SZERH v Minister for Immigration - [2006] FMCA 1023

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZERH v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1023

MIGRATION – Refugee – impermissible merits review – application dismissed.

Migration Act 1958, s.427(1)(d)

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Director of Animal and Plant Quarantine v Australian Pork Ltd (2005) 146 FCR 368

Applicant:

SZERH

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3296 of 2004

Judgment of:

Nicholls FM

Hearing date:

13 July 2006

Date of Last Submission:

05 July 2006

Delivered at:

Sydney

Delivered on:

21 July 2006

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitor for the Applicant:

Mr. C. Jayawardena

Counsel for the Respondents:

Mr. T. Reilly

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3296 of 2004

SZERH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application filed in this Court on 9 November 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 12 October 2004 and handed down on 2 November 2004 to affirm the decision of the respondent Minister made on 10 June 2004 to refuse a protection visa to the applicant. It is appropriate to make an order joining the Tribunal as the second respondent in these proceedings.
The applicant is a citizen of India, of Sikh background, who came to Australia on 4 May 2004. The applicant’s claims are set out in his application for a protection visa which was lodged with the assistance of a migration agent on 3 June 2004 (Court Book (“CB”) 1 to CB 28, and in a statutory declaration reproduced at CB 27 to CB 28), and in his application for review (CB 40 to CB 48). The applicant gave evidence before the Tribunal and the Tribunal's account of what occurred at the hearing is in its decision record reproduced at CB 63.7 to CB 66.8.
The applicant’s claims, as they were put before the Tribunal, were essentially that his family had been supporters of the Akali Dal Party, a traditional Sikh party engaged in the support of the rights of Sikhs in India. He claimed that he had rejected the move away from “the hardline attitude” that had previously characterised the work of the Akali Dal, and (at least) in April 2004 he became a follower of Mr. Daljit Singh Bhittu who had declared a new political party. The applicant claimed to have actively campaigned for the emergence of this party and that this had led to conflict with the Akali Dal, and with other major political parties traditionally opposed to the Sikhs. He claimed that security forces began arresting activists (sometime in 2004) and following the arrest of 270 workers he left India as he also feared being arrested. He feared being killed by the authorities if he were to return to India.
The Tribunal's “Findings and Reasons” for its decision are set out at CB 73.4 to CB 75.3. The Tribunal found:
1)That the applicant did not claim, and that there was no independent evidence to support any proposition, that Sikhs are subjected to persecution in India based merely on the fact that they are Sikhs (CB 73.4).
2)It accepted that between 1984 and 1990 many Sikhs in Punjab were involved in activities in support of a separate state for Sikhs and did not consider it implausible that the applicant was briefly detained and ill-treated in 1990 because of a perception that he was involved (CB 73.6).
3)It accepted the applicant's own evidence that his political activities subsided considerably for some years after 1990 (CB 73.7).
4)That the applicant was a longstanding member of the All India Sikh Students Federation, but found that merely being a member was not sufficient to give rise to a well founded fear of persecution (CB 73.8).
5)It accepted independent evidence available to it (Ravi Nair (IRBC 1997)) that in relation to the applicant's desire for a separate Sikh state, those without a high profile had much less to fear from the authorities and that holding a pro-separatist opinion would not make the applicant a high profile suspect. The Tribunal therefore could not be satisfied that merely holding the opinion would give rise to well founded fear on the part of the applicant (CB 74.1).
6)That while it had some doubts as to the applicant's claims that he had been the subject of extortion from a corrupt police officer, it found that even if he was the target of extortion, that on the evidence provided by the applicant, it was not satisfied that the reason for these demands was for any Convention related reason. In any event, it found that had the applicant reported these demands there would not have been a real chance that he would have been denied protection for any Convention reason (CB 74.4).
7)That the applicant's evidence relating to his claims to have been involved in “recent years” in “doorknocking activities” (on behalf of his political affiliations) were so vague that the Tribunal did not accept that that had occurred (CB 74.5).
8)It was unable to accept that the applicant left India because he feared being arrested in 2004 as a result of his role in the planned establishment of the new political group (“Khalistan”) (CB 74.6). The Tribunal gave reasons for this, which are set out at CB 74.7 to CB 75.2.
9)That, in all, it did not accept as truthful the applicant’s claims that he left India because he was subjected to any serious harm or feared arrest as a result of his political activities. In the absence of any other claim by the applicant, the Tribunal found that the chance was remote that the applicant would be arrested or seriously harmed on return to India for a Convention reason based on his political opinion. The Tribunal therefore affirmed the decision under review (CB 75.4).
The applicant, with the assistance of solicitors, filed an amended application on 29 March 2005 which set out four grounds of review. At the hearing before me the applicant was represented by Mr. C. Jayawardena and the respondent by Mr T. Reilly. I also had before me written submissions for the applicant filed on 3 July 2006 with annexures, and the respondent’s written submissions filed on 5 July 2006.
At the hearing before me Mr. Jayawardena submitted that he would not be pressing grounds three and four in the amended application and would press grounds one and two.
Ground 1 is:
“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 - Green Book
Page 75 - Para 02
