SZGXV v Minister for Immigration
[2007] FMCA 41
•17 January 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGXV v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 41 |
| MIGRATION – Review of decision of RRT – whether credibility findings were subject of jurisdictional error for failure to comply with s.424A – whether there was an independent or unimpeachable basis for Tribunal’s decision. |
| Migration Act 1958, s.424A(1) |
| Minister for Immigration v Al Shamry (2001) 110 FCR 27 SZFXJ v Minister for Immigration [2006] FMCA 1317 SZEEU v Minister for Immigration [2006] FCAFC 2 SZDDS v Minister for Immigration [2006] FCA 1428 SZGLL v Minister for Immigration [2006] FCA 150 Applicant S20/2002 v Minister for Immigration [2003] HCA 30 MZXGR v Minister for Immigration [2006] FCA 1167 |
| Applicant: | SZGXV |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG2126 of 2005 |
| Judgment of: | Raphael FM |
| Hearing date: | 17 January 2007 |
| Date of last submission: | 17 January 2007 |
| Delivered at: | Sydney |
| Delivered on: | 17 January 2007 |
REPRESENTATION
| Solicitors for the Applicant: | Silva Solicitors |
| Counsel for the Respondent: | Mr G Johnson |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
Application be dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2126 of 2005
| SZGXV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of India. He arrived in Australia on 4 April 1997. On 3 July 1997 he lodged an application for a protection (Class AZ) visa with the Department of Immigration and Multicultural Affairs. On 21 July 1997 a delegate of the Minister refused to grant a protection visa and the Tribunal affirmed the decision of the delegate on 13 April 1999.
The applicant sought review of the Tribunal’s decision on 15 June 2004 and on 8 April 2005 this court, per Lloyd-Jones FM, made consent orders that the Tribunal’s decision be set aside and remitted to the Tribunal to be heard and determined according to law.
The proceedings were then sent to the Tribunal differently constituted which heard evidence from the applicant and made a decision on 22 June 2005 to affirm the decision not to grant a protection visa. The Tribunal handed that decision down on 12 July 2005.
The applicant’s grounds for asserting that he had a well-founded fear of persecution for the convention reason of political opinion arose from his claimed association with the KLF and with Baber Kahlsa, both of which were Sikh militant organisations. The applicant claimed to be an active KLF member and to have been arrested by the authorities in 1984, in 1986, in 1994 and in 1996 arising out of the various matters referred to by the Tribunal in the final paragraph of [CB 75].
When the applicant came to give evidence before the second Tribunal he repeated the assertions of mistreatment and arrest, some of which arose out of more general matters such as the assassination of Mrs Gandhi and the assassination of Beant Singh and others more directly related to his KLF and BK activities, in particular the hiding of certain ammunition in his premises in 1994.
The Tribunal described the applicant’s fear in the first paragraph of its findings and reasons at [CB 80]:
“The Tribunal accepts that the applicant is a citizen of India as claimed and as supported by his past and current Indian passports. In his written evidence the applicant’s fears on return to India appear to be of being arrested, tortured and killed in a fake encounter, by the authorities, because of his involvement with BK and KLF, and/or persecution by way of being charged by the authorities, with being a terrorist. The applicant told this Tribunal that if he returns to India now the police are still looking for him and he fears being arrested and killed by police for reasons associated with BKs ammunition. However, the Tribunal is not satisfied that any of the applicant’s fears, if he returns to India now, are well-founded.”
The Tribunal justifies the last sentence of the extracted decision in a number of paragraphs, the first of which deals with the applicant’s credibility and which makes adverse credibility findings based upon inconsistencies between his written evidence and his oral evidence to the first Tribunal. The Tribunal details some of those inconsistencies but it then goes on in the second paragraph to make the following point:
“Although much of the applicant’s evidence is very unreliable, for the present purpose, the Tribunal prefers the applicant’s oral evidence as it was given directly to the Tribunal under oath and the Tribunal had the opportunity to at least try and explore and clarify his claims and evidence. Considering the applicant’s claims and evidence to this Tribunal, the Tribunal is not satisfied that the applicant was a member of BK as claimed as his oral evidence to this Tribunal about his BK activities does not support the claim that he was a member rather than a possibly reluctant supporter…”
The Tribunal then goes on to consider the more general claims made by the applicant of arrest and detention arising out of the Gandhi and Beant Singh assassinations. The Tribunal finds in favour of the applicant in relation to those matters albeit based upon independent country information rather than the applicant’s personal statements. The Tribunal then goes on to make its findings:
“However, the Tribunal is not satisfied that the applicant’s fear of persecution by the authorities is well-founded if he returns to India now. This is because as the Department’s decision, first Tribunal’s decision, and this Tribunal noted, there have been significant changes in the Punjab, especially since the early to mid‑1990s. The Tribunal accepts that Sikh militancy is no longer active in the Punjab and that the area has witnessed peace now for a decade. Even militants who have served their sentences, live a normal life there now.
