SZFZQ v Minister for Immigration and Citizenship
[2007] FCA 1774
•8 November 2007
FEDERAL COURT OF AUSTRALIA
SZFZQ v Minister for Immigration and Citizenship [2007] FCA 1774
SZFZQ AND SZFZR v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1273 OF 2007STONE J
8 NOVEMBER 2007
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1273 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZFZQ
First AppellantSZFZR
Second AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
STONE J
DATE OF ORDER:
8 NOVEMBER 2007
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be 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 1273 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZFZQ
First AppellantSZFZR
Second AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
STONE J
DATE:
8 NOVEMBER 2007
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal from a decision of the Federal Magistrate in which his Honour dismissed the appellants’ applications for judicial review of a decision of the Refugee Review Tribunal; [2007] FMCA 991. The Tribunal rejected the appellants’ application for protection visas. This was the second decision by the Refugee Review Tribunal in relation to the appellants’ applications. The first, given on 7 February 2005 was quashed by consent in the Federal Magistrates Court and the matter was remitted to a second Tribunal. It is this second decision which is the subject of the present appeal.
BACKGROUND
The appellants, who are both citizens of India, are husband and wife. Only the husband made claims under the Convention. The wife relies on membership of his family unit. Only the husband attended the hearing of the appeal and in these reasons, references to the appellant are to the husband.
The appellant claimed he had well-founded fear of persecution due to his membership of the Khalistan Liberation Organisation (KLO). He claimed to be deeply associated, while at school, with young Sikhs who wanted to liberate Khalistan, a proposed independent homeland for Sikhs. He said that because of his involvement with the KLO he was harassed by police. The appellant claimed that his family’s farmhouse was searched as some Sikh activists had stored arms there. The appellant asserted that in 1990 he and a friend were arrested by the police, tortured and imprisoned for 13 days, and then handed over to “Investigation police”, and falsely charged with harbouring extremists, before being taken to court and released on bail. The friend disappeared and was later killed in a “false encounter”. The appellant claimed that in 1991 he escaped to the Philippines, but by 1997 he believed that the situation had improved so he returned to India. He said that he then realised that he was on a blacklist and would not be safe anywhere in India, and so he returned again to the Philippines. The appellant claimed that he became a permanent resident of the Philippines but he discovered Indian police had been investigating his whereabouts in the Philippines and so decided to come to Australia.
TRIBUNAL DECISION
The Tribunal did not find the appellant to be a credible witness, as his evidence was found to be “vague, evasive, confused and inconsistent”. It appeared to the Tribunal that the appellant changed his evidence when confronted with discrepancies.
Problems were found with the documents submitted to the Tribunal in August 2006. These documents purported to be a letter from the appellant’s lawyer in India, an affidavit by a witness supporting the appellant’s claims, and an arrest warrant. The letter was found to have raised further inconsistencies in the evidence and no explanation was offered for this by the appellant. In relation to the arrest warrant the Tribunal said:
The first named applicant [the appellant] testified that upon being arrested by the police in 1990 he was detained for two to three weeks and falsely charged with being a terrorist. Only one case was lodged against him and he was issued with a First Information Report (FIR) in relation to the case. The arrest warrant he had submitted to the Tribunal related to the case that had been filed against him in 1990. The Tribunal noted that the warrant referred to a FIR dated 20 April 1988 which seemed inconsistent with his claim that he was arrested in 1990. The first named applicant stated that may have been because the police had looked for him in 1988. The Tribunal questioned this as he had testified that he only came to the attention of the police when he was arrested. [His] response was confused. First he said he did not know, then he mentioned 1988 and being arrested, before stating that the police could be bribed and let people go but they actually took him in 1990. Asked to clarify if he was now claiming that he was arrested in 1988 but paid a bribe to be released, [he] said that was not the case. Questioned further, his replies indicated that the police came for him but went away without arresting him because they were bribed.
Because of these inconsistencies in the evidence, as well as the late submission of the letter and the affidavit, the Tribunal did not accept the documents as genuine and gave no weight to them.
APPEAL TO THE FEDERAL MAGISTRATES COURT
The application for review in the Federal Magistrates Court filed on 17 January 2007 sought to quash the Tribunal’s decision. In an amended application filed on 1 June 2007 the appellant claimed that the Tribunal failed to comply with the Migration Act1958 (Cth) and the Migration Regulations1994 (Cth), and that the decision was an improper exercise of power conferred by the Act and Regulations.
The Federal Magistrate held that the appellant’s claims appeared to largely challenge the Tribunal’s factual findings and related to a claim for merits review. The Federal Magistrate noted that no satisfactory evidence was presented to support the appellant’s claim that he became a citizen of the Philippines and no claims were made of a well-founded fear of persecution there. There was no submission to explain how the Tribunal was in breach of the Act and no particulars of any section that may have been breached. The Federal Magistrate held that there was no apparent breach of ss 424A, 425 or 430 of the Act.
APPEAL TO THIS COURT
In the Notice of Appeal filed on 5 July 2007 the appellant claims that the Tribunal failed to observe “substantial justice” and “procedural fairness” and that the Federal Magistrate was in error in not making findings to this effect. The particulars in support of this claim again seem largely to address the merits of the Tribunal’s decision. The appellant says that the Tribunal failed to consider the appellant’s claims that his life was in danger, that the appellant was unable to relocate to other parts of India and that it failed to apply the “real chance test” in s 91R of the Migration Act 1958 (Cth).
When the appeal was called on for hearing the appellant applied for an adjournment so that he could seek legal advice. He said that he was sure he would be able to obtain legal advice but he was not able to give the Court any confidence that this optimism was justified. Copies of letters on the court file show that the appellants were advised by letter dated 14 August 2007 that the appeal would be heard during the period 29 October to 23 November 2007. Subsequently, by letter dated 20 September 2007, they were advised that the appeal would be heard today. Given the long period of notice during which there has been no application from the appellant for any adjournment of the appeal or extension of time for him to obtain legal advice, the present application is too late. I have no confidence that any useful purpose would be served by an adjournment and therefore have refused the application for an adjournment of the appeal. The appellant then added that he had no submissions to make on the appeal itself.
The first respondent asserts in its written submissions that a review of the original application for review, the amended application for review and the appellant’s submissions in the Federal Magistrates Court largely deals with the claims that have been made in the notice of appeal.
In relation to the appellant’s claim that the Tribunal failed to consider the fact that his life was in danger according to the criteria in the Convention a review of these documents shows that no such ground was raised in those terms. It is clear, however, that the Tribunal considered carefully the claims made by the appellant in relation to the basis on which he claimed a well-founded fear of persecution and, as I have already explained, rejected those claims. Insofar as the particulars purport to support the only ground of appeal they must be rejected.
Insofar as the claim relates to consideration of the appellant’s ability to relocate within India the important point to note is that the Tribunal did not accept that he had a well-founded fear of persecution. In the light of that finding, which was expressed to be without doubt, it was not necessary for the Tribunal to consider the relocation question. For similar reasons no criticism can be made of the Tribunal for not applying a real chance test.
The Federal Magistrate in my view was correct in failing to find any jurisdictional error in the reasons of the Tribunal and therefore I find no error in the Federal Magistrate’s reasons and on this basis the appeal must 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 Stone. Associate:
Dated: 20 November 2007
The appellant appeared in person assisted by an interpreter. Counsel for the 1st Respondent: S Sirtes Solicitor for the 1st Respondent: Sparke Helmore Date of Hearing: 8 November 2007 Date of Judgment: 8 November 2007
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