005