SZDYG v Minister for Immigration - [2005] FMCA 424

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDYG v MINISTER FOR IMMIGRATION

[2005] FMCA 424

MIGRATION – RRT decision – Indian soldier claimed persecution as a Sikh by superior officer and Indian authorities – no error found.

Migration Act 1958 (Cth), s.483A, Part 8
Judiciary Act 1903 (Cth), s.39B

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

Applicant:

SZDYG

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 1977 of 2004

Judgment of:

Smith FM

Hearing date:

29 March 2005

Delivered at:

Sydney

Delivered on:

29 March 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondent:

Mr A McInerney

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs in the sum of $5000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1977 of 2004

SZDYG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under s.483A of the Migration Act 1958 (Cth) challenging a decision of the Refugee Review Tribunal dated

25 October 2002 and handed down on 20 November 2002. The Tribunal affirmed a decision of the delegate refusing to grant a protection visa to the applicant.
Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act.” In a matter such as the present the Federal Court's jurisdiction is conferred by s.39B of the Judiciary Act 1903 (Cth), subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, the limitations have the effect that unless I can find a jurisdictional error affecting the Tribunal decision I have no power to set aside the decision and send the matter back for further hearing. It is not the function of the Court itself to decide whether the application is a refugee or should be granted a protection visa.
In the present case the applicant arrived in Australia on a tourist visa in January 2001. On 19 February 2001, assisted by a migrant agent, he applied for a protection visa. In his application he indicated that he was a Sikh from the Punjab. He attached a two page handwritten statement in which he recounted events in the course of a career in the Indian armed forces between 1983 and 2001. He claimed that soon after joining the Indian army he was involved in operations arising out of a Sikh uprising involving the Golden Temple at Amritsar. He claimed that his colonel of his unit made him the target of "false implication and vendetta". He said his colonel was Hindu:
and he was as rigid as stone in matters of castes and religions. His name was XX and he didn’t like me at all. Many a times he would put me to a house arrest and beat me badly. I used to have to have blue spots and wounds on whole of my body. I didn't speak anything, as I was bound by my duty in the defence forces. He used to accuse me of being an anti nationalist which was totally false. He exploited me by forcing me to do household jobs at his residence. Many a times he would threaten me that he would shoot me and claim that I was a militant. I had to pass many months in pain and agony and was subjected to many inhuman positions. I finally deserted the army to save my life from the inhuman treatment being meted out to me.
The applicant claimed that he rejoined the army following an amnesty in 1986 to deserters. He recounted no further events until 1999 when he said that he was posted to a unit at Jammu:
and again the brigadier of our unit happened to be the same XX, now he was a brigadier and on seeing me started meting out the same treatment as before. To escape from the humiliation and elimination threat I again left the army.
He claimed that after he left, "they started searching me everywhere, my wife and young children were taken into custody to ascertain my whereabouts. But I had hid myself at Gunduwanda (Golden Temple Amritsar). They tortured my family members. It is at Amritsar that I came in contact with a person who arranged for a safe passage for me to Australia."
No further details of these events or corroborative documents was forwarded to the delegate. By letter dated 13 July 2001 the delegate invited the applicant to comment on information that might lead the decision-maker to reject his application. The letter referred to the grounds for obtaining a protection visa, and concluded with the propositions:
“Available country information states that “Sikhs do not constitute a persecuted group at the present time, and rank and file members of groups that were at one time targeted by the AISSF, are in general terms now safe.
There is no evidence that the authorities were implicated in the harm you claim to have experienced, nor is there any evidence to indicate you would be denied protection by the authorities from this type of private/sectional harm.”
The applicant's agent filed a commentary on the adverse material which did not provide more detail, but asserted that the applicant suffered "a serious punishment or penalty or significant determent or disadvantage being a traditional and religious Sikh." It repeated the claims that the applicant was mistreated by the armed forces and would not get protection from the Indian Government because of that. It said: "He is wanted by a person who is in the top brass of the Indian Armed Forces."
