SZFJN v Minister for Immigration and Multicultural Affairs

[2006] FCA 300

FEDERAL COURT OF AUSTRALIA

SZFJN v Minister for Immigration & Multicultural Affairs [2006] FCA 300

SZFJN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS and REFUGEE REVIEW TRIBUNAL
NSD 2518 of 2005

MADGWICK J
20 MARCH 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2518 of 2005

BETWEEN:

SZFJN
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

MADGWICK J

DATE OF ORDER:

20 MARCH 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed with costs assessed in the sum of $4000.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2518 of 2005

BETWEEN:

SZFJN
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	MADGWICK J
DATE:	20 MARCH 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR:

1. This is an appeal from a judgment of the Federal Magistrates Court given by Federal Magistrate Scarlett on 7 December 2005.  His Honour dismissed an application seeking judicial review of a decision adverse to the appellant made by the Refugee Review Tribunal (‘the Tribunal’) on 18 November 2004 and handed down on 9 December 2004. 

2. The appellant’s claim was that he was an Indian citizen of Hindu ethnicity and religion, and an active member of the Congress Party, which he claimed upheld the rights and privileges of Hindus.  He lived in the State of the Punjab and had received threats to his life from the Akali Dal Party and had been beaten by supporters of the Akali Dal.  He feared persecution by adherents of the Akali Dal because of his political opinion.  He alleged that a few months before he came to Australia in January 2002, the government of the Punjab had changed and the Akali Dal had come to power.  The Akali Dal is a party representing the interests of Sikhs which mainly operates in the Punjab.  It seems that in 1997 a coalition formed by the Akali Dal and the Hindu Nationalist Party, known as the BJP, won state elections. However, there were more recent elections in February 2002 which were won by the Congress Party, and a large proportion of the Punjab Sikh population apparently voted for the Congress Party.  National elections for the Lok Sabha, India’s lower house of Parliament, were held in 1999 and again in 2004.  The appellant had claimed to be the ‘Organisor Secretary’ of the Congress Party for the city of Hoshiapur and furnished purported letters from the local President of the party which indicated that, in 1998 and 1999, the appellant occupied that office in the party.  The Tribunal Member rejected the credibility and reliability of the appellant’s evidence and was not satisfied:

   ‘...on the basis of all of the evidence that the applicant was a high profile member and campaigner for the Congress Party as he has claimed.  Indeed, the Tribunal is not satisfied that the applicant was an ordinary member of the Congress Party. ... His evidence was internally inconsistent and contrary to independent country information.’

3. The Tribunal gave reasons for those conclusions.  The appellant did not, in answering questions put by the Tribunal Member, display ‘the level of knowledge that might be expected from someone who claims to have had such a serious involvement and high profile’.

4. He originally claimed that the Congress Party had been in power in the Punjab when he joined that Party in 1998 but, as indicated above, that is wrong.  Later he said that the Akali Dal were in power in 1997 and he was not sure how long they had been in power.  He was not aware, so the Tribunal found, that the 1999 elections were national elections and he said that the Lok Sabha election was a State Punjab election. 

5. Of the written material, the Tribunal Member said:

   ‘The Tribunal has considered the letter and statements attesting to the applicant’s membership and role in the Congress Party and his duties as an organising secretary with the Party in the election period of the Lok Sabha in 1999.  However, the Tribunal prefers to rely on the independent country information in coming to its findings.  On the basis of all of the evidence before it the Tribunal is not satisfied that the applicant was a member, organising secretary or high profile campaigner for the Congress Party in elections for the Lok Sabha in 1999 or in elections for the Punjab State Legislature in 1997 or 2002.  The Tribunal therefore does not accept that the applicant was targeted by members of the opposing Akali Dal Party for reasons of his political activity as an organiser and campaigner for the Congress Party as he has claimed.  It therefore does not accept that he was threatened and physically assaulted by a group of unidentified persons who were acting for the Akali Dal Party.  It does not accept that he has suffered harm at the hands of members of the Akali Dal Party for reason of his political opinion or any other Convention reason.’

6. Nor could the Tribunal accept that there was any real chance of his suffering political persecution if he returned to India in the reasonably foreseeable future. 

7. The appellant was ultimately represented by counsel in the hearing before the court below.  Some effort was made by his counsel belatedly to file a further amended application to the court and an affidavit in support, but his Honour refused leave to do so because of the lateness.  As to the documents that were before the Tribunal, his Honour rejected a submission that the Tribunal had failed to consider them.  His Honour said (at [28]): ‘I am not satisfied that an error has been demonstrated ... the Tribunal, as long as it considers material is at liberty to prefer one set of material to another’.

