SZDWJ v Minister for Immigration - [2006] FMCA 103

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDWJ v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 103

MIGRATION – RRT decision – Indian claiming persecution for political activities – disbelieved by Tribunal – no error found.

Acts Interpretation Act 1901 (Cth), s.8
Federal Magistrates Court Rules 2001, r.9.03(2)
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A, 424A(1), 424A(3)(a), 424A(3)(b), 424B, 474(1), 483A, Pt.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572
VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471

Applicant:

SZDWJ

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1882 of 2004

Judgment of:

Smith FM

Hearing date:

19 January 2006

Delivered at:

Sydney

Delivered on:

19 January 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms S A Mason

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $3,000, in addition to the amount in Order 3 made on 8 August 2005.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1882 of 2004

SZDWJ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 28 April 2004 and handed down on 21 May 2004. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
The Migration Litigation Reform Act 2005 (Cth) has repealed s.483A, but the repeal does not affect the continuance of these proceedings (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth), s.8).
The Court’s jurisdiction under s.483A is the same as the jurisdiction of the Federal Court under s.39B of the Judiciary Act 1903 (Cth). Both are subject to limitations under Part 8 of the Migration Act, which have the effect that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claims should be believed, nor whether he qualifies for a protection visa.
The application in this Court has had a protracted history. It was filed on 18 June 2004 by a solicitor engaged on behalf of the applicant, Mr Ejaz Khan. A hearing date was fixed before the Registrar for 1 June 2005. Very shortly before that date, the applicant’s solicitor filed a notice of ceasing to act, without filing evidence that leave was not required under r.9.03(2) of the Federal Magistrates Court Rules 2001, i.e establishing that he had properly served his client with a notice of intention. The applicant did not in fact attend on that day and I dismissed the application for non‑appearance.
The applicant then, through the same solicitor, applied for the setting aside of that order, claiming that his migration agent had failed to inform his solicitor of a change of post office box at Griffith. By consent of the Minister, on 8 August 2005 I set aside the default order, and gave directions setting the matter down for hearing today. I gave the applicant leave to file an amended application with particulars raising, in particular, whether there had been compliance by the Tribunal of s.424A of the Migration Act. No amended application was filed by the applicant’s solicitors, and indeed no document at all was filed by him including a written submission as directed.
Very shortly before today’s hearing the solicitor filed a notice of ceasing to act, again failing to file evidence indicating that he had complied with r.9.03(2) by informing his client of his intention to withdraw. The applicant has, however, appeared today without representation, and did not seek an adjournment.
At the commencement of the hearing, the applicant sought to file an amended application, which I allowed in the absence of objection by the Minister. The applicant himself had no relevant submissions to make, but indicated he had relied on the documents which had been filed by his solicitor. I shall refer below to the contentions prepared by his solicitor, after explaining the nature of the applicant’s refugee claims and how they were dealt with by the Tribunal.
The applicant arrived in Australia in July 2003 and lodged an application for a protection visa on 24 July 2003 employing an agent, Mr Harold Jones. His answers to the questions in the form indicated why he was seeking protection in Australia so that he did not have to return to his country of nationality, India. He claimed that he had been a member of the business community and had been friends with people who were active in the Akali Dal (Badal) Party in the Punjab, and in particular with a person who was a member of the state parliament for that party. He claimed to have been “entrusted” by that person with “running activities for the youth wing of the Party”.
The applicant’s application referred to elections held in February 2002 in which his party was defeated by the Congress Party and his friend lost his seat and then faced charges of corruption. He said: “as a former associate as I will discuss I was held twice and cruelly treated for a man of my age”. After referring to charges of corruption which had been made against some members of his party, he said:
I was not guilty of any corruption and have no knowledge of the affairs of (the MP) but in August 2002 I was detained by the Police and taken to the Banga Police Station. I was held for 1 week and was beaten and humiliated and questioned as to what I knew of corruption by Akali Dal Members or other activities which would interest their prosecutors.
The applicant claimed that he had again been detained in January 2003 and been held for about five or six days, and that after his release he had “decided to move around whilst I tried to work out what to do”. He then came to Australia.
A delegate refused the application on 16 September 2003. In the course of her statement of reasons, she noted that the applicant’s passport indicated that he had been in Indonesia throughout August 2002, and pointed to other aspects that caused her to doubt his claims. She thought, in any event, that the authorities would not have a continuing interest in the applicant.
An application for review by the Tribunal was lodged on 17 October 2003 by the applicant’s agent, Mr Jones. The form included the comment: “It is unfortunate the Delegate has found concerns as to the credibility of my claims and I will have to give further thought as to how I overcome these perceptions”. The Tribunal was sent two documents purporting to establish that in 1998 he had been appointed as general secretary of the youth wing of the “All India Youth Wing Akali Dal (Badal) Circle Banga District Nawanshahr Punjab”.
