SZDWJ v Minister for Immigration &Multicultural and Indigenous Affairs

[2006] FCA 688

FEDERAL COURT OF AUSTRALIA

SZDWJ v Minister for Immigration &Multicultural & Indigenous Affairs
[2006] FCA 688

MIGRATION –  protection visa denied - application for review – fear of persecution – Indian national – member of Akali Dal political party – assessment of credibility - no jurisdictional error – appeal dismissed

SZDWJ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL
NSD 179 OF 2006

FRENCH J
11 MAY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 179 OF 2006

On appeal from a decision of the Federal Magistrates Court of Australia

BETWEEN:	SZDWJ APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	11 MAY 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the respondent’s costs of the appeal.

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	NSD 179 OF 2006

On appeal from a decision of the Federal Magistrates Court of Australia

BETWEEN:	SZDWJ APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	FRENCH J
DATE:	11 MAY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1. The appellant is a citizen of India of Punjabi ethnicity and Sikh religion.  He has a wife and two children who are still in India.  He has a Bachelor of Science Degree and a Master of Science and describes his occupation as motor engineer.  He has travelled out of India many times to Thailand and Indonesia for business.

2. The appellant came to Australia on 11 July 2003.  On 24 July 2003, he lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA).  That application was refused by a delegate of the Minister on 16 September 2003.  On 15 October 2003, the appellant applied to the Refugee Review Tribunal (the Tribunal) for a review of the delegate’s decision.  On 28 April 2004, the Tribunal affirmed the decision not to grant him a protection visa.

3. The appellant sought judicial review of the Tribunal’s decision in the Federal Magistrates Court.  That application came on for hearing on 19 January 2006 and on that date, his Honour, Smith FM, dismissed the application.  On 6 February 2006, the appellant filed a notice of appeal in this Court against the judgment of the Federal Magistrates Court. 

4. When the matter came on for hearing, the appellant appeared on his own behalf, assisted by an interpreter.  I indicated after hearing from him that his submissions merely challenged the findings of fact on the part of the Tribunal and that there was nothing in what he said or in what I had read in the reasons of the Tribunal and the reasons of Smith FM to indicate that there had been any jurisdictional error of the kind that would support an order setting aside the decision of the Tribunal or of the Magistrate.

   The appellant’s claims and evidence

5. The appellant claimed before the Tribunal that he had a well-founded fear of persecution on account of his political affiliations with a Sikh party known as Akali Dal (Badal) and, in particular, with a politician called Mohan Lal who was the Member of the State Parliament for the Akali Dal party.  He claimed to have been entrusted with running activities for the youth wing of that party.

6. The appellant claimed that, because of his association with the party and false allegations of corruption, he was detained by police in August 2002 for a week and in the course of that detention, was beaten, humiliated and questioned about corruption on the part of Akali Dal members.  He claimed also to have again been detained in January 2003 for five or six days and treated in the same way.  He said that, following those events, he was frightened and knew he had to do something.  He decided to move around while he tried to work out what to do.  During that time his business suffered as he was not there to manage it and he had to  survive on money provided by friends.  He was too afraid to remain in India and he decided to seek safety in Australia.  He said he was afraid of the police, who acted on orders from the government. He was afraid to return to India as he would again be detained, beaten and humiliated.

7. The Tribunal referred to his written claims in support of his application for a protection visa and also evidence that he had given at the hearing.  In particular, it appeared that from his passport he had in fact been out of India in 2002 at the time at which he claimed to have been detained.  When this was put to him, he said that he had been detained in July 2002, not in August. He had made a mistake in his initial application, but his migration adviser had told him not to change his story. This matter was of significance in the Tribunal’s assessment of his credibility.  This is particularly so since he had claimed initially to the Tribunal, in the course of the oral hearing, that he was picked up by police on 15 August 2002, which he said he remembered because it was Republic Day and he had been at a function on that day.

8. The Tribunal also put questions to the appellant regarding the level of his political activity and the fact that he could not recall the date of the election or the name of the candidate who won the seat, which he claimed to have been working on with Mohan Lal throughout the election which had occurred in February 2002.  The Tribunal put to him country information to the effect that Punjab is basically peaceful and becoming prosperous, that militancy had ceased and that a majority of Punjabis had voted for the Congress Party at the last election because of concerns about corruption in Akali Dal.

9. The Tribunal put to the appellant that it had information from the Department of Foreign Affairs and Trade that no one of any concern to the authorities would be allowed to leave India legally.  The appellant was given the opportunity to comment on these things.

