S1921of 2003 v Minister for Immigration
[2004] FMCA 1074
•2 December 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1921of 2003 v MINISTER FOR IMMIGRATION | [2004] FMCA 1074 |
| MIGRATION – Review of Refugee Review Tribunal decision – Sikh applicant – allegedly member of KCF – applicant not a credible witness – failure of Tribunal to consider relevant evidence – application dismissed. Migration Act 1958 (Cth) Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 |
| Applicants: | APPLICANT S1921 of 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2746 of 2004 |
| Delivered on: | 2 December 2004 |
| Delivered at: | Sydney |
| Hearing date: | 2 December 2004 |
| Judgment of: | Mowbray FM |
REPRESENTATION
| Advocate for the Applicant: | In person |
| Counsel for the Respondent: | Christos Mantziaris |
| Solicitor for the Respondent: | Blake Dawson Waldron |
ORDERS
The application be dismissed.
The applicant pay the Minister’s costs and disbursements of and incidental to the application fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2746 of 2004
| APPLICANT S1921 of 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an ex tempore judgment which has been revised and edited from the transcript. It relates to an application for prerogative relief concerning a decision of the Refugee Review Tribunal (the Tribunal) made on 21 June 1996.
The applicant, who is a national of India, arrived in Australia in 1988. He waited four years before applying for a protection visa on
10 August 1992. A delegate of the Minister found that the applicant did not have a valid claim as a refugee on 26 March 1993. The applicant applied to the Refugee Status Review Committee for review of this decision on 22 April 1993 and his case was transferred to the Tribunal on 1 February 1996.
The Tribunal hearing which the applicant attended was held on 19 June 1996. The Tribunal affirmed the decision of the delegate of the Minister on 21 June 1996 that the applicant was not entitled to a protection visa.
Claims before the Department and the Tribunal
The applicant claims that he has a fear of persecution were he to return to India on the basis of his political opinion, his religion and his ethnicity.
In summary, the applicant’s claims include the following allegations. He says he was a member of the Khalistan Commando Force (the KCF) in India whose primary aim was to establish a separate state for Sikhs. He put up posters, distributed written material and helped out other members. He went out on armed patrols, sought out informers and was “involved in fire fights”.
He was detained in August 1987 for these activities and interrogated. He claims he was released because he could not give relevant information. I note, however, that in later claims he resiled from the claim of having been detained.
Between August 1987 and 1988 he says he was in hiding. He claims that in March 1988 he and two friends were taken off a bus by police for questioning. Although a sympathetic police officer helped him to escape, his two friends took cyanide pills and died, according to his original application. He asserts that he left India in April or May 1988 and had no difficulty leaving the country from New Delhi.
He further says that after his arrival in Australia his uncle was tortured to death and his cousin killed. Both of them were treated in this way because of their political activities.
The Tribunal decision
The Tribunal decision and its findings are accurately set out in paragraphs 7 to 9 of the respondent’s submissions:
7. … The Tribunal made the following findings:
(a) That the applicant was not a truthful witness; his claims were largely contrived to assist him in seeking refugee status.
(b) That the applicant claimed to have been an active member of the KCF in 1987, a time when his replacement passport was issued in Sydney on 16 June 1987.
(c) That the applicant’s claims that other people had arranged to obtain the passport and transport him to Australia in 1987 were found to be “far fetched” and were not accepted.
(d) That the applicant was in India for an unspecified period of time before his arrival in May [1988] and was able to depart without hindrance six months after he claims to have been under suspicion.
(e) That the applicant’s lack of knowledge of the KCF and its operations indicated that he was not involved with the KCF.
(f) That there were inconsistencies in the accounts the applicant gave the Minister’s delegate and the Tribunal. For example: (i) before the delegate, the applicant said that he had been involved in violent activities and that he had killed 20-25 people but he resiled from this statement before the Tribunal; (ii) before the delegate, the applicant said that he had been armed but he denied this before the Tribunal; and (iii) the applicant told the delegate that he was arrested, detained and tortured, but he denied this before the Tribunal.
(g) That claims about the death of the applicant’s relatives are fabricated.
(h) That the applicant admitted that his previous statement that he had not been in contact with Department of Immigration officials until he had made his Protection Visa application was untrue.
(i) That the application [sic] failed to make a timely refugee application; and that this fact is indicative of the absence of a genuine fear of persecution
8: The Tribunal found that the applicant had no well- founded fear of persecution and that if the applicant still wishes to avoid return to the Punjab, he can reasonably relocate to another part of India.
9. Even if the Tribunal were wrong about aspects of these conclusions and accepted that the Applicant was a non‑violent member of the KCF when he was in India, the Tribunal found that the available evidence on the level of violence against Sikhs within the Punjab and India as a whole, led to the conclusion that the applicant does not face a real chance of persecution as a consequence of that involvement.
The applicant’s claims before this Court
No real grounds of review are set out in the application made to this Court on 3 September 2004. As the respondent suggests: it may be inferred that there are two grounds:
5. At its highest and clearest, the application states that
(a)The tribunal only considered the respondent’s evidence and “ignored all the facts” from the applicant’s “side”;
(b)The Tribunal did not accept the applicant’s evidence because the Minister’s delegate did not find the applicant to be a credible witness.
6.The application repeats the claim that the applicant feared persecution because of his membership of the KCF.
At the hearing, despite repeated attempts by the Court to elicit appropriate grounds, the applicant could only raise factual issues on which he thought the Tribunal had made mistakes. These included when he arrived in Australia and when and where his passport was issued. He also argued that the Tribunal did not trust him. He disputed the Tribunal’s finding that he could re-locate within India. At best he said that the Tribunal did not consider his application properly, but he was unable to expand on this apart from saying that there is no justice.
Consideration
Relying on the grounds that have been inferred by the respondent as being set out in the application, I turn first to the alleged failure to consider the applicant’s evidence.
There has been no particularisation or details provided about the evidence the Tribunal allegedly failed to consider. There is nothing in the Tribunal’s reasons which suggests that the Tribunal failed to consider any relevant evidence.
This ground must be rejected.
On the second ground, I can find no error in the Tribunal’s reasons for its findings on credibility. It was clearly open to the Tribunal to make an adverse finding on the applicant’s credibility. The Tribunal found that much of the applicant’s case was contrived and that the applicant was untruthful. Findings on credibility are the function of the decision maker par excellence, as McHugh J pointed out in Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at paragraph 67.
There was no error of law on this ground.
Conclusion
The application filed in this Court was deficient in that it did not identify anything in relation to the decision of the Tribunal or the proceedings before the Tribunal to assist the Court in determining whether any reviewable legal error was disclosed in the decision.
I repeatedly invited the applicant at the hearing to put to me anything that might assist in identifying a legal error, but apart from reiterating his dispute with various findings of fact made by the Tribunal, he was unable to assist me.
Counsel for the respondent Minister has submitted to me that the application must be dismissed as no reviewable legal error has been disclosed. I agree.
It is apparent the Tribunal formed an adverse view about the credibility of the claims being made by the applicant. The Tribunal found that his claims were largely contrived and that he was not a truthful witness. These findings and the other findings made by the Tribunal were reasonably open to it on the material before it.
I am satisfied that the Tribunal made no legal error for which this Court can set aside the decision.
In the circumstances, I dismiss the application.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Kelisiana Thynne
Date: 24 February 2005
0
1
0