SZERG v Minister for Immigration

[2005] FMCA 1682

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZERG v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1682

MIGRATION – RRT decision – Sikh claiming political persecution in India – disbelieved by Tribunal – no error found.

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), ss.424A, 424A(3)(a), 430, 430(1)(c), 430(1)(d), 474, 483A, Pt.8

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572

Applicant: SZERG

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG3295 of 2004

Judgment of: Smith FM

Hearing date: 3 November 2005

Delivered at: Sydney

Delivered on: 3 November 2005

REPRESENTATION

Counsel for the Applicant: Mr A Kumar

Solicitors for the Applicant: Chandra Jayawardena Solicitor

Counsel for the First Respondent: Ms T Quinn

Solicitors for the Respondents: Phillips Fox

ORDERS

1. The Tribunal be included as second respondent. 

2. The application is dismissed. 

3. The applicant must pay the first respondent’s costs in the sum of $3,300. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3295 of 2004

SZERG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 14 October 2004 and handed down on 4 November 2004.  The Tribunal affirmed the decision of a delegate who refused to grant a protection visa to the applicant. 

2. The Court’s jurisdiction under s.483A is the same as the Federal Court’s under s.39B of the Judiciary Act 1903 (Cth), but subject to limitations under Part 8 of the Migration Act. The limitations 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 claims should be believed, nor whether he qualifies for a refugee visa.

3. The applicant arrived in Australia in May 2004 on a temporary business visa.  On 2 June 2004 he applied for a protection visa.  His claims for protection were contained in a short statutory declaration sworn before a justice of the peace.  In it he claimed that he was an Indian national, born in 1971, from a town in the Punjab.  He claimed to have belonged to a family that had actively participated in a political party supporting Sikh efforts to obtain a separate state.  He claimed to have become an active worker after the storming of the Golden Temple at Amritsar in 1984, but: 

   I remained a low profile worker as I was barely in early twenties.  … 

   In February 1990 I was picked by police on tips from intelligence authorities from my home in Amritsar and kept in torture cells for one week.  When police could not gather evidence to charge me they released me after 2 months on court order.  … 

   Due to mass killing of our cadre, we decided to keep a very low profile, wait for the appropriate moment, reorganise ourselves and then come up at an appropriate time.  In the past five years some of our active members gave up the hard line attitude and took the normal way of life.  But I could not.  In April this year Mr B, a leader of all India Sikh Students Federation who is now in [Jail], declared formation of a new political party aimed at a separate Sikh state.  I actively campaigned for the emergence of this party.  … 

   Immediately the central and state intelligence and police forces got in action and started arresting the activist.  Till the two week before my departure from India, 270 workers were arrested.  Fearing that all of them may meet the fate our 3000 colleagues met in 1990, I immediately applied for visa for Australia and came here on 4 May 2004. 

4. The applicant claimed to fear that if he went back he would be killed by the intelligence or police authorities.  No supporting evidence was provided by the applicant to the delegate, nor subsequently to the Tribunal. 

5. A delegate refused the application on 9 June 2004, and the applicant appealed to the Tribunal on 13 July 2004.  He attended a hearing on 14 October 2004.  A transcript of the hearing is not in evidence before me, but the Tribunal gives a summary of what happened and I have no reason to disbelieve it.  The Tribunal noted that during the hearing “he resiled from some of the claims made in writing, saying they were errors made by the person who had filled in the forms”. 

6. The applicant gave the Tribunal an account of moving around in the last five to ten years before coming to Australia.  The Tribunal said: 

   I asked him if he had had any personal problems with the security forces at any time.  He responded that he was arrested in 1990, held for two months, tortured, and then released because people from his home organised it.  He did not know how they had done this, but it was done through a court.  He had not been detained by the authorities at any time after that.  

   I asked him to tell me about his political activities from, say, 1995 on.  He responded that it was hard to participate in political activities after that, as he was in hiding.  He had just attended about two meetings per year, most recently in April 2004, when Mr B made his announcement from jail.  That meeting was in Amritsar, at the temple, and about ten people were present. Apart from these meetings, he had done nothing else of a political nature during the past nine years, and no action of any sort had been taken on the basis of the discussions held at those meetings.  

