SZIGZ v Minister for Immigration - [2006] FMCA 1324

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIGZ v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1324

MIGRATION – RRT decision – Indian Sikh fearing persecution by Muslim militants – disbelieved by Tribunal – no jurisdictional error found.

Migration Act 1958 (Cth), ss.91R(1)(b), 474(1), 476, 476(1)

Minister for Immigration v Rajalingam (1999) 93 FCR 220
NAKF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 210
SZAYT v Minister for Immigration [2005] FCA 857

Applicant:

SZIGZ

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 384 of 2006

Judgment of:

Smith FM

Hearing date:

28 August 2006

Delivered at:

Sydney

Delivered on:

28 August 2006

REPRESENTATION

Counsel for the Applicant:

Mr Jayawardena

Solicitors for the Applicant:

Chandra Jayawardena, Solicitor

Counsel for the First Respondent:

Mr Bird

Solicitors for the Respondents:

Phillips Fox

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 384 of 2006

SZIGZ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 7 February 2006 under s.476 of the Migration Act 1958 (Cth), which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal dated

23 December 2005 and handed down on 12 January 2006.

The Tribunal affirmed a decision of a delegate made on 1 September 2005 which refused to grant a protection visa to the applicant.
Under s.476(1) the Court has “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”, but its powers are subject to limitation under s.474(1), so that I do not have power to send the matter back to the Tribunal unless I am satisfied that the Tribunal's decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant's refugee claim should be believed, nor whether he qualifies for a protection visa.
The applicant obtained a visitor's visa to come to Australia. He visited Australia between 12 June 2005 and 17 June after travelling to other countries. He then returned home and re-entered Australia on 23 June 2005. On 20 July 2005, he lodged an application for a protection visa assisted by his present solicitor and migration agent, Mr Jayawardena.
His application attached a statement explaining why he feared to return to his country of nationality, India. His fears concerned events which had happened to him when he was working in Jammu, in Indian Kashmir, as a receptionist for his auntie who owned a gym.

He claimed to have observed people who he suspected were Muslim militants, and to have started informing the police about his sightings of these people. He said that he observed them shortly before an incident in November 2002, when a bomb exploded near a bus stand in a Hindu temple. Then nearly a year later, in October 2003:
I saw 4 men roaming around the gym looking for some place to put up and carrying some papers and bags. I phoned the police instantly. Some of them saw the phone in my hand and they already suspected me of being an informer to the police. But at that moment they were busy with their own work. In the meantime the police arrived and a big encounter ensured in which two terrorists were killed, one policeman was seriously injured and two terrorists managed to escape.
…
It became known to the terrorists that I was responsible for that encounter and they started tracing me.
He claimed that "one day" when he was returning to his village in Punjab on his motorcycle he was knocked over by a jeep, taken captive, severely beaten and left for dead. He recovered consciousness in hospital and lodged reports with the police. He claimed that he subsequently left his job in Jammu, and came back to his village, but:
They attacked me again during which my right arm was hit with a sword but my life was saved. I lodged a police report again but nothing happened.
He then decided to leave Punjab, and went to work in a neighbouring state of Haryana, but:
In January 2005, about 4 men came in a white-coloured Maruti van and attacked me while I was going to work on my motorcycle. This time they spared no concern in ensuring that I was dead. One of the men fired an arrow at my left leg and I fell to the ground. But because a lot of people had gathered around the scene, those four men ran away.
He said “I thought that my life can not be saved in this country”, and decided to leave India.
In his protection visa application, he stated that he would be providing “certified copy of police complaint”, “affidavit/statutory declaration certifying the injuries/ordeal suffered in the hand of Kashmiri militants”, and "medical certificates re injuries/treatment provided". He said: "I may need at least 06 weeks to provide these". However, no such documents, nor any other corroboration, was ever provided to the Department or on appeal to the Tribunal.
The applicant attended a hearing conducted by the Tribunal on 22 November 2005 accompanied by his solicitor, Mr Jayawardena.