“I do not consider truthful, and do not accept that Mr. Singh left India for because he was being subjected to any serious harm or feared arrest as a result of his political activities and in the absence of any other claim by him, that the chance is remote that he will be arrested or seriously harmed on return to India for the Convention reason of his political opinion.”
Applicant's Comments:
The Tribunal has made a grave error and misconception about the reason 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.”
The reference to the Tribunal's decision record is at CB 75.2 and in full reads:
“For these reasons I do not consider truthful, and do not accept, that [the applicant] left India because he was being subjected to any serious harm or feared arrest as a result of his political activities. It follows, in the absence of any other claim by him, that the chance is remote that he will be arrested or seriously harmed on return to India for the Convention reason of his political opinion.”
Clearly this conclusion reached by the Tribunal relates to what precedes it (“for these reasons”). In particular it relates to the applicant’s specific claim as articulated by the Tribunal at CB 74.6:
“[The applicant] claims to have left India because he feared being arrested earlier in 2004 as a result of his role in the planned establishment of a political group “Khalistan”.”
The Tribunal then states:
“I am unable to accept that this claim is true for the following reasons.”
The Tribunal then provides five reasons that relate to its concluding finding at CB 75.2 (the extract complained of by the applicant). The Tribunal's reasons were:
1)That apart from the applicant's assertions, there was no evidence before it that any call was made for the formation of a new group.
2)It found it difficult to believe that the Indian authorities would give media access to Mr. Bhittu (the claimed founder of this new group) while he was in prison to make such a “call”.
3)That it was unable to locate any independent report that over two hundred Sikhs were arrested in Punjab because of the plans to establish such a group.
4)The applicant’s own “oral” account of his role in setting up the “Khalistan” group was vague, and that this was inconsistent with his claim to have played an “organising role”.
5)The applicant was unable to explain the grounds that led him to believe that “the police knew about his activities at all”.
6)In light of all of this, it found that the applicant’s account of events leading to his decision to leave India “lacked cogency”.
There appears to be a number of different aspects to Mr. Jayawardena’s submissions in relation to this complaint:
1)The complaint as stated in the amended application is that the Tribunal misunderstood the applicant’s claim. The submission was that the applicant clearly stated that he left India in 2004 when the police started arresting pro-Khalistan supporters, and that the Tribunal “refuted this”, and formed a serious “credibility doubt” about the applicant even in light of the applicant's written and oral evidence.
Any plain reading of the Tribunal's decision record, and in particular the Tribunal's account of what was discussed with the applicant at the hearing, shows that the Tribunal understood the applicant’s claim that the specific motivation for his leaving India was that when the authorities started arresting pro-Khalistan supporters he also feared being arrested. But clearly, on what was before it, this claim was presented to the Tribunal as a part of the claim that the applicant was involved in the setting up, in 2004, of this “harder line” political group, and that as someone who had been highly involved with the formation of this new group he felt compelled to leave India when the authorities started arresting people who were connected with the new group. Any plain reading of the Tribunal's decision record, and an examination of the applicant’s claims as set out and as put before the Tribunal, reveal that the Tribunal understood what the applicant was saying as to the motivation to leave India, and the context which gave rise to this motivation. The Tribunal's reference at CB 74, in my view clearly, encapsulates the applicant's claim. I cannot see that the complaint now that the Tribunal “misunderstood” the applicant's claim in this regard can be made out.
2)Mr. Jayawardena also appeared to take issue with the Tribunal’s finding as to the credibility of the applicant's claims.
I could not discern from the submissions that this complaint rose above a claim that the Tribunal was not entitled to disbelieve the applicant, given (merely) that the applicant had made the claim. To this extent the complaint does not rise above a request for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).
3)I should note that before me Mr. Jayawardena asserted that the Tribunal had found that the applicant was a “liar”, and that there was no basis for this finding.
In this regard I note clearly that what the Tribunal found, with reasons given, was that what it did not consider as being “truthful” was the applicant's account of the reason, and the events leading up to this reason, for leaving India. In my view the Tribunal’s decision record reveals that it was properly focussed on assessing the veracity of the applicant’s specific claim. Mr. Jayawardena’s submission overstates what the Tribunal focussed on, and found. But, in any event, findings of fact, including findings on credibility, are a matter for the Tribunal, and as McHugh J. set out in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1, this is the function of the Tribunal as decision maker “par excellance”. Mr. Jayawardena’s submission was that the Tribunal was in error in making this finding (in regards to what the Tribunal actually found, as opposed to what Mr. Jayawardena appeared to assert that it found). In my view, the Tribunal was entitled, and it was open to it, to make the finding that it did, given what was before the Tribunal. The fact that the Tribunal found against the applicant does not of itself reveal jurisdictional error on its part, despite what Mr. Jayawardena now seeks to assert.
4)As part of his submissions, Mr. Jayawardena sought to rely on the annexures to his written submissions. The six annexures are all, according to Mr. Jayawardena’s submissions and as is evident, “downloaded” by him from the “Internet”. They all appear to be various media reports:
i)Annexure “A”: extract from the Sikh Times dated 7 October 2005.
ii)
Annexure “B”: from website “DiscoverSikhi.Com” dated

