SZGJE v Minister for Immigration and Multicultural Affairs

[2006] FCA 612

FEDERAL COURT OF AUSTRALIA

SZGJE v Minister for Immigration & Multicultural Affairs

[2006] FCA 612

SZGJE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND ANOR
NSD 2626 of 2005

STONE J
23 MAY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD2626 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGJE
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

STONE J

DATE OF ORDER:

23 MAY 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.The appellant pay the first respondent’s costs of the appeal fixed in the amount of $1500.

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	NSD2626 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZGJE APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS FIRST RESPONDENT
REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGE:	STONE J
DATE:	23 MAY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of Federal Magistrate Raphael upholding a decision of the Refugee Review Tribunal.  The Tribunal had affirmed a decision of a delegate of the first respondent to refuse to grant the appellant a protection visa.

2. The appellant is a citizen of India and a Sikh.  He claims to fear persecution on the basis of his perceived political opinion.  The Tribunal found that the appellant was a member of the All India Sikh Students’ Federation and although not active in the Sikh separatist movement was sympathetic to its cause.  Notwithstanding the fact that he was not active in the Sikh separatist movement, the appellant alleged and the Tribunal accepted, that he was detained on a number of occasions without charge for his perceived association with Sikh militants, both in his home town and also in another state.  The appellant moved from the Punjab into Delhi for a lengthy period, prior to leaving India for Australia. 

3. The Tribunal found that the appellant no longer had a well-founded fear of persecution in India, since circumstances had improved such that the chance of further persecution was remote.  The Tribunal referred to independent country information to the effect that the situation in the Punjab had changed substantially from the early to mid-1990s, and concluded that since 1997 a Sikh such as the appellant was no longer at risk in the region.  Secondly, the Tribunal found that the appellant could safely relocate within India, in particular to Delhi given that the appellant had lived there for a long period of time without experiencing any persecution. 

4. The appellant applied for review of the Tribunal’s decision in the Federal Magistrates Court.  The Federal Magistrate found it was open to the Tribunal to conclude, on the evidence before it, that the appellant no longer had a well-founded fear of persecution.  The Tribunal did not make a jurisdictional error in preferring independent country information to the evidence provided by the appellant.  Similarly, his Honour held that the Tribunal’s decision on relocation was a decision on a matter of fact that was ‘firmly within the jurisdiction of the Tribunal’. 

5. The Federal Magistrate also considered three grounds of appeal contained in an amended application that was filed on behalf of the appellant on 1 August 2005.  His Honour rejected the claim that the Tribunal had not considered the question of whether there was a real chance that the appellant’s life would be in danger if asked to return to India.  His Honour also rejected the claim that the Tribunal, in finding that the appellant could successfully relocate in India, had erred in applying Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1944) 52 FCR 437. In particular, his Honour found that the Tribunal had considered the economic and cultural difficulties that the appellant might face upon relocation.

6. The appellant’s notice of appeal claims only one ground of appeal, namely that the Tribunal relied upon an outdated country information report.  It is a matter for the Tribunal to assess the weight to be given to a particular piece of evidence.  It is entirely appropriate for the Tribunal to consider, in a particular set of circumstances, that independent country information is preferable to an applicant’s evidence.  The Tribunal’s findings were open on the evidence before it and this Court does not have jurisdiction to re-consider them.

7. The appellant has been unable to identify any jurisdictional error in the reasons of the Tribunal or any error in the Federal Magistrate’s reasons.  I have considered both sets of reasons for myself and can find no error in the relevant sense in either.  Accordingly the appeal must be dismissed with costs in the amount of $1,500.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:             25 May 2006

The appellant appeared in person.
Solicitor for the first respondent:	Sparke Helmore
Date of Hearing:	23 May 2006
Date of Judgment:	23 May 2006