A transcript of the Tribunal's hearing is not in evidence before me, but the Tribunal gave a description which I have no reason not to accept. The applicant gave some more details of his story. In relation to the incident in October 2003, which gave rise to the claimed attacks by Muslim militants, the Tribunal said:
He said that he saw them again in October 2003 and he informed the police of this. He said the police came around and there was a big encounter in which two of the Muslims were killed. Two of the four escaped and a police officer was injured in the episode. The applicant said then that he did not see them for a while but somehow, they came to know that he was the police informer.
The applicant told the Tribunal that subsequently he was travelling home on his motorbike to visit his parents when he was hit by a jeep from behind. Two men in this jeep were the same ones that he had seen in the attack in Jammu. He recalled that he was attacked and fell unconscious. These men left him for dead on the roadside, but somebody found him and took him to hospital in Dasuya. He said he woke up in Chopra Hospital, Dasuya. He stayed there for ten or fifteen days. His family came and when he was released, he lodged a complaint with the police. He said the police took no action. The applicant said he returned to stay at the family home with his parents. However, he lost his wallet when he was attacked and it seemed that his attackers were thereby able to ascertain where he lived and, not being sure if he was dead or not, were on the lookout for him. He said he was on the highway one day, making his way to the city when he was attacked by these same people. He said that they had a weapon, like a sharp sword with which they attacked him. Again, he said he had to go to the police station to lodge another complaint but the police took no action.
The Tribunal asked whether the two so-called terrorists who were killed in the encounter in Jammu were identified and named. The applicant said that he did not know this. The Tribunal then asked whether he had read anything in the paper or whether there had been any reports. He replied that he had not seen or read any reports. The Tribunal asked whether in fact, he saw this encounter. He said he saw the police shooting and he saw the dead bodies.
The Tribunal then asked the applicant for further particulars about the encounter he claims to have witnessed in the street in Jammu. The Tribunal asked how he knew that two of the so-called terrorists had escaped. He replied he heard this. The Tribunal then asked whether the police had contacted him after the event or had sought any statements from him. He replied that he had given them his address but he said that he was going back to Punjab. The Tribunal asked when this discussion with the police had taken place, to which he replied it was ten days after the event. The Tribunal asked what the next contact after the event was, between him and the police and he said it was after ten days. He said that he contacted a police post about half a kilometre from his place and informed them that he was leaving the area.
In relation to the attack after that incident, the Tribunal also referred to further questioning:
The Tribunal then asked the applicant about his return journey to the Punjab in which he claimed to have been involved in the incident. The Tribunal asked how long the journey takes. The applicant said that it is a distance of 160km and by motorcycle it takes about four hours. The Tribunal asked when this happened. The applicant initially said at night and the Tribunal asked for the date and the year, the applicant said it was possibly October or November.
…
The Tribunal put to the applicant, that according to his evidence, the attack in Jammu had taken place in October 2003 and he had left that area some ten days later. The Tribunal concluded from this, that the events which he had recently described, that is the first attack on the highway when he returned to the Punjab, would have taken place in about November 2003. He replied that this is correct. The Tribunal asked when the second highway attack in the Punjab area took place, to which he said it was not long after the first, possibly twenty days later. The Tribunal then asked the applicant how long he stayed in the Punjab before he relocated to [a town in Haryana]. He said he thinks he went [there] in January 2005. The Tribunal asked the applicant whether anything else happened to him in the Punjab in the intervening period, which by the Tribunal’s calculation would have been more than one year. The applicant said no incident happened, nothing further happened to him but he was afraid. The Tribunal asked whether he worked or how he derived income to which he replied that he received income from his land; he grew wheat and rice. The Tribunal asked who looked after the land now. He said that it has been leased because his family is unable to look after it. The Tribunal asked the applicant why he decided to go to [Haryana] some one year later, if nothing had happened to him throughout 2004. He said he wanted to relocate where no one knew him.
I note that the timing of the first attack after the police killed two of the militants is unclear. However, the applicant appears to have told the Tribunal that he had had two subsequent contacts with the police at