8. It was also submitted that there was a denial of natural justice in not putting to the appellant that the Tribunal was minded to question the truth of what was stated in the documents attesting to his membership of the Congress Party.  His Honour rejected that claim.  It was also put that the Tribunal had adopted an unduly narrow view of what was involved in the concept of actual or imputed political opinion, having concerned itself principally with whether the appellant was a high profile member of the Congress Party and had not considered the position if he were simply a rank and file member of that party.  His Honour rejected that submission, taking the view, as I understand it, that it was open to the Tribunal to view the appellant’s claim as narrowly based on his active membership of the party, rather than broadly based on his simply being a member or a general supporter of the Congress Party.  Various other matters were put to his Honour and rejected but they have not been sought to be agitated here. 

9. The appellant sought here to raise a further fresh matter which was that the interpreter had, by telling the Tribunal Member that he was required elsewhere at a certain time, introduced an element of rush into the proceedings that had the effect of making the appellant flustered and unable to take the Tribunal Member carefully through some other documents that he had.  A reference to this was made in the affidavit that the court below rejected for lateness, but there was nothing in the intended written submissions there or the further amended application which complained of this aspect as a ground of denial of natural justice, or in any other way as constituting or contributing to jurisdictional error.

10. As the matter was not raised below and there is no appeal against the interlocutory judgment refusing leave to raise it, I do not consider there is any special circumstance that would justify the matter being raised now.  Had the matter been raised in an orderly way in the Federal Magistrates Court, the first respondent might well have wished to tender the tapes of the hearing in order to establish whether there was any sense of undue haste or pressure of time about the way in which the Tribunal Member conducted the case.  It is too late now to raise that matter. 

11. Turning to the matters that were raised in the notice of appeal, the first is that the Tribunal failed to consider the documents apparently emanating from the local President of the Congress Party.  That complaint on its face is mistaken.  It is clear that the Tribunal Member did consider them but considered that the assertion in them of the appellant’s leading role was quite inconsistent with the appellant’s low level of knowledge of the objective political facts surrounding him.  The Tribunal Member therefore did not accept that what was said in those documents was true. 

12. It was next said that the Tribunal failed to alert the appellant that it considered that the said documents were either fabricated or that there was a basis for rejecting the veracity of their contents.  It is perfectly clear from the Tribunal Member’s recounting of the course she followed in questioning the appellant that she was testing him about his knowledge of contemporary political facts.  There can only have been one purpose for this, and that was to test the veracity of his claims that he was politically active in the way he asserted.  It seems to me that the substance of the Tribunal Member’s concerns was adequately conveyed to him.  It does not seem to me that the Tribunal Member was required to say, in terms, to the appellant: ‘I put it to you that the contents of those documents are not true’, or some such absolutely precise summation of her concerns.  It must have been clear to the appellant that the Tribunal Member was having some trouble believing his account, notwithstanding that there were some documents that supported it. 

13. Similar complaints of failure to take into account, and/or failure to alert the appellant to the Tribunal’s intention not to rely on, another document were made.  That other document was a medical certificate which showed that on 18 December 2001 the appellant presented to a doctor and was treated for three days for multiple injuries and pain.  The nature of the injuries was not described.  The Tribunal Member did not embark on an inquiry as to whether the appellant was beaten at all.  The Tribunal simply did not accept the reasons given by the appellant for his claim that such beating was at the hands of Akali Dal supporters, namely reasons of his leading role in the Congress Party.  There was no occasion, given the method of reasoning adopted by the Tribunal Member, to discuss the medical certificate with him.  Nor does anything the Tribunal Member said convey a disbelief in either the authenticity of the certificate or the veracity of its contents. 

14. It was also said that there was a denial of natural justice in the Tribunal Member’s not expressly putting to the appellant her disbelief in the veracity of the contents of a police report.  This document purported to contain a statement as given by the appellant in which he complained of a beating on 18 December 2001 by seven or eight ‘unknown ... Sikh youths’ armed with spears and cutting weapons, and asserted that the youths made it very clear that they were attacking him because of his position in the Congress Party.  Although that document came into being by the hands of police officers, nevertheless it was no more than another account by the appellant of a story which the Tribunal Member rejected because of her disbelief of the appellant as to his claims of being a member, let alone a leading member, of the Congress Party.  There was no necessity, in my opinion, for her to challenge him in terms about every version of that story which he had previously given.  The Tribunal Member made no suggestion that the document itself was a fabrication and there was accordingly no reason to raise any such suggestion with the appellant.

15. It follows that the conclusions of the learned Federal Magistrate were correct and the appeal must be dismissed with costs, assessed in the sum of $4000.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:            28 March 2006

Counsel for the Applicant:	A Kumar
Counsel for the Respondent:	S Mason
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	20 March 2006
Date of Judgment:	20 March 2006