8 June 2005, 23 June 2005, 24 June 2005, 25 June 2005,

27 June 2005 and 28 June 2005.
iii)
Annexure “C”: extract from the “The Sikh Times” dated

6 October 2004.
iv)Annexure “D”: downloaded extract from “Shiromani Khalsa Dal – Official Website” various references, but which all appear to refer to events in 2006.
v)Annexure “E”: extract from “The Discussion Forum SikhNet” dated 6 November 2006.
vi)Annexure “F”: extract from “The Voice of Sikh Youth” dated 5 March 2006.
5)Mr. Jayawardena submitted that the Tribunal was in error when it found that the political group “Khalistan” was not established in 2004, and that it based this on its finding that there was no evidence before it that such a group had been formed. He claimed that there was a duty on the Tribunal to make a proper and further inquiry, and had it done so, it would have found, as he had found when he searched through the “Internet”, that the group was formed in 2004.
6)Apart from the obvious evidentiary issues, Mr. Jayawardena was unable to explain how documents created after the Tribunal handed down its decision (with one exception, which I will deal with below) were able to show jurisdictional error in the Tribunal's decision. While the documents may refer to events predating the making of the Tribunal's decision, the Tribunal can hardly be expected to have searched, made inquiries, and found documents that were not in existence at the time of making of its decision.
In relation to this first ground of complaint, Mr. Reilly submitted that if this ground is seen as “a failure to inquire” then there is no duty on the Tribunal to inquire pursuant to s.427(1)(d) of the Act. In the circumstances of this case as put before the Court, I agree. Further he, in my view correctly, submitted that in any event the documents annexed to the applicant’s submissions do not establish a basis to suggest that inquiry by the Tribunal would have revealed anything, because the documents referred to were not in existence until a year after its decision. Mr. Reilly also submitted that the only document that may have existed at the time of the Tribunal's decision, the letter to the Prime Minister (Annexure “C” to the applicant’s submissions), does not say anything about the formation of a new political party. He submitted that, in any event, the absence of any such material confirms what the Tribunal itself said that it was not able to find any media reports about the formation of the new “Khalistan” political party at the time of its decision. Even further, he suggested, that whether there was, or was not, the formation of such a new party is, of course, not an issue that would give rise to jurisdictional error in this Court. Finally, in this regard, the respondent argued that Mr. Jayawardena has misread the Tribunal's decision, which does not deny that such a political party was formed, but denies the existence of any media reports on it.
On the applicant’s behalf, Mr. Jayawardena seems to have focused, and pressed, that the Tribunal found that the new political group had not been established, and provided this documentation (as annexed to his written submissions) to show that the group had in fact been established, and that the Tribunal was factually incorrect in the finding that it had made. Mr. Jayawardena’s submission in this regard clearly misrepresents what the Tribunal has done. The Tribunal identified the applicant's claims to have left India because he feared being arrested as a result of his role in the planned establishment of a political group. The Tribunal found it was unable to accept this claim as being true. Critically, the Tribunal did not reject the fact that the group had been formed. What the Tribunal properly focused on was the applicant's claim as to his own role in the creation of this group, and the applicant's claims of the attendant publicity in relation to its formation. The Tribunal clearly stated that the evidence that was not before it, related to the “call” by the group's founder, while in jail for the formation of the group. The Tribunal’s focus was that there was no evidence that any such “call” was made while the founder was in jail. Also the Tribunal found it difficult to believe that the Indian authorities would give the media access to the group's founder while he was in prison. Further, that it had been unable to locate any report from independent sources that over 200 Sikhs at the relevant time had been arrested in Punjab because of the plans to establish such a group.
The remainder of the Tribunal's reasons for rejecting the truthfulness of the applicant's claim (as to the reason for his leaving India) is that his own account of his role in setting up the group was vague, and that he was unable to explain the grounds for his belief that the police knew of his activities. Nothing that Mr. Jayawardena now puts forward by way of the attachments to his written submissions reveal any error in the what the Tribunal has actually said, as opposed to what Mr. Jayawardena seeks to ascribe to it. The one document which appears to have been created prior to the making of the Tribunal's decision, (the Tribunal's decision was made on 12 October 2004 and the document at annexure “C” appears to have been created on 6 October 2004) provides nothing to show that the Tribunal was in error relating to the call from jail for the formation of the group and the subsequent claimed arrest of over 200 Sikhs in Punjab in 2004. I cannot see that this complaint reveals any jurisdictional error on the part of the Tribunal.