The applicant was invited to attend a hearing before the Tribunal on 5 April 2004 to be held by video link from Griffith. He was asked to bring his passport to the hearing. There is no clear evidence whether he did so, but this seems probable. The questioning that occurred in the course of the hearing is summarised in the Tribunal’s statement of reasons, and no other evidence is before me as to what happened at the hearing.
According to the Tribunal, the applicant initially maintained that he had been detained by police in August 2002 and specifically said he had been picked up on 15 August 2002 which was Republic Day. The Tribunal said that it then “put to the applicant the fact that his passport showed he was outside India at the time when he claims to have been first detailed in August 2002 and that this fact had been raised in the delegate’s decision”. The applicant then altered his evidence and said that his detention had been on 15 July 2002. He explained that he had maintained the erroneous date, because he had been so advised by his agent or a friend.
The Tribunal also indicated that it questioned the applicant concerning his political relationship with the MP, and asked him questions about the election which the MP had lost. The Tribunal also said that it:
outlined a range of country information to the applicant (cited below) that the Punjab is basically peaceful and again becoming prosperous, that militancy had ceased and that a majority of Punjabi’s had voted for the Congress Party at the last election because they were concerned about corruption in Akali Dal.
The Tribunal said that it also discussed with him information about exit controls in India. The Tribunal then in its reasons extracted some country information concerning a situation of Sikhs in India, and the situation in Punjab.
In its “Findings and Reasons”, the Tribunal accepted that the applicant “was, and may still be, a member of the All India Youth Wing Akali Dal (Badal)” and that “the membership card and the letter appointing the applicant to the position of General Secretary for his local Banga area are genuine”. It then continued, in two paragraphs which were the subject of grounds of review:
However, the Tribunal does not accept that his membership of this group, or his position as a general secretary of a youth wing of a local branch of this political party, or the fact that he may have been entrusted to run the activities for the youth wing in his local area, would bring him to the attention of the authorities. The Tribunal finds these activities to [be] locally based and therefore of a low level and notes country information cited above that Sikhs do not constitute a persecuted group at the present time and that rank and file members of groups that were at one time targeted as militant groups, for example All India Student Sikh Foundation, are in general terms now safe and that people who are not high profile militant suspects are not at risk in Punjab. The Tribunal notes that the applicant’s term as General Secretary expired on 14 January 2003 according to his membership card. The Tribunal has further considered whether the applicant’s claim that he was active with a politician in Bihar, combined with his membership of and position in, the All India Youth Wing Akali Dal (Badal), would have brought him to the attention of the authorities in Punjab but finds, for the same reasons, and because the applicant was not a member of a political party in Bihar, that it would not.
While the Tribunal accepts that the applicant may have known the local parliamentary member for Banga, [the MP], it does not accept that they had a close association or relationship or that he was one of his main supporters or that anywhere [the MP] went, he went with him or that he travelled with him throughout his constituency when he gave speeches or that while he worked with him he left his business in the hands of his employees. The Tribunal does not accept that, if the applicant was as politically involved as he claims, he would not know the year of the election or that he would not know the name of the candidate who defeated his claimed close friend. The Tribunal accessed the website of the Punjab Government Legislative Assembly of Punjab results on 5 April 2004 ( & ( and found that the person who defeated [the MP] of the Bahujan Samaj Party was Tarlochan Singh of the Indian Congress Party, not a man named Kainth, although he was a candidate. The Tribunal does not accept the explanation the applicant gave when this was put to him at the hearing that he did not remember due to the pressure and tension he had been under and because he had to leave his factory in the hands of his family. These are fundamental matters relating to the applicant’s central claim that, as a result of his association with [the MP] and their work together on the election, he was subsequently twice detained.
From that reasoning, the Tribunal concluded:
It follows that, because the Tribunal does not accept that the applicant had a close association with [the MP] for the reasons outlined above, it does not accept that the applicant was detained twice by the police, beaten, interrogated and treated cruelly because of this close association or because of what he knew of the corruption of Akali Dal Members. The Tribunal does not accept that the applicant was detained on 15 August 2002 or January 2003 as he claimed in his protection visa application and at the hearing until it was pointed out to him that he was overseas in August 2002, or that he was detained on 15 July 2002 as subsequently claimed.
The Tribunal then referred to a further reason for that finding:
This finding is supported by the fact that on the first claimed incidence of detention, the applicant was in fact in Indonesia and it was only when it was pointed out to him at the hearing that he departed India on 30 July 2002 and returned from Indonesia on 22 October 2002 that the applicant then claimed he was first detained in July 2002. The applicant had said twice at the hearing that he was sure he was detained on 15 August 2002 and that he remembered this because it was Republic Day and he had been at a function that day (the Tribunal has confirmed via the ANTOR facts website, accessed on 16 April 2004, that 15 August is Independence Day in India). The Tribunal does not accept the applicant’s explanation that his adviser had told him he could not correct his evidence or that he said “you have told this date, you cannot change the date” and that he had to stick with his original story as the Tribunal is confident that his adviser would want the applicant to clarify his evidence at the hearing if he wanted to do so. Nor does the Tribunal accept that the applicant could provide any documentation to support a claim that he was detained, or he would have done so.
