SZFEC v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1391

FEDERAL COURT OF AUSTRALIA

SZFEC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1391

MIGRATION – appeal from Federal Magistrates Court – no point of principle

SZFEC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 988 OF 2005

TAMBERLIN J
SYDNEY
22 SEPTEMBER 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 988 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	SZFEC APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	22 SEPTEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The appeal is dismissed with costs.

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 988 OF 2005

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

JUDGE:	TAMBERLIN J
DATE:	22 SEPTEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of Federal Magistrate Scarlett delivered on 30 May 2005, dismissing an application for judicial review of a decision of the Refugee Review Tribunal made on 28 August 2002.  The Tribunal had affirmed a decision of the Minister not to grant a protection visa to the appellant.

2. The history and background of the matter are set out in the reasons for judgment of the Magistrate and I will not repeat them here.

3. When the matter came on for hearing before me this morning, I had the benefit of written submissions on behalf of the appellant as well as an oral address in relation to those submissions and I heard the case argued on behalf of the Minister.

4. There were three paragraphs in the reasons for decision of the Tribunal that the appellant referred to and which are at the centre of this appeal.

5. The first paragraph in the findings and reasons of the Tribunal is in the following terms:

   I find it implausible that a single meal, provided by the applicant's family under threat of harm, some six months previously would enliven the police interest in the applicant, then just twenty, as he has claimed when nothing at all appears to have happened to his father.  I do not accept that this occurred and therefore do not accept that it prompted the police interest in the applicant he has claimed followed.

   The submission made by the appellant in relation to this paragraph is that it was unwarranted on the face of the evidence and that no real reason was given by the Tribunal for its finding that the incident did not occur.  The word “implausible” is vague and this Court has, on numerous occasions, referred to the unsatisfactory nature of a mere allegation that something is implausible without explaining the basis on which it is said to be arrived at.

6. In one sense, to say something is implausible, is to say that it is not accepted.  However, counsel for the Minister submits that there is more to the decision of the Tribunal than this simple rejection.  There is, first of all, a reference to general country information, which does not need to be put to an appellant in precise terms before a finding is made, and it is said that this information supports the submission that the Sikh militant movement in Punjab were all but eliminated by 1996.  In addition, counsel for the Minister referred to the fact that the father of the appellant was not harassed or persecuted in any way despite the appellant saying that his father was present at the time when the terrorists forced the family to provide a meal to them.

7. There is no satisfactory general finding of credibility, however, but the indications in the judgment, on a fair reading, are to the effect that the Tribunal gave primary emphasis to the general country information and acted to confront the appellant with the doubts that the it had about the credibility of his account.  In response to this challenge, the appellant said that he could obtain proof from the police station and the village council but the Tribunal declined to wait for the provision of any further documentation.

8. In my view, the reasoning in relation to the rejection of the claim that the incident occurred is unsatisfactory but I am not persuaded that it is so unsatisfactory that it can be said to amount to jurisdictional error.  In a case where the reasoning is manifestly untenable, then there may be jurisdictional error.  However, in this case, there are some additional factors referred to in the decision of the Tribunal that provide a basis for the finding which is made.

9. The first finding of the Tribunal, namely, that it was implausible that a single meal would enliven police interest in the appellant, is critical because the later finding as to credibility and the rejection of the account of what led the appellant to the police is dependent on the first finding.  As a consequence of the first finding, the Tribunal said that it:

   “… was unable to accept that 10 officers came to [the appellant’s] home very early in the morning and that he was detained and questioned a number of times as he has claimed.  I do not accept that [the appellant] has been or would be suspected of involvement with the SSF.”

10. The third matter raised by the appellant in relation to the Tribunal decision is a statement by the Tribunal that, in the light of country information, the changed circumstances had been sustained for several years now and there was no sign of a resurgence in militancy which could lead to a police campaign as had occurred earlier.  It is said on behalf of the appellant that it is not possible to predict what is likely to happen and that something may eventuate which would lead to the position taken by the member, which is supported by the country information, being reversed.

11. There is one other matter to which I should refer, and that is the fact that although the decision-maker appears to have been of the view that the appellant could relocate in another part of India, there is no clear finding on this matter.  There is a statement in the decision of the Tribunal that, given that there has been an adverse interest taken by the Punjabi authorities in the appellant, it did not accept that adverse interest would be sparked by his return.  This, in my view, does not amount to a finding that it was open to the appellant to relocate in Delhi or in any other part of India.

12. Nevertheless, independently of that consideration, there is substantial country information in a report of the United Kingdom Immigration and Nationality Directorate to support the proposition that the hard core militants have either been physically wiped out or are no longer in India and reasons are given for that in that report.  The appellant referred me to material which suggested that human rights abuses have continued to occur in Punjab and that the police are still out of control in many areas, however, in the United Kingdom report, it is said more specifically in relation to Sikhs, that they did not constitute a persecuted group.  That report was published in October 2001, relatively close to the time when the appellant came to this country.  There is a further statement in that report that rank and file members of groups that were, at one time, targeted, are now generally safe.

13. In these circumstances and having regard to this material, although unsatisfactory in relation to the use of the concept of implausibility and also in the absence of a finding in relation to relocation, I am not persuaded that there is any error of law or principle in the reasons given by the Tribunal or in the reasoning of the learned Magistrate which would cause me to vary in any way the decision made by the Magistrate.

14. Accordingly, in the light of this reasoning, the appropriate course is that I order that the appeal be dismissed with costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:            28 September 2005

Solicitor for the Appellant:	C Jayawardena
Counsel for the Respondent:	C Mantziaris
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	22 September 2005
Date of Judgment:	22 September 2005