The applicant's second ground of complaint is:
“The Tribunal was Wednesbury Unreasonable in holding that the applicant was not able to provide certain information, thus holding against him:
Particulars – Greenbook
Page 74 - Para 05
“Firstly, apart from Mr. Singh's own assertion there is no evidence before the Tribunal that jailed Mr. Bhittu’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. Bhittu’s prison.”
Applicant's Comments
The Tribunal was highly unreasonable to put the onus on the Applicant produced Evidence when the Applicant clearly said that he read in the Punjabi Newspaper AJIT that Diljit Singh Bhittu had formed a political party. It was left to the Tribunal to have follow up whether the paper published an article to that effect rather than 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.”
The Tribunal's account of what occurred at the hearing with the applicant in relation to the issue of the call for the formation of the new party is set out at CB 65.5. The reasons subsequently given by the Tribunal in its “Findings and Reasons” (from CB 74.7 to CB 75.1) mirror the matters that the Tribunal reported that it discussed with the applicant from CB 65.7 to CB 66.7. The Tribunal’s account of what occurred at the hearing reveals that the Tribunal clearly put its doubts to the applicant about what he was saying. The applicant complains now that it was “highly unreasonable” for the Tribunal to put the onus on the applicant to produced evidence of the Punjabi paper in which he claimed it was stated that a new political party had been formed, particularly in view of the fact that the applicant had told the Tribunal that this was the case.
First, the Tribunal is entitled to test an applicant's claims, and seek corroborative evidence from an applicant when it has doubts about what an applicant has said. Second, in the specific circumstances of the applicant’s case, he himself made first reference to the existence of the newspaper article (CB 65.5):
“I asked him how Mr. Daljit Singh Bhittu had declared the formation of a new party in April this year. [The applicant] responded that he had read it in the newspaper “Ajit”, so had joined the party.”
The Tribunal then specifically put its concerns to the applicant when it reports that:
“I told him I found it difficult to understand why the authorities might have allowed Mr. Bhittu access to the media in order to call for the formation of a new separatist party.” (CB 65.7)
The Tribunal then reports:
“[The applicant] agreed that the government would not have agreed to this access. He did not know how it had become known publicly. I asked him if he had a copy of the article in which it was revealed and he said he did not. I put to him that I had been unable to locate any evidence that Mr. Bhittu had made such an announcement this year. He responded that perhaps the Indian government did not tell other governments about it.” (CB 65.8)
It is hardly “highly unreasonable” of the Tribunal to have asked the applicant if he had a copy of a newspaper article which he himself had first made reference. Nor can I see any need, as is now asserted by Mr. Jayawardena, for the Tribunal to have gone looking for specific newspaper reports when the applicant clearly said he agreed that Mr. Bhittu would not have been provided with any access to make any media announcement, and that further the applicant did not know how the “call” had become known publicly. (No evidence by way of a transcript of the hearing has been put before the Court to contradict the Tribunal’s account of what occurred at the hearing with the applicant). The Tribunal's question to the applicant as to whether he had a copy of the article, cannot in the circumstances be seen as a “highly unreasonable” (or indeed any degree of unreasonableness) question. Further, this was not a demand that he produce evidence. It is a request to, or a clarification from, the applicant as to whether he could provide a copy of the newspaper article. Far from being “highly unreasonable” this was consistent with an opportunity provided to the applicant to bring forward any corroborating evidence to support his claim of some call having been made publicly, in light of the Tribunal's doubts that it had been made, as the applicant had claimed, while Mr. Bhittu was in prison.
Further, and in any event, I can only agree with Mr. Reilly's submission that the absence of this particular piece of evidence was only one of a number of reasons the Tribunal gave for rejecting the credibility of the applicant’s claims in this regard. There is nothing in this particular aspect of the Tribunal's reasoning which would go anywhere near to establishing the threshold for unreasonableness as has set out in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230. I also note the respondent’s reference in written submissions to Director of Animal and Plant Quarantine v Australian Pork Ltd (2005) 146 FCR 368 (FC) at [63]-[66], and [103]. Further, to the extent that this ground is essentially a request for impermissible merits review this aspect also fails before this Court. This ground does not succeed.
In all, the two grounds put forward on behalf of the applicant now are not made out. The grounds put forward by the applicant's legal representative do not show jurisdictional error on the part of the Tribunal. The application is dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate:

Date: 21 July 2006