SZEOG v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 1789

FEDERAL COURT OF AUSTRALIA

SZEOG v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 1789

SZEOG v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 1687 of 2005

BRANSON J
24 NOVEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1687 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZEOG
APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

BRANSON J

DATE OF ORDER:

24 NOVEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondents’ costs fixed in the amount of $3800.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1687 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZEOG
APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	BRANSON J
DATE:	24 NOVEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. The appellant appeals to this Court from a judgment of the Federal Magistrates Court delivered on 1 September 2005.  By that judgment the Federal Magistrate dismissed the appellant’s application for judicial review of a decision of the second respondent (‘the Tribunal’) affirming the decision of a delegate of the first respondent (‘the Minister’) to refuse the appellant a protection visa. 

2. The appellant has not attended Court today.  Counsel for the Minister invited me to proceed under O 52 r 38A to hear this matter in the absence of the appellant.  I consider it appropriate to do so. 

   BACKGROUND

3. The appellant is a national of India who arrived in Australia on 10 September 2003 and applied for a protection visa under the Migration Act 1958 (Cth) on 8 October 2003. His application was rejected by a delegate of the Minister on 29 October 2003.

4. On 24 November 2003 the appellant applied for review of that decision by the Tribunal.  On 17 July 2004 the Tribunal affirmed the decision of the delegate not to grant the appellant a protection visa.  The decision of the Tribunal was based on the Tribunal’s finding that the appellant was not a credible witness.

5. The appellant claimed that he had been harassed and threatened by the Punjabi authorities as a result of his membership of the political party Shiromani Akali Dal (Badal Group) (‘Akali Dal’) in which he had been general secretary of his local organisation.  He claimed that he had been forced to relinquish his business and that he feared being harmed by the police at the instigation of the Chief Minister.

6. The Tribunal accepted that the applicant had been a member of Akali Dal but otherwise did not accept his claims.  It did not accept that he had been general secretary of his local branch or that he had undertaken political activities in support of Akali Dal.  It found that he did not have any association with the leader Tota Singh that would place him at risk.  It did not accept that he had been politically active beyond being a member of the party or that he had been persecuted because of his political activities.  Nor was the Tribunal able to find any evidence that Akali Dal members had been persecuted by the current government of the Punjab.

7. The Tribunal concluded that the appellant had not been persecuted in the past.  It found that:

   ‘…there is not a real chance that if the applicant were to return to India now or in the reasonably foreseeable future … he would be persecuted for reason of his political opinion or for any other Convention reasons.’

8. Before the Federal Magistrate the appellant was represented by counsel who advanced the following four contentions:

   (1)the Tribunal misunderstood the basis of the appellant’s claim;

   (2)the Tribunal did not take into account a relevant consideration and took into account an irrelevant consideration;

   (3)the Tribunal erred in interpreting the term ‘persecution’; and

   (4)the Tribunal made errors in its findings about the appellant’s ability to relocate within India.

   In a careful judgment the Federal Magistrate rejected each of the four contentions advanced before him.

9. In relation to the first contention, it was argued that the Tribunal had understood the appellant as claiming that he was a ‘wanted person’ in India, when in fact his claims were more general.  The Federal Magistrate examined the documentary material and concluded that this claim was not made out on the facts. 

10. It was also argued that the Tribunal had failed to consider whether the appellant’s claims had substance on the basis of its acceptance that he was an ordinary member of the Akali Dal.  The Federal Magistrate held that the Tribunal had considered that issue.

11. The second contention appears to have amounted to a series of criticisms of the Tribunal’s factual conclusions from the evidence before it, rather than a failure to have regard to the right ‘considerations’.  The Federal Magistrate considered each of these criticisms and rejected them.

12. The third contention amounted to an argument that the Tribunal had made findings about what occurred in the past but not (as it needed to) what was likely to occur in the future.  The Federal Magistrate held that the Tribunal had properly applied its conclusions about past events to the task of determining whether there was a ‘real chance’ of the appellant suffering persecution in the reasonably foreseeable future.

13. As to the fourth contention, the Federal Magistrate accepted the Minister’s submission that the Tribunal’s findings on relocation were not necessary to its decision.

    THE APPEAL

14. The notice of appeal to this Court asserts that the Federal Magistrate ‘failed to identify issues’ in three aspects, namely:

    ‘1.The Appellant contends that [the Federal Magistrate] failed to identify issues related to the appellant’s membership of the Akali Dal Political Party, relationship with Tota Singh and Chief Minister Amrinder Singh’s retribution against the leadership of Akali Dal and Tota Singh’s supporters.

    2.The Appellant contends that [the Federal Magistrate] failed to identify the issues related to the Police harassment particularly in respect of the evidence that the appellant was hiding in his in‑laws house to avoid police harassments and few of his colleagues suffered police harassment.

    3.The Appellant contends that [the Federal Magistrate] failed to identify issues in respect of the Tribunal’s rebutting evidence of the appellant without investigating the facts properly.’

    The above assertions do not point to any error by his Honour.

15. As the Minister’s written submissions observe, it was not the task of the Federal Magistrate to ‘identify issues’.  Both parties were represented and his Honour dealt with each of the bases upon which the Tribunal’s decision was said, by counsel for the appellant, to be legally flawed.

16. Each of the topics concerning which the notice of appeal asserts that the Federal Magistrate failed to identify issues was a matter for consideration by the Tribunal.  They were not matters upon which it was necessary, or proper, for the Federal Magistrates Court to make any findings of its own, except to the extent that they cover the same ground as the contentions advanced before it.

17. No error has been asserted in the way the Federal Magistrate dealt with the grounds of review advanced before him.  It is apparent on a reading of his Honour’s reasons for judgment that his Honour’s rejection of those grounds was clearly correct.  Further, no error of jurisdiction appears to affect the validity of the decision of the Tribunal.

    CONCLUSION

18. The appeal will be dismissed with costs.

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

Associate:

Dated:            8 December 2005

There was no appearance by the appellant.
Counsel for the First Respondent:	G Kennett
Solicitor for the Respondent:	Phillips Fox
Date of Hearing:	24 November 2005
Date of Judgment:	24 November 2005