The Tribunal said:
It further follows that the Tribunal does not accept that following the detention the applicant moved around or that his business suffered or that he survived on money from friends. Nor does the Tribunal accept that the police bugged his phone and discovered that he was staying at his uncle’s house in Delhi.
The Tribunal finds that the applicant has had only a local and low level political involvement and that he was never of any interest to the authorities or detained by the police.
The Tribunal then referred to the applicant’s departure from India on numerous occasions on a valid passport in his own name, and concluded that this supported its finding that “he is of no interest to the authorities”. Its final conclusion was:
The Tribunal finds that there is not a real chance of serious harm, amounting to persecution, now, or in the foreseeable future, to the applicant arising out of his low level and local political involvement with the youth wing of a legal political party and that he has not been of adverse concern to authorities in the past. This finding is supported by the country information cited above.
Taking into account the applicant’s claims, both individually and cumulatively, the Tribunal finds that he does not face a real chance of persecution either because of his political opinion, imputed political opinion, ethnicity or religion or for any other Convention reason, now or in the reasonably foreseeable future and finds that his fear of what might follow his return to Punjab state now, or in the reasonably foreseeable future, is not well founded within the meaning of the Convention. He is not a refugee.
The applicant’s original application for review contains five grounds. Ground one is:
1.The Tribunal accepted that the Applicant was the General Secretary of the Youth Wing of the Akali Dal (Badal) in the Banga area but it did not accept that his membership of the Akali Dal (Badal) or his position as General Secretary of the Youth Wing in his local area would bring him to the attention of the authorities. The Tribunal failed to give reasons for this finding.
The complaint in this ground that the Tribunal “failed to give reasons” for the conclusion that it did not accept that his position in the Akali Dal party would bring him to the attention of the authorities has no substance. The finding is found in the first sentence of the passage in the Tribunal’s reasons I have extracted above at [15], and the Tribunal’s subsequent sentences explain its reasons for that conclusion. It was based on its assessment that his activities were “locally based and therefore of a low level”, upon country information concerning the position of Sikhs and of rank and file members of Sikh parties, and upon the rejection of the applicant’s claims to have had a close association with the MP, and its consequential rejection of his claims to have suffered persecution in India.
This finding is also a finding which is the subject of the amended application which was filed in Court today. The amended application repeats the contention that “the Tribunal did not explain on what basis the Tribunal concluded so”, which I have already dealt with.
A second contention in the amended application is that “the Tribunal did not give this information to the applicant for the purpose of s424A of the Act”. This contention is obscure and the applicant did not seek to elaborate it to me. In my opinion, a duty under s.424A(1) did not arise in relation to the Tribunal’s findings on the applicant’s claims about his political position. This was a matter of assessment for the Tribunal based on the applicant’s evidence given at the hearing in elaboration of his original visa claims. It was not based on information which the applicant did not give for the purposes of the application for review (see s.424A(3)(b)).
Ground two in the original application is:
2.The Tribunal misunderstood the Applicant’s claim in respect of his arrest and torture by the police. The evidence of the Applicant suggests that he was detained, interrogated and tortured by the authorities because he was closely associated with the local MP, [the MP], who was believed to be guilty of corruption, and that it was due to that association and the alleged corruption that the authorities detained him and beat him up. The Tribunal failed to take into account the evidence given in relation to the Applicant’s detention, interrogation and torture and therefore fell into error.
There is no substance to the contention that the Tribunal failed to take into account the applicant’s evidence. Plainly it addressed it, but did not accept its veracity. In my view, the Tribunal did address all the claims made by the applicant, and it was open to it as a matter of law not to be persuaded as to their credibility.
Ground three of the original application is:
3.The Tribunal relied upon various Country Reports in reaching its decision. The Tribunal failed to disclose the time and date of such Country Reports especially in respect of paragraph 6.89 to 6.94 under the headings Human Rights Concerns in Punjab and this information is therefore not acceptable. Furthermore, the Tribunal failed to put this adverse information to the Applicant for his comments and therefore breached the rules of procedural fairness and made a jurisdictional error. (emphasis in original)
This ground has no merit. The identified paragraphs appear in an extract from a United Kingdom Home Office report which was extensively set out by the Tribunal. They were not, however, relied upon by the Tribunal as part of its reasoning process. The Tribunal, according to its account of the hearing, did put to the applicant aspects of the country information which it thought particularly relevant, and which it eventually relied upon in its findings. The Tribunal was not obliged to raise general country information with the applicant by way of an invitation for written comments (see s.424A(3)(a), and Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572).