The delegate refused the application on 11 August 2001. In his statement of reasons, he referred to the absence of evidence to substantiate the claims notwithstanding that over five months had passed since the lodgement of the application. He found that the applicant's claim of persecution not well founded.
The applicant employed the same migrant agent to seek review by the Refugee Review Tribunal. No further material in support was provided with the application, but the claims were repeated that in the army he was:
“subjected to constant torture by my commander who was a Hindu. I deserted the army but again returned when the Indian Government granted all army deserters amnesty. On rejoining the Indian army I was posted to Jammu and the commander was the same Hindu officer. I deserted the army again due to persecution by the said officer. The authorities started searching for me and in doing so arrested my wife and children. Then I decided to leave the country.”
The applicant attended a hearing before the Tribunal, but presented no supporting documents or written submissions. The Tribunal briefly indicated what was said at the hearing and I accept it was an accurate account in the absence of a transcript in evidence.
The Tribunal noted that in his visa application the applicant set out an employment history showing his army career with a rising salary between 1984 to December 2000. The Tribunal said that it put to the applicant that he had not, as he had first claimed, deserted from the army, but had obtained early retirement based on evidence that he had previously given in the course of the hearing. In that evidence he said he had gone to the army pension office in Jammu and:
“told an officer that he wanted to desert and wanted his pension two years earlier than he would have got if he had stayed the normal term in the army. This officer had told the applicant to go home and that within 90 days his early retirement papers and pension would come through - and they had.”
The Tribunal says that the applicant acknowledged "after some hesitation that in fact he had not deserted but had obtained early retirement". The Tribunal says it put to him that this history this did not indicate that the army was malignantly inclined towards him.
The Tribunal also said "independent evidence regarding the situation of Sikhs was discussed with the applicant". I consider that it was probably information of the type that the Tribunal indicates in its reasons:
“Sikhs outside Punjab feel more secure now than at any other time since the 1984 riots. Sikhs do not constitute a persecuted group at the present time, and rank and file members of groups that were at one time targeted are, in general terms, now safe.”
The Tribunal also referred to figures showing that some 4,000,000 Sikhs lived in India outside Punjab, and that Sikh communities were found in most Indian cities and in virtually all States. At the time of the 1981 census some 8 per cent of Delhi's population was Sikh. They are generally urban and prosperous and they control important trades and occupy a prominent position within the central and religious administration.
Under the heading “Finding and Reasons”, the Tribunal said that it had doubted whether the applicant ever deserted from the Indian Army in the early '80s, since his employment record showed no sign of a break. However, it said, "If he did desert then, given his pay record, I consider that he had been treated upon return to the army with generosity and a lack of discrimination or hostility."
On the applicant's own evidence, the Tribunal was not satisfied that the applicant deserted between 1999 and 2000. It concluded:
"Given that I am not satisfied the applicant deserted in 1999-2000 I am not satisfied that his family had been arrested and tortured over the claimed incident or that he faces future harm over it in terms of employment or hostile public opinion in the wider community."
The Tribunal was prepared to accept that the applicant might have been bullied in the army in the early 1980s and that "to some extent this harassment might have resurfaced when the two met up again after a period of years at the applicant's last posting in Jammu in 1999-2000." However, the Tribunal found it implausible that the harassment was as concentrated as the applicant claimed, and said: "Whatever the truth of the matter, I find on the applicant's own evidence that he had during his army career maintained a steady, if unremarkable, climb in salary and that now, having left the army legally with early retirement and being in possession of an army pension, he is now out of reach of the individual officer who had harassed him and would not be subject to further harm from this person."
The Tribunal then addressed the applicant's situation as a Sikh and concluded: "I am not satisfied, on the independent evidence before me, that the applicant faces hardship or discrimination in India over his Sikh ethnicity and religion." The Tribunal was not satisfied the applicant had a well founded fear of persecution in terms of the Convention in India.