7. The Tribunal said that it put to the applicant its concerns about his account.  In particular, it was unable to locate evidence from any human rights monitoring group in Punjab or elsewhere that a wave of arrests of Sikhs occurred during 2004.  The Tribunal also put to him that his movements shown in the passport which he brought to the hearing indicated that the authorities in India had no interest in him.  His passport showed him visiting Thailand and Cambodia in late 2003, as well as leaving India at a major international airport using his own name. 

8. The Tribunal referred to sources of information concerning the situation of Sikhs in the Punjab over several years, including a report from 1997 prepared by the Immigration and Refugee Board of Canada which said: 

   In 1997 the Immigration and Refugee Board of Canada interviewed a panel of four experts on the situation in Punjab.  On groups at risk one, Bob Brack, said that people who were not high profile militant suspects were not at risk in the Punjab by then.  The high‑profile suspects might include a perceived leader of a militant organization, or someone suspected of a terrorist attack.  Laurence Brooks indicated that there were only a few high profile militant suspects left, with virtually none remaining in Punjab or India itself.  Ravi Nair defined a high profile individual as someone suspected of anti‑state activities by the Indian authorities.  According to Nair, those without a high profile had much less to fear from the Punjab police, and now had much better access to judicial recourse if they were treated improperly.  He stated that simply holding a pro‑Khalistani opinion, for example, would not make an individual a high profile suspect; one would have to engage in violent anti‑state acts.  According to Brack, many of the high profile suspects wanted by the Punjab police would actually be excluded from claiming refugee status in Canada because of their past actions (Immigration and Refugee Board of Canada 1997, IND26376.EX India: Information from four specialists on the Punjab, 17 February). 

9. Under the heading “Findings and Reasons”, the Tribunal indicated that it accepted that the applicant was a national of India and a Sikh.  It said:

   He does not claim, and there is nothing in the independent evidence set out above from which I might infer, that Sikhs are subject to persecution in India merely because they are Sikhs.  I am satisfied that they are not. 

10. The Tribunal referred to the applicant’s claim that he had been detained and ill‑treated in 1990 when he was aged 19, and said: 

    I am prepared to give him the benefit of the doubt, and accept that he may have been briefly detained and ill‑treated in 1990, when he was aged nineteen, because of such a perception of him. 

    However, according to his own evidence his political activities were confined to attending a meeting twice each year during the past nine years, and none of these meetings gave rise to any action on the part of those present.  [The applicant’s] evidence was generally very vague, and I strongly doubt that he attended any such meetings.  However, even if he did, there is no evidence at all that the authorities knew that he was present. 

    As to his wanting [a] separate state for Sikhs (traditionally known as Khalistan) I accept the evidence from Ravi Nair (IRBC 1997) that those without a high profile had much less to fear from the Punjab police as long ago as 1997, and by then had much better access to judicial recourse if they were treated improperly.  Simply holding a pro‑Khalistani opinion would not make an individual a high profile suspect; one would have to engage in violent anti‑state acts to fall into this category.  I am therefore satisfied that [the applicant] could hold a “pro‑Khalistani” opinion, and that doing so would not give rise to a well‑founded fear of being persecuted. 

    [The applicant] claims to have left India for Australia because he feared being arrested earlier in 2004 as a result of the arrests of pro‑Khalistan activists and his link with them.  I am unable to accept that this claim is true for the following reasons. 

11. The Tribunal then set out in five paragraphs reasons, which in my opinion were rational and well open to it on the evidence, for disbelieving the applicant’s claims in relation to recent political activities.  It concluded: 

    I do not consider truthful, and do not accept, that [the applicant] left India for Australia because he believed he was being sought by police for the reason of his political opinion, nor do I accept that in fact he was of any adverse interest to the Indian authorities because of his political opinions.  In the absence of any other claim by him, it follows that the chance is remote that he will be killed (as he has claimed), arrested or seriously harmed on return to India for the Convention reason of his political opinion. 