10-day intervals before he left to visit the Punjab, and was attacked in the course of that journey. In other words, the applicant appears to have told the Tribunal that there was at least 20 days between the October 2003 incident and the first attack on him when he was leaving Jammu. His second attack then occurred when he was in Punjab, “possibly 20 days later” after the first attack. The applicant told the Tribunal about his move to Haryana over a year later, in 2005, where the third attack occurred.
The applicant also told the Tribunal about his reasons for travelling overseas. He told the Tribunal that his first visit to Australia "was a business-type trip" for his employer in Haryana, but that once he had returned "he was not comfortable there so he decided to return to Australia".
The Tribunal concluded its description of the hearing with a general query to the applicant as to whether there were other reasons which caused him to fear harm. The Tribunal described this part of the hearing:
The Tribunal asked if there are other reasons which caused him to fear harm, to which he replied there are not. The Tribunal asked why these particular people are intent on pursuing him and he said it was because two of them died as a result of the information that he provided to the police. The applicant added that this was also because he was Sikh and Muslims hate Sikhs. Seeking to summarise his claims, the Tribunal asked whether he agrees that the harm that he fears is from certain Muslim extremists whom he believes are terrorists and whom he knew in Jammu. He said that is correct. The Tribunal asked whether it is also the case that he fears they will seek to harm him because they believe he provided information to the police. He said that is also correct. The Tribunal asked whether there is any other reason for the harm he fears and he said it is because of his religion as a Sikh. The Tribunal noted that not all Sikhs are persecuted by Muslims in India. The applicant responded that Hindus and Sikhs are all afraid of Muslims. He said there have been clashes between Hindus and Muslims and there is hatred between the two. The Tribunal asked the applicant if he has suffered harm in the past because of his Sikh religion. He replied that he thinks that those who sought to harm him knew that he was a Sikh from the Punjab and informed the police.
Under the heading ‘Findings and Reasons’, the Tribunal accepted that the applicant was a Sikh who had been born and educated in Punjab and had worked in Jammu and Haryana States. The Tribunal identified his fears of being harmed in India by Muslim extremists who he claimed to have known by sight in Jammu, and who he claimed were aware of his having acted as a police informer.
The Tribunal clearly did not accept the truth of those claims. At the conclusion of its reasons, it said:
In the opinion of the Tribunal the applicant made the decision to return to Australia the second time for the reason that he preferred the life here and not because he was fleeing harm for any reason. Furthermore, the Tribunal concludes that the applicant has fabricated the claims relating to so-called suspected Muslim terrorists in Jammu to enhance his claims to refugee status.
That conclusion was based on reasons which the Tribunal gave, including an assessment of the plausibility of the applicant's claimed history in Jammu and Punjab, and the nature of his travels during 2005. The Tribunal's reasoning in relation to the first matter was:
The Tribunal finds that the applicant’s claims about the role he played by providing information which he alleges led to the deaths of two Muslim terrorists in Jammu to be implausible and his evidence overall lacks credibility. The applicant has stated in his evidence before the Tribunal that these persons whom he believes to have been Muslim terrorists believed that he was a police informant because he was a newcomer to the area and because they once observed him making a phone call. In his evidence before the Tribunal the applicant spoke about a particular incident in October 2003 when he saw these four people and informed the police of their presence. The police came and there was an encounter in which two of the terrorists were killed; two of them escaped. The applicant said that he did not see these people for a while but somehow they came to know that he was the police informer. The Tribunal concludes that if indeed Muslim terrorists had a suspicion that the applicant was a police informant providing information against them, their retaliation against him would have been swift. It does not accept that they would have largely ignored him in Jammu and then have pursued him to the Punjab some weeks later. The Tribunal does not accept that the applicant provided information against these people in Jammu and that he was targeted for harm by them subsequently in the Punjab in the vicinity of his home or elsewhere. Furthermore the Tribunal does not accept that the applicant was attacked by these same people in (town), Haryana in February 2005. The applicant told the Tribunal that he remained in the Punjab from late 2003 until January 2005 and that he did not suffer further attacks or harm. The Tribunal finds it implausible that having sought to seriously harm the applicant in Punjab in late 2003 on two occasions and having failed, these people would have simply given up on this and left the applicant to live undisturbed, at his parents’ home in the Punjab from late 2003 until 2005 when he claims to have relocated to (Harayana).
After dismissing the applicant’s specific claims, the Tribunal by addressed the applicant's general claim that he would be harmed by a Muslim because he was a Sikh. It said:
At the conclusion of the hearing the applicant claimed that he fears that he will be harmed by Muslims because of his Sikh religion. He did not, however provide evidence of harm suffered in India for that reason. As the Tribunal observed at the hearing not all Sikhs are persecuted by Muslims in India. Furthermore, the independent evidence before the Tribunal does not support a conclusion that being a Sikh in India currently gives rise to a well-founded fear of persecution for a Convention reason.
The Tribunal's general conclusion about the case was:
In the Tribunal’s view there is no plausible evidence before it that the applicant has suffered persecution in his country because of his political opinion, his religion or for any other Convention reason. Nor in the Tribunal’s view does the evidence establish that there is a real chance that the applicant will suffer persecution for a Convention reason either now or in the reasonably foreseeable future if he returns to his country. Having regard to the above the Tribunal is not satisfied, on the evidence presently before it, that the applicant has a well-founded fear of persecution in India within the meaning of the Convention.
The applicant filed an application in this Court which did not show a solicitor on the record, although Mr Jayawardena witnessed an affidavit in support. But Mr Jayawardena appeared at the first Court date, and has been on the record of the proceeding since then. He appeared today, and relied upon an amended application filed on 31 May 2006. It contains three grounds.
The first ground is:
1. That the Tribunal failed to carry out the review in a “constructive & articulate manner” because of the mixing up of the Applicant’s claims which was in breach of sec. 415 of the Migration Act 1958, owing to the following conclusions:-
“At the conclusion of the hearing the Applicant claimed that he fears that he will be harmed by Muslims because of his Sikh religion. He did not, however provide evidence of harm suffered in India for that reason” (Court Book page 98, para 02)
The Applicant submit that the Tribunal had in its own decision contradicted the above due to following:
“The Tribunal asked the Applicant what harm he faces in India. He replied that he was attacked by some Muslims in India and they were after him. The Tribunal asked him why these people would seek to harm him to which he responded that they knew that he was a Police informer and some of their people were killed as a result of the Applicant’s action.” (Court Book page 89, para 02)
The Applicant submit that the Tribunals’ conclusion that “he did not however provide evidence of harm suffered in India for that reason” was a wrong conclusion and therefore amounts to a jurisdictional error.
This ground attacks the Tribunal's conclusion, which I have extracted above at [17], in relation to the applicant's claim that he would be harmed "by Muslims because of his Sikh religion". Mr Jayawardena’s contention, as I understood it, was that the Tribunal’s statement: “He did not, however, provide evidence of harm suffered in India for that reason” indicated jurisdictional error, because it was not open to the Tribunal to say that the applicant had not provided such evidence.

