SZJLU v Minister for Immigration and Citizenship

[2007] FCA 1111

FEDERAL COURT OF AUSTRALIA

SZJLU v Minister for Immigration and Citizenship [2007] FCA 1111

SZJLU v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

No NSD 826 of 2007

FINN J
31 JULY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 826 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJLU
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

FINN J

DATE OF ORDER:

31 JULY 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 826 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJLU
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FINN J
DATE:	31 JULY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from an unexceptionable decision of a Federal Magistrate dismissing an application for judicial review of a decision of the Refugee Review Tribunal which refused to grant the appellant a Protection (Class XA) visa.  That decision was based upon adverse findings as to the appellant’s credibility.  The appellant is an Indian national.  His claim to refugee status is based on fear of persecution for reasons of political opinion. 

2. The findings of the Tribunal are, for present purposes, sufficiently and accurately set out in para 2 of the first respondent’s submissions which states:

   “2.2     The Tribunal:

   (i)did not accept the appellant’s claim that in March 2004 he was appointed campaign director of SAD-A [a political party] for the state election, because country evidence showed that the Punjab state election was held on 13 February 2002; 

   (ii)was not satisfied that the appellant held any official role within SAD-A or had any particular knowledge of Punjab politics in general, or of the SAD-A, or was publicly known for successful rallies and recruiting members to SAD-A;

   (iii)found that the appellant knowingly submitted a false document, the letter of appointment as campaign director, to support his claims;

   (iv)found he was not a credible witness;

   (v)found he had no political profile and was not targeted by the authorities on account of his political activism;

   (vi)found implausible his claims relating to a murder charge against him;  and

   (vii)found that if he was as he claimed removed from a gurdwara, which is a Sikh temple, this did not constitute discrimination or persecution.

   2.3The Tribunal concluded that the appellant was not a person to whom Australia has protection obligations under the Refugees Convention.”

3. The learned Federal Magistrate held that in making these findings and in arriving at the conclusions that it did the Tribunal did not fall into jurisdictional error.  Again for the sake of convenience, I will refer to the respondent’s submissions which sufficiently and accurately describe his Honour’s reasons.  The respondent’s submissions in this respect state:

   “2.4The Federal Magistrates Court held that the Tribunal did not fall into jurisdictional error, because: 

   (i)it was open to the Tribunal to find that the claims made about the murder charge were implausible and that the appellant did not demonstrate ‘serious harm’ within s 91R(2) of the Act;

   (ii)in making a factual finding as to the date of the state elections the Tribunal was entitled to rely upon country information;

   (iii)the question of credibility of the appellant was a factual finding for the Tribunal;

   (iv)the Tribunal did not fail to comply with s 424A of the Act because information provided by the applicant for the purposes of the review was excepted by s 424A(3)(b) from the duty of disclosure;

   (v)the appellant’s removal from a Sikh temple was not sufficiently serious harm to constitute persecution;  and

   (vi)there was no bias on the part of the Tribunal.”

4. There were three grounds to the appellant’s application to the Federal Magistrates Court, the first two of which are substantially the same as the grounds of appeal relied upon in this appeal, albeit the relevant errors are said to be a failure by his Honour to recognise the errors of the Tribunal.  It is appropriate to set out the two grounds in full though I would note that they are by no means clear in their burden and appear to do little if anything more than invite merits review by this court.  The grounds are:

   “Ground One

   A)The Appellant submit that the learned Federal Magistrate erred in law by not recognizing the Applicant’s argument that the Tribunal failed to assess Applicant’s ‘fears of harm’ suffered according to the Refugee Criteria and misapplied the Applicant’s Claims due to the following finding and thereby failing to evaluate the fears as per sec, 91R of the Migration Act.

   ‘On the evidence before it, the Tribunal is not satisfied that harm amounting to persecution has befallen the Applicant in the past for a Convention reason.  The chance that such harm will befall on him in the reasonably foreseeable future is remote.  It follow that the Tribunal is not satisfied that the Applicant has a well founded fear of persecution for a Convention reason.  He is not a refugee.’

   The Appellant submit that the following conclusions by the Tribunal further conclusions made by the Tribunal invigorated the Appellant’s argument that the Tribunal did not carry out a proper assessment of the fears and merely speculated its jurisdictional commitment as follows:-

   ‘If the Applicant was indeed being investigated for murder in November 2006, “it is implausible that his family would not have thought of calling their lawyer.  If he was being detained while investigations were ongoing, it is implausible that the Police would simply allow him to leave detention after the payment of a bribe.’