Ground four of the original application is:
4.The Tribunal in its findings stated that:
“While the Tribunal accepts that the applicant may have known the local parliamentary member for Banga, [the MP], it does not accept that they had a close association or relationship or that he was one of his main supporters or that anywhere [the MP] went, he went with him or that he travelled with him throughout his constituency when he gave speeches or that while he worked with him he left his business in the hands of his employees”.
The Tribunal findings are based on the Applicant’s failure to give the exact date of the election and the name of the person who defeated [the MP], during an interview.
The Tribunal erred in ignoring the Applicant’s evidence that he did not remember the date and time of such incidents due to the pressure and tension he had been under.
The ground as framed does not identify jurisdictional error, but argues with the merits of the Tribunal’s assessment of the applicant’s explanation for his failure to remember significant details of the election contested by the MP with whom he claimed a close association. I am not persuaded that the Tribunal did not consider the applicant’s explanation, and I consider that as a matter of law it was open to the Tribunal to reach its conclusions.
Ground five of the original application is:
5.Subject to the above the Tribunal breached the rules of procedural fairness.
This is devoid of particulars and I cannot give it meaningful application to the Tribunal’s proceedings.
Apart from the grounds raised by the documents filed by the applicant, counsel for the Minister invited the Court to consider the paragraph, which I have extracted above at [17], in which the Tribunal discussed the significance of the applicant’s inconsistent evidence as to the date of his first detention. Counsel addressed whether the reasoning showed the use of information which was required to be the subject of a notice under s.424A(1). It was not contended that the reasoning did not form an integral part of the Tribunal’s reasoning to its conclusion not to accept the applicant’s claims of a close relationship with the MP and of persecution for that reason.
However, I accept counsel’s submission that any information, which has been used by the Tribunal as a reason for rejecting this part of the applicant’s claimed history, was information given by the applicant to it at the hearing. The underlying information was contained in a passport which appears to have been presented at the hearing, as well as having previously been given to the Department. More directly, the essential reasoning compared inconsistent statements of the applicant given to the Tribunal at its hearing, and his further statements purporting to explain the inconsistency. To the extent that the paragraph shows the use of information, it was, therefore, covered by the exception in s.424A(3)(b). The Tribunal’s conclusions themselves in that paragraph were matters of assessment of the applicant’s evidence which do not need to be the subject of a notice under s.424A(1) and s.424B (see VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at [24(iii)]).
For the above reasons, I do not consider that the applicant has identified any jurisdictional error affecting the Tribunal’s decision. The Tribunal’s decision is therefore a privative clause decision for which relief is barred by s.474(1) of the Migration Act, and I must dismiss the application.

I certify that the preceding thirty‑four (34) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 6 February 2006