10. The appellant provided documents at the hearing concerning his claim to membership of the All India Youth Wing of Akali Dal. One was a membership card with the name, signature and photograph of the appellant and a designation of General Secretary, dated 15 January 1998.  The other was a letter dated 14 January 1998 appointing him to the position of General Secretary.

    The Tribunal’s reasons for decision

11. In its reasons for decision, the Tribunal, after reviewing what it put to the appellant at the hearing and his responses, also set out at some length country information relating to India and, in particular, the Punjab and the position of Sikhs in the Punjab and in India.  The bulk of this information came from the United Kingdom Home Office in a document dated October 2003, drawn from a wide range of sources.

12. The Tribunal accepted that the appellant was and might still be a member of the All India Youth Wing of Akali Dal, and accepted that the membership card and the letter appointing him to the position of General Secretary for his local area were genuine.  It did not accept that his membership of the group or his position as General Secretary of the youth wing of a local branch would bring him to the attention of the authorities.  It found these activities to be locally based and of a low level and noted country information that Sikhs do not constitute a persecuted group at the present time, that rank and file members of groups at one time targeted as militant are in general terms now safe, and that people who are not high profile militant suspects are not at risk in the Punjab.  The Tribunal noted that his term as General Secretary expired in January 2003.

13. The Tribunal accepted that the appellant might have known the local parliamentary member for Banghar, Mohan Lal, but did not accept that they had a close association or relationship, or that he was one of the main supporters for Mohan Lal.  It did not accept, therefore, that he was detained twice by police, beaten, interrogated and treated cruelly as he claimed because of that close association or because of what he knew of the corruption of Akali Dal members.  It did not accept that he was detained in August 2002 or January 2003.  It referred to the evidence concerning the date of his first detention. It did not accept his explanation in relation to his error about the dates nor that his adviser told him he could not correct his evidence.  The Tribunal did not accept, therefore, that following a detention, he moved around or that his business suffered or that he survived on money from friends.  It found that he 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 also found that because the appellant successfully departed India on numerous occasions on a passport in his own name, he was of no interest to the authorities.  The Tribunal concluded that there was no real chance of serious harm amounting to persecution now or in the foreseeable future to the appellant, arising out of his low level and local political involvement with the Youth Wing of the party and that he had not been of adverse concern for authorities in the past.

    The Federal Magistrate’s decision

14. When the matter came on for review before Smith FM, he went through each of the grounds of review, including the proposition that the appellant had not been given adequate notice of matters adverse to it.  For example, it was said in the application that the Tribunal had relied upon various country reports in reaching its decision and had failed to disclose the time and date of those reports.  It had failed to put adverse information to the appellant for his comments and therefore breached the rules of procedural fairness.  The learned magistrate found that this ground had no merit.  The identified paragraphs had appeared in an extract from the United Kingdom Home Office report which was extensively set out by the Tribunal.  They were not relied upon as part of the Tribunal’s reasoning process.  It did put to the appellant aspects of the country information which it thought particularly relevant and which it did rely upon in its findings.

15. None of the grounds of review were found to have any merit.  No jurisdictional error was disclosed. 

    The grounds of appeal

16. The grounds of appeal against Smith FM’s decision, as set out in the notice of appeal, are as follows:

    ‘1.The Honourable Federal Magistrates Court erred in interpreting the construction of s 424A of the Migration Act 1958 (‘the Act”).

    2.His Honour failed to determine that the purpose of s424A was not served in the proceeding of this applicant.

    3.The Honourable Court also erred in law in determining that the Refugee Review Tribunal (“the Tribunal”) was in a breach of procedural fairness.

    4.        Additional details will be provided later.’

    No subsequent document has been filed and when he appeared at the hearing today, the appellant confined his remarks to expressing concerns about the Tribunal’s findings that he was involved only at a low level in the affairs of the Akali Dal party and its findings in relation to the date of his detention.  He said that he could obtain further documents from India to support his position.

17. None of the appellant’s remarks have identified any error of law on the part of the Tribunal and, of course, it is too late in the day for new evidence to be brought to this Court which could have been put before the Tribunal.  It is not for this Court to interfere with decisions that the Tribunal has made on matters of fact.  There is no basis apparent from the record for any claim of breach of procedural fairness on the part of the Tribunal or failure to comply with the requirements of s 424A.

    Conclusion

18. For these reasons the appeal is dismissed.  The appellant will have to pay the respondent’s costs of the appeal. 

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:

Dated:             6 June 2006

SZDWJ appeared in person.
Counsel for the Respondent:	Ms SA Mason
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	11 May 2006
Date of Judgment:	11 May 2006