In addition, the Tribunal does not accept that police or the authorities generally were looking for the applicant at the time he left India or subsequently, including for reasons associated with the BK ammunition. This is because the Tribunal accepts the applicant’s claim that BK took the ammunition away in 1994 and he has had no contact with them since then and because the applicant’s evidence, for example about his last arrest, does not suggest that he was questioned about ammunition, rather than generally about the Beant Singh assassination and the whereabouts of terrorists the applicant did not know. The Tribunal also does not accept that the applicant was or is of adverse interest to the authorities before he left India or subsequently, because of the passage of time since then and because the applicant’s evidence suggests that he was not being searched for but he was only detained in 1996 because his ID happened to be checked at a Jalandhar City bus stop. On that occasion, as on other occasions, he was released without charge within a few days and although he continued to live in Jalandhar City, he had no further problem in the months that followed before leaving India in April 1997. Also, there is nothing other than the applicant’s assertion that he fears it to suggest that the police are still looking for him, and he obtained a replacement Indian passport from the authorities here without any problem.” [CB 77]
The applicant’s grounds for asserting that this decision is infected with jurisdictional error relates to the second paragraph of the findings and reasons at [CB 80] which deal with credibility. The basis of the failure to comply with s.424A(1) of the Migration Act 1958 (the “Act”) is said to be the failure to provide the applicant in writing with details of the reason or part of the reason for coming to the decision under review and the information that should have been provided to the applicant is said to be the statements which he made to the delegate; Minister for Immigration v Al Shamry (2001) 110 FCR 27 and to the first Tribunal.
As in SZFXJ v Minister for Immigration [2006] FMCA 1317 I am of the view that it is not necessary for me to delve into that debate and make a decision as to whether or not the credibility findings were the subject of a jurisdictional error because I am of the view that they formed no part of the Tribunal’s decision. I am of the view that the Tribunal made its decision on the basis of the evidence which it heard and disregarded entirely the concerns it had and which were expressed in the second paragraph about the applicant’s credibility. Where the Tribunal came to a view that the applicant’s credibility was an issue and it did not accept certain evidence it came to that conclusion on the basis of the evidence given to it and the Tribunal’s views of that evidence.
I am also of the view that the Tribunal had truly independent and otherwise unimpeached grounds for coming to its decision that the applicant had no well-founded fear should he return to India now or in the foreseeable future. Those grounds are the ones which I have extracted, being the changes in the Punjab and the fact that the applicant was not a person who was wanted by the police because of the ammunition problems which occurred in 1994.
As discussed with Mr Johnson in arguendo, I take the view that the Tribunal considered there were two independent bases of the applicant’s alleged fear, the first being a general fear of the type of arrest and mistreatment which the Tribunal itself accepted at [CB 81] might occur to any Sikh nationalist and the second, the more specific fear relating to the ammunition. The Tribunal dealt with each of these although its phraseology might indicate that it was dealing with only one claim.
The changes which have occurred in the Punjab in the last decade were matters of which the Tribunal obtained evidence by way of independent country information that has not been impugned by the applicant and this clearly has nothing whatsoever to do with the applicant’s credibility. It is an entirely independent fact. The Tribunal has accepted the truth of the applicant’s claims of general persecution and says that these no longer exist. Whatever my views as to the alleged breach of s.424A these conclusions could not be affected.
The second conclusion of the Tribunal concerning the ammunition also sidesteps any concern that the Tribunal may have felt about the applicant’s general credibility and deals with the matter purely on the basis of the evidence which the applicant gave to the Tribunal and which the Tribunal accepted for this purpose. In those circumstances his credibility on whether or not he hid the BK ammunition did not influence the Tribunal in the manner in which it made up its mind about the jurisdictional question in issue, namely the existence or otherwise of a well-founded fear.
Mr Silva who appeared on behalf of the applicant provided me with helpful written submissions and a thorough review of the relevant cases including SZEEU v Minister for Immigration [2006] FCAFC 2, SZDDS v Minister for Immigration [2006] FCA 1428, SZGLL v Minister for Immigration [2006] FCA 150; Applicant S20/2002 v Minister for Immigration [2003] HCA 30; and MZXGR v Minister for Immigration [2006] FCA 1167. To my mind, those cases support the view, which I have taken, that if there is an independent and unimpeachable basis for the Tribunal’s decision uninfected by any jurisdictional error under s.424A then the court can exercise its discretion not to grant the relief sought. Although Mr Silva urged me to find that a credibility finding of the type discussed by the Tribunal could not be independent of the other findings this is not a submission which I can accept in this particular case and for those reasons I would be unable to grant the relief sought.
I dismiss the application. I order that the applicant pay the respondent’s costs which I assess in the sum of $5,000.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
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