   The Appellant submits that the Tribunal was speculating on the matter that the Applicant was implicated in a murder case because of his political animosities and therefore the Tribunal failed to consider that the ‘fears of harm’ the Applicant suffered was due to a Convention reason and related to the Applicant’s refugee claims.

   The Appellant submit that the learned Federal Magistrate failed to explore the real issues as to the sec. 91R jurisdictional commitment of the Tribunal and whether the Tribunal has properly conducted the assessment as required under the law. Hence the Appellant submits that the both the Tribunal and the learned Federal Magistrate erred with regard to this ground.

   GROUND TWO        

   (B)The Appellant further submits that the learned Federal Magistrate yet failed to consider the Applicant’s argument that the Tribunal failed to reach the required satisfaction in terms of sec. 414 of the Migration Act 1958 with regard to the Applicant’s ‘political opinion’ under the Article 1(A)(2) of the Migration Act 1958, despite clear written and oral claims, when it concluded:-

   ‘The Tribunal notes that the Applicant knowingly submitted a false document (the letter of appointment as Campaign Director) to support his claims.  His willingness to do this raises serious concerns about his credibility and about the veracity of his other supporting documents.  Indeed the Applicant was not a credible witness’.

   The Appellant submits that the learned Federal Magistrate failed to consider the Applicant’s argument that the Tribunal did make a wrong conclusion that the Party letter of April 2004 appointing the Applicant as the Campaign Director of the Party was in connection of the campaigns for the future elections and he said in his claims:-

   ‘People has a great deal of faith in him in him;  people asked his help with their Problems.  He was very popular.  They bestowed titles on him such as “leader” and “village head”.  After the elections which he had already noted, his Party lost and he straightaway started working for the next General Elections.

   The Applicant submit that the Tribunal misunderstood the Applicant’s evidence and the written claims when branding the Applicant as a ‘fabricator’.  Hence the Appellant submits that the learned Federal Magistrate failed to make a finding whether the Tribunal’s classification of the Applicant as a ‘fabricator’ was rightly made.  This was a clear omission on the part of the learned Federal Magistrate.”

5. As to Ground One there is no basis at all for suggesting that the Tribunal failed properly to have regard to s 91R of the Migration Act in its consideration of the alleged persecution of the appellant. As is characteristic in Tribunal reasons for decision, that part of the reasons dealing with the relevant law referred to s 91R(1) and (2) and it particularised in short form the instances of serious harm set out in subs (2). There is nothing in the reasons that in any way suggests that the Tribunal misapprehended what was comprehended by “serious harm” in s 91R. Rather what the Tribunal did was to reject the evidence of the applicant which he relied upon to show the harm which he said was sufficient for s 91R purposes. As I have noted, the Tribunal found that the appellant’s claims about the murder charge were not plausible. Equally it found that his removal from a Sikh temple was not sufficiently serious harm to constitute persecution. In these circumstances no reasonable foundation remained for his case of fear of persecution involving “serious harm” to himself.

6. The second ground, as best I understand it, seems to be a challenge to the Tribunal’s adverse findings as to the appellant’s credibility and as to the plausibility of his claims.  His complaint, in substance, is simply that he was not believed.  In fairness to the Tribunal it should be emphasised that in its reasons it set out in detail the process of questioning in which it engaged with the appellant at the Tribunal hearing.  It put to him directly (a) the difficulties that it had with his evidence particularly in relation to its inconsistency with country evidence;  (b) the deficiencies in the knowledge he betrayed, particularly of politics in general and his own party in particular in the Punjab;  (c) the implausibility of actions upon which the appellant relied;  and (d) importantly, the probable falsity of the letter of appointment as Campaign Director referred to expressly in Ground Two.  As the Tribunal noted in its reasons, the applicant did not have much to say in response to these concerns. 

7. For my own part, and as with the Federal Magistrate who dealt in detail with each of the findings, I am satisfied that no appellable error was made by the Tribunal.  It entered upon a detailed examination of the appellant’s claims and evidence.  It disclosed its concerns during the hearing.  In the end the appellant’s credibility was not accepted.  There clearly was evidence which supported the factual finding made by the Tribunal in this regard.  It is unnecessary for me to set out in detail that examination by the Tribunal and the Federal Magistrate’s affirmation of the conclusions arrived at by the Tribunal.  No appellable error is betrayed in the reasons of the learned Federal Magistrate, no jurisdictional error is discernable in the Tribunal’s decision. 

8. The appeal should be dismissed with costs. 

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate:

Dated:        31 July 2007

The Appellant appeared in person.
Counsel for the Respondent:	Ms M Allars
Solicitor for the Respondent:	DMA Phillips Fox
Date of Hearing:	30 July 2007
Date of Judgment:	31 July 2007