    In the absence of any other claims from him, I find that his fear of Convention‑related persecution in India is not well‑founded. 

12. The applicant filed an application for review in this Court on 9 November 2004.  It has as its grounds: 

    1.The decision made by RRT is incorrect and liable to set aside. 

    2.All the facts on the file have not been considered. 

13. No particulars were provided to give any substance to these contentions, and I can find none insofar as the legal correctness of the Tribunal’s proceedings is concerned. 

14. The applicant engaged a solicitor, Mr Jayawardena, who remains the solicitor on the record.  He filed an amended application on 29 March 2005.  Counsel for the applicant who appeared today on his instructions said that he relied on the four grounds which appear in this application.  No application was made to amend, so as to add additional grounds, and I do not understand any other ground to have been pressed in oral submissions. 

15. The first ground, including comments contained in the amended application, is: 

    (1)The Tribunal made a serious Jurisdictional Error by making the following conclusion contrary to facts and all the information constructively available on file thus refuting the credibility of the applicant openly:- 

    Particulars – Greenbook 

    Page 82 – Para 05 

    “I do not consider truthful, and do not accept, that [the applicant] left India for Australia because he believed he was being sought by the Police for the reason of his political opinion, nor do I accept that in fact he was of any adverse interest to the Indian authorities because of his political opinions”.  

    Applicant’s Comments: 

    The Tribunal has made a grave error and misconception about the reasons adduced by the applicant in his original Statutory Declaration and factually enlarged by him in his oral evidence given before the Tribunal.  He clearly stated in his evidence that he left India in 2004 when the Police started arresting Pro‑Khalistan supporters which statements were refuted by the Tribunal point‑blankly as unreliable.  This is clearly a serious credibility doubt formed by the Tribunal against the Applicant despite both written and oral evidence given by the Applicant and therefore amounts to a jurisdictional error committed by the Tribunal. 

16. In effect, the contention is that the Tribunal “made a serious Jurisdictional Error” by disbelieving the applicant in relation to his recent activities.  There is no substance to that contention and counsel for the applicant today was not able to give it any substance.  His only contention was that the Tribunal did not consider relevant material which would have supported the applicant’s claim.  However, when asked he could not take me to any such information in the material before me. 

17. Ground 2 was: 

    (2)The Tribunal was Wednesbury Unreasonable in holding that the applicant was not able to provide certain information, thus holding against him:- 

    Particulars – Greenbook 

    Page 81 – Para 07 

    “Firstly, apart from [the applicant’s] own assertion there is no evidence before the Tribunal that jailed Mr B’s call for the formation of such a group was Revealed in the media in India this year, and it is very difficult to believe that the Indian authorities would give the media access to Mr B’s prison”. 

    Applicant’s Comments: 

    The Tribunal was highly unreasonable to put the onus on the Applicant to produce Evidence when the Applicant clearly said that he read in the Punjabi Newspaper AJIT that Mr B had formed a political party.  It was left to the Tribunal to have followed up whether that paper published an article to that effect rather than abruptly disbelieve the Applicant’s evidence and shutting out the importance of the information provided by the Applicant.  The Tribunal’s speculation what the Indian authorities may allow or may not, is a mere conjecture by the Tribunal and not based on any material facts or evidence before the Tribunal.  Hence this is a jurisdictional error made by the Tribunal. 

18. As I understood the submissions of the applicant’s counsel, the unreasonableness of the Tribunal’s finding about the applicant’s 2004 activities was that it was unreasonable for the Tribunal to have rejected the claim by reference to the 1997 Canadian country information which it cited.  However, the point made by the Tribunal was that the country information showed that “as long ago as 1997” the situation of Sikhs had improved from the situation in the early 90s.  It then made the point that it could find no sources showing a recent regression in their situation.  This point was, in my opinion, made very reasonably and there was nothing irrational about the Tribunal’s reasoning.  In my opinion, the Tribunal did not fail properly to weigh up the applicant’s claims. 