He argued that implicit in the applicant's written statement was a claim that he had been motivated to become a police informer by a feeling of Indian nationalism as a Sikh. He also argued that the applicant in his response to the question of the Tribunal about whether there were "other reasons which caused him to fear harm", which I have set out above at [13], the applicant claimed that Muslim extremists had been partly motivated to inflict harm on him because of his Sikh religion or ethnicity. Mr Jayawardena argued that the Tribunal failed to take into account these aspects of the applicant's evidence.

However, in my opinion, the Tribunal did not fail to take into account any part of the applicant's claims.
It is necessary to read the Tribunal's conclusion concerning the applicant's situation as a Sikh in India in the context of its earlier findings. In particular, in the context of the preceding paragraph, which contained the Tribunal's conclusion that "the applicant has fabricated the claims relating to the so-called suspected Muslim terrorists in Jammu". The Tribunal at that point plainly addressed, and rejected, the applicant's claims that his Sikh religion or ethnicity was in part a reason for the harms that he claimed to have encountered in India.
As I read its next paragraph, concerning the applicant’s fear of harm by Muslims because of his Sikh religion, the Tribunal was doing no more than addressing his general situation in India as a Sikh person who had not established any harm which the Tribunal was prepared to accept as true.
I therefore do not consider any jurisdictional error is made out under ground 1.
Ground 2 of the amended application was:
2. That the Tribunal acted unreasonably towards the Applicant when dealing with the Applicant’s claims because of its failure to understand the criteria in Article 1(A)(2) of the 1951 UN Convention relating to the Status of Refugee, when it concluded:
“In the Tribunal’s view there is no plausible evidence before it that the Applicant has suffered persecution in his country because of his political opinion, religion or for any other Convention reason. Nor in the Tribunal’s view does the evidence establish that there is a real chance that the Applicant will suffer persecution for a Convention reason either now or in the reasonably foreseeable future.” (Court Book page 89, para 03)
The Applicant submits that the Tribunal did not want to realize that the Applicant was a Sikh who had been vigilant against the carnage caused by the Muslim terrorists in Jammu & Kashmir to de-stabilise the Indian rule and due to he being a person of Sikh origin and faith, he became target in the hands of Muslims terrorists. Hence the above was wrong conclusion causing a jurisdictional error.
This ground attacks the Tribunal's final conclusion, which I have set out above at [18], where it said:
There is no plausible evidence before it that the applicant has suffered persecution in his country because of his political opinion, his religion or for any other Convention reason.
As I understood Mr Jayawardena's argument, it was that this conclusion was not reasonably open to the Tribunal, or was not based on rational grounds, because its conclusion which rejected the applicant's claims as implausible were irrational. He argued that the Tribunal rejected the applicant's claims on assumptions about the behaviour of Muslim terrorists, in particular as to whether they would delay inflicting harm on an informer in the manner that the applicant claimed.
The Tribunal's reasoning about this appeared in the paragraph I have extracted above at [16]. The Tribunal concluded in relation to the first attack, that it did "not accept that they would have largely ignored him in Jammu and then pursued him to the Punjab some weeks later".