I have carefully considered the procedures followed by the Tribunal in arriving at the above conclusions, and its reasoning in reaching them, and am unable to find any jurisdictional error affecting the Tribunal's decision.
The applicant's litigation seeking to challenge the Tribunal's decision has taken a tortuous path. Briefly, it appears that his migrant agent instructed a South Australian solicitor to commence judicial review proceedings, which were commenced in the High Court of Australia on 13 December 2002. They were remitted to the Federal Court in February 2003 and dismissed by Selway J on 22 August 2003, due to non compliance with directions seeking to locate substance in the proceedings.
On evidence that the applicant gave me on the motion brought by the respondent, I accept that he did not receive information of the outcome of the proceedings for some time and then, on the advice of another solicitor, he sought a Ministerial decision under s.417 of the Migration Act. This application was refused in a letter dated 28 May 2004, and the applicant filed his present application on 28 June 2004 without any apparent assistance from a lawyer. However, his application is in a form familiar to the Court, being a list of general heads of review in which I am unable to find any substance, due to the absence of particularity and any apparent relevance to the Tribunal’s decision.
At the first Court date in this Court, the respondent requested a date for a motion for summary dismissal rather than directions to bring the matter to a final hearing. The motion came before me on 8 November 2004. Prior to that date, the applicant filed two documents which are on the Court file, in which a jumble of paragraphs drawn from other documents familiar to the Court is put together as submissions purporting to show grounds of jurisdictional error. It is not necessary for me to analyse these documents, and patently most of their contents has no relevance to the present case or is meaningless.
Within the body of the two documents was an assertion that the Tribunal denied natural justice on grounds "very much similar" with Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 arising from the Tribunal's use of independent country information. I considered that in all the circumstances, the applicant should be given an opportunity to make out such a denial of procedural fairness, and I gave substantive directions to bring the matter back before me for a final hearing which has now occurred today. My directions specifically included requiring the applicant to file an amended application and any evidence that he relied upon including any transcript of the hearing before the Tribunal on affidavit before 20 December 2004.
The applicant on 20 December 2004 filed a document headed “Amended Application”, which states as particulars of grounds of review:
The Tribunal did not properly consider in assessing the chance of my persecution and persecuted on my return to India based on the Sikh ethnicity & religion as of a member of particular social group, Sikh Minority in India. I will be persecute if I return back to India because, I am a Sikh as my religious believe.
The Tribunal was not satisfied that I deserted in 1999-2000 without any query or investigation. I refer tribunal decision page 10 paragraph 3.
In the Tribunal decision FINDINGS AND REASONS comment’s are so contradictory.
The Tribunal’s satisfaction that I am not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief.
The Tribunal did not observe Migration Act 1958 properly to making the outline of submission.
These grounds do not identify a breach of procedural fairness, and certainly do not lend any support that there is a Muin ground available in the present case. In any event on the material before me, I cannot be satisfied that the applicant was not given every opportunity to answer the opinions of the Tribunal concerning the position of Sikhs in India. In this respect, I note that general opinions on this, which are adverse to the applicant’s claims, were put to him in the delegate’s request for comments and again by the Tribunal in the course of the hearing. The applicant has presented no evidence to substantiate any particular claim of denial of procedural fairness.
The points which are made in the amended application do not, in my view, raise any ground for jurisdictional error but amount to no more than challenges to the factual assessments of the Tribunal. I reject the assertion that the Tribunal did not provide reasoning showing "a rational or logical foundation".
The applicant, also on 20 December 2004, filed a document headed “Affidavit” which has eight handwritten paragraphs. In my view they do not advance his case, since they make propositions which are either irrelevant or argumentative only.
The applicant did not file a written submission as directed, but has attended the hearing today. He frankly said that since he is not a lawyer he is not able to make submissions showing jurisdictional error by the Tribunal.
As I have explained to him I have not been able to find any such arguments which could be put forward by him, and for the above reasons I must dismiss the application.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 8 April 2005