19. Ground 3 was: 

    (3)The Tribunal was ‘procedurally unfair’ and failed to comply with sec. 424A of the Migration Act, making a serious jurisdictional error by concluding:-

    Particulars – Greenbook 

    Page 81 – Para 05 

    “As to his wanting to separate a State for Sikhs (traditionally known as ‘Khalistan’) I accept the evidence from Ravi Nair (IRBC 1997) that those without a high profile had much less to fear from the Punjab police long as ago in 1997, and then had much better access to judicial recourse if they were treated improperly”.  

    Applicant’s Comments: 

    The Applicant submits that it was contrary to the law that the Tribunal used independent source of evidence (IRBC 1997) to support its finding without providing to the Applicant in advance the opportunity to either rebut or to make his counter arguments against such information, before the Tribunal handed down its decision to refuse the Applicant’s claims.  This is a serious jurisdictional error committed by the Tribunal against the natural course of justice required to be given to the Applicant. 

20. Counsel for the applicant identified as the information which should have been put to the applicant by way of a written invitation under s.424A the Canadian information which I have extracted above. However, he could not identify in it any information specifically about the applicant, and did not seek to persuade me that I should not follow Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572 as to the effect of s.424A(3)(a). On this authority, the section had no operation in relation to this information.

21. Ground 4 stated: 

    (4)The Tribunal made further Jurisdictional Error by breaching s.430(1)(c) & s.430(1)(d) of the Migration Act 1958 in relation to its conclusions:-

    Particulars – Greenbook 

    Page 81 – Para 02 

    “He does not claim, and there is nothing in the Independent evidence set out above that Sikhs are subjected to persecution in India merely because they are Sikhs.  I am satisfied they are not”. 

    Applicant’s Comments: 

    This is a serious jurisdictional error committed by the Tribunal because the very independent evidence sighted by the Tribunal in its decision indicates otherwise. 

    According to Amnesty International 2003 – Break the cycle of impunity and torture in Punjab, January, ASA 20.002.003, it observed “The target of torture had also changed since the period of militancy.  Now the majority of victims were detainees held in connection with criminal investigations, and included members of all religious communities and social groups”. 

    The above quotation amply demonstrates that still the Sikhs are being persecuted and therefore the Tribunal finding has been proved wrong.  It is clearly evident that even in 2003 those Sikhs who were in custody were victims of persecution and torture.  Hence the Tribunal’s decision was completely wrong and this is clear legal error committed by the Tribunal. 

22. Section 430(1)(c) and (d) require the Tribunal, when it makes its decision on a review, to prepare and publish a written statement that sets out its reasons and also:

    (c)sets out the findings on any material questions of fact; and

    (d)refers to the evidence or any other material on which the findings of fact were based. 

23. It was held in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 (“Yusuf”) that this obligation should be viewed subjectively, not objectively, so that the duty under that section cannot be found to have not been complied with by reason of the Court’s opinion on what were material questions of fact.  Yusuf also, in my opinion, provides clear authority suggesting that any failure of compliance with s.430 would not give rise to the invalidity of a decision of the Tribunal.

24. Counsel for the applicant did not seek to dispute these effects of Yusuf’s case.  He did not attempt to maintain the argument sketched in the amended application.  I do, however, note that it is patently illogical to argue that the fact that some Sikhs are being persecuted shows “a serious jurisdictional error” by the Tribunal, when it found that people are not being persecuted “merely because they are Sikhs”.  In my opinion, there was no substance to this ground either in law or on a reading of the Tribunal’s reasons. 

25. For the above reasons I do not find any of the grounds raised by the amended application to have been made out. I consider that the Tribunal decision is not affected by jurisdictional error. It is therefore a privative clause decision for which relief is barred under s.474, and I dismiss the application.

    RECORDED  :  NOT TRANSCRIBED

I certify that the preceding twenty‑five (25) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  18 November 2005