The Tribunal also found it "implausible that having sought to seriously harm the applicant in Punjab in late 2003 on two occasions and having failed, these people would have simply given up on this and left the applicant to live undisturbed at his parents' home in the Punjab from late 2003 until 2005 when he claims to have relocated" to Haryana.
In my opinion, there was nothing irrational in the Tribunal making these points in the course of its assessment of the applicant's claims. As I have noted above, the Tribunal was in a difficult situation where no corroboration whatsoever had been presented to it. It was required to form a view as to the credibility of a bare narrative presented to the Tribunal by the applicant. The evidence before the Tribunal, in my opinion, did allow it to draw adverse inferences from the aspects of the applicant's narrative which the Tribunal relied upon in support of its conclusions of implausibility.
The Tribunal also had other reasons, particularly concerning the applicant's travel to Australia, supporting its conclusion that his claims were fabricated. In my opinion, there was no unreasonableness amounting to jurisdictional error affecting this conclusion of the Tribunal, and I reject this ground.
The ground as pleaded also makes an implication of bad faith on the part of the Tribunal. This implication was made more clearly in Mr Jayawardena's written submission, which said:
The Applicant submits that the manner in which the Tribunal made those findings gives him a definite view that the Tribunal either wilfully ignored giving due weightage to the applicant's claims or mixed up the issues purposely.
This is a contention that the Tribunal has purported to exercise its powers of review with bad faith. Such an allegation is not to be made lightly, since it contends an actual state of mind on the part of the Tribunal (see NAKF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 210 at 218 to 219). In the present case, this contention was made without any proper foundation.

The Tribunal, in my opinion, showed in its reasons that it endeavoured conscientiously to assess the truth of the uncorroborated claims presented by the applicant. I reject all suggestions of bias or bad faith.
Ground 3 in the amended application was:
3. That by virtue of the errors made by the Tribunal in Ground 1 and two above, the [sic] failed to uphold the ‘jurisdictional commitment’ envisaged in Sec. 91R of the Migration Act whether the Applicant would be a possibility of a ‘real chance’ of facing ‘serious harm’ if he was asked to return to India.
The Applicant submit that the Tribunal’s finding that “nor does the evidence establish that there is a real chance that the Applicant will suffer persecution for a Convention reason either now or in the reasonable future” was a wrong finding because of the ‘primary error’ made by the Tribunal that there was no Convention reason involved in the Applicant’s claims. Hence this was a clear ‘jurisdictional error’ made by the Tribunal.
I have difficulty understanding this ground, and it was not clarified in the course of Mr Jayawardena's submissions. If it contends that the Tribunal failed to consider whether the applicant's account might be true, notwithstanding its opinion that it was fabricated, I do not consider that it is made out. On current authorities, the Tribunal was only obliged to assess whether its adverse finding might be wrong, and to assess possibilities short of probable, if it appears that the Tribunal was left in some doubt (see Minister for Immigration v Rajalingam (1999) 93 FCR 220). In the present case, the Tribunal was not left in any doubt that the applicant had invented his history, and in my opinion it was not obliged to assess in its statement of reasons the possibility that it was wrong.
In his oral submissions, Mr Jayawardena sought to explain this ground by reference to s.91R(1)(b). This is a definitional provision which requires the definition of "refugee" in the Convention to be read so that ‘persecution’ which is feared has to "involve serious harm to the person". Mr Jayawardena referred me to a judgment of Wilcox J in SZAYT v Minister for Immigration [2005] FCA 857 at [30-31], where his Honour discussed a judgment of Crennan J as to the meaning of this provision. I note also that the effect of the provision is currently before the High Court.
However, I do not consider that the present Tribunal made any error in its understanding or application of s.91R(1)(b) in the present case.

It has plainly accepted that the history claimed by the applicant did involve acts of serious harm amounting to persecution, and has assessed the risk of him encountering such events if he returned to Punjab. Its decision turned upon its rejection of his credibility in relation to those claims, not an opinion that he did not claim to fear harms amounting to “persecution”.
Taking into account all the written and oral submissions that have been presented to me on behalf of the applicant, I am unable to be satisfied that the decision of the Tribunal was affected by any jurisdictional error. It is therefore a privative clause decision, and I must dismiss the application.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 15 September 2006