S2018 of 2003 v Minister for Immigration - [2005] FMCA 239

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S2018 of 2003 v MINISTER FOR IMMIGRATION

[2005] FMCA 239

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of India.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) s.475A

Minister for Immigration v Wu Shang Liang (1996) CLR 259
KopalaPili v The Minister for Immigration & Multicultural & Indigenous Affairs (1998) 86 FCA 547
WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs 2004 FCAFC 74
Randhawa v The Minister for Immigration & Multicultural & Indigenous Affairs (1994) FCR 437
SZKFB v The Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC 142
Kamal v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 18
W148-00A v Minister for Immigration & Multicultural & Indigenous Affairs (2001) FCA 679

Applicant:

APPLICANT S2018 of 2003

Respondent:

MINISTER FOR IMMGRATION & MULITCULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG702 of 2004

Judgment of:

Scarlett FM

Hearing date:

21 February 2005

Delivered at:

Sydney

Delivered on:

21 February 2005

REPRESENTATION

Solicitors for the Applicant:

In person

Counsel for the Respondent:

Ms Pepper

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The Application is dismissed.
The Applicant is to pay the Respondent’s costs in the fixed sum of $4,500.00.
All other applications save as to costs are dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 702 of 2004

APPLICANT S2018 0F 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFARIS

Respondent

REASONS FOR JUDGMENT

This is an application to review a decision of the Refugee Review Tribunal. The decision of the Refugee Review Tribunal was handed down on 16 December 1997. That decision affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant seeks a review of that decision. In his application he says that the Tribunal acceded its jurisdiction when it made its decision. He says that the Tribunal erred in law when it made its decision. He also says that the Tribunal made a serious jurisdictional error, when it concluded that even if the applicant did have a well founded fear of returning to Punjab he would be able to relocate safely to another part of India.
The reason why this application was not lodged until 12 March 2004 was because the applicant was involved in an earlier set of proceedings. Those proceedings have come to an end. The applicant is a citizen of India. He arrived in Australia on 19 March 1996. On

13 May 1996 he lodged an application for a protection visa. He claims a well found fear of persecution on the ground of ethnicity and religion because he is a Sikh. He also claims that he has been imputed with holding a particular political opinion by the authorities.
He claims that in about January 1990 some members of the Khalistan Commando Force requested shelter in the family's farmhouse. The applicant says that the police raided the farmhouse and killed a member of the Khalistan Commando Force. He says that they arrested him and they arrested his father and his younger brother. The police released the applicant's brother the next day. He was only 15 years old. A little later the police released the applicant's father who was an elderly man. The applicant says that the police did not release him but held him in custody without trial.
He says that they held him without trial for nearly two years. During that time the applicant said that he was beaten on various occasions by the police. The applicant says that the police kept an interest in him after he was released. Whenever there was a major incident the police would come to his house and question the applicant. In September 1995 the Chief Minister of Punjab was assassinated. The applicant found out that the police had come to his home while he was away. The applicant feared that the police suspected him of being involved in the murder of the Chief Minister of Punjab.
He went into hiding and remained in hiding for about six months. The applicant then left for Australia using his passport and arrived in Australia in March 1996. A delegate of the Minister refused his application for a protection visa. As a result the applicant lodged an application for a review by the Refugee Review Tribunal. On page 94 of the court book the Tribunal member says in his decision:
That the Tribunal was unable to make a decision favourable to the applicant on the papers.
The applicant was given the opportunity to attend an oral hearing on

12 December 1997. The applicant attended that hearing with his migration consultant. He produced documents and gave evidence. The Tribunal member asked him questions. He answered those questions. Notwithstanding the fact that the applicant had given evidence and had produced further written evidence the Tribunal did not accept his evidence. The Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa.
From the Tribunal decision it is clear that the Tribunal did not accept the applicant's evidence on a number of issues. At page 99 of the court book there are accounts of the Tribunal putting questions to the applicant to test his story. For instance, the Tribunal put to the applicant that his recounting of events before the Tribunal was very different from that given in the Departmental interview. The Tribunal put to the applicant that it had great doubts about the fact that he could not remember the month when he was arrested and the month when he was released. In fact the Tribunal put to the applicant that it doubted that he was ever detained as he claimed to have been.
The Tribunal also put to the applicant that it had trouble accepting the fact that the authorities would have issued him a passport if he had in fact been in prison. The applicant said that he was asked a number of questions and that he replied to them. Nevertheless, the result of the hearing was that the Tribunal did not accept his evidence about having been detained by the authorities. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution in India. In the alternative, the Tribunal expressed the view that the applicant was able to live in another part of Delhi because he had lived in Delhi for six months.
I note that the applicant said that he was in hiding the whole time. The applicant has today told the court that he is currently in immigration detention in the Baxter Detention Centre. He has been in detention for about six months. He said that the Refugee Review Tribunal had acceded its jurisdiction because injustice had been done. He said that the Refugee Review Tribunal had made an error of law. This was because the Tribunal's decision was not right. He said the Tribunal asked him to provide a lot of evidence and proofs and even though he did do this, the Tribunal did not consider his application properly.
He said that it would be impossible for him to re-locate in India because he still could be killed. He said the Tribunal did not consider his evidence properly because they still found against him. He said that he told the Tribunal his whole story but the Tribunal did not give him a favourable decision. On behalf of the respondent Minister, Ms Pepper of counsel has argued that there has been no error of law. She has pointed out that the Refugee Review Tribunal had made a number of factual findings that it was not satisfied that the applicant was ever arrested as he claimed to have been.
She pointed out that a court conducting a judicial review of proceedings cannot review findings of fact. In her written submission, she said there was no evidence that the Tribunal had done anything except exercise its power in a bona fide way. She said the Tribunal weighed up the applicant's evidence and made its findings on the material before it. She referred me to Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) CLR 259. Ms Pepper submitted that the Tribunal was entitled to act in that way and she referred me to, the decision of Kopala Pili v The Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547. She also referred to the decision of WAIJ v The Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 74 at paragraph 30. Ms Pepper also referred to the fact that the Tribunal had applied the test known as, What if I am Wrong? She submitted that the Tribunal considered that if the applicant had a well-founded fear of persecution he could move to another part of India to avoid that persecution. She submitted that the Tribunal member had found that the applicant was able to stay in Delhi for six months without attracting the attention of the authorities. I note that the applicant said that he was in hiding the whole time he was in Delhi.
The approach taken by the Tribunal in respect of relocation is the approach set out in Randhawa v The Minister for Immigration, Local Government and Environmental Affairs (1994) FCR 437. This test has more recently been applied by the Full Court of the Federal Court in SKFB v The Minister for Immigration and Multicultural Affairs (2004) FCAFC 142. In reply the applicant reiterated that he was living in hiding and confirmed that he had been arrested by the police beforehand and was very badly treated. He said that even if he could live in another part of India the law was the same and there was no guarantee in the future that he would escape persecution.
In the circumstances of this case, that the Tribunal was not satisfied on the papers that it could make a decision favourable to the applicant, the Tribunal invited the applicant to attend a hearing. He did attend and he gave evidence. It is clear that the applicant was able to say to the Tribunal what he thought was relevant. The Tribunal member asked him a number of questions; he answered those questions. He produced other documents to the Tribunal.
I cannot see anywhere in the decision that the Tribunal has made an error of law or an error of jurisdiction. The sad fact for the applicant is that the Tribunal did not accept his evidence on relevant issues. It is quite clear from decided cases that it is the Tribunal that decides whether an applicant's evidence is believable or not. In the decision of Justice Mansfield in Kamal v The Minister for Immigration and Multicultural Affairs (2002) FCA 18, the Court held, and I quote:
It is not for the Court on reviewing a decision of the Tribunal to form its own view as to whether it would have given the perceived inconsistencies the significance attributed to them by the Tribunal or upon any such view to conclude that the Tribunal's assessment of the applicant's claim should not have been made. Those evaluated processes are for the Tribunal.
In the decision of W148-00A v The Minister for Immigration and Multicultural Affairs (2001) FCA 679, the Full Federal Court said, and I quote:
A finding as to credibility is a finding of fact and as the authorities indicate a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against or even strongly against the finding.
That is the case here. The Tribunal did not accept the applicant's evidence. The Tribunal correctly applied the, what if I am wrong test and concluded that even if the applicant did have a well founded fear of persecution it would be possible for him to live in another part of India. The applicant strongly disagrees with that finding. Nevertheless it is a finding made by the Tribunal which was open to the Tribunal on the evidence before it. There is no reviewable error. The application will be dismissed.
Costs follow the event. This is a matter where I propose to make an order for costs. The applicant is to pay the respondent's costs fixed in the sum of $4500.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: A. Coutman

Date: 7 March 2005