SZJUT v Minister for Immigration and Citizenship

[2007] FCA 1127

FEDERAL COURT OF AUSTRALIA

SZJUT v Minister for Immigration and Citizenship [2007] FCA 1127

SZJUT AND SZJUU v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

No NSD 722 of 2007

FINN J
1 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 722 OF 2007

BETWEEN:

SZJUT
First Applicant

SZJUU
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FINN J
DATE OF ORDER:	1 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application 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 722 OF 2007

BETWEEN:

SZJUT
First Applicant

SZJUU
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FINN J
DATE:	1 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal against an order of a Federal Magistrate dismissing an application for judicial review of a decision of the Refugee Review Tribunal refusing to grant the applicants’ Protection (Class XA) visa.  Leave is required as such an order is interlocutory:  see Federal Court of Australia Act 1976 (Cth) s 24(1A). The applicants who are Indian nationals are husband and wife. Only the husband has put forward positive claims. For convenience in exposition, I will refer to them simply as the applicant.

2. The reason for the Tribunal’s rejection of the application was that the Tribunal was not satisfied that the applicant had suffered any of the harm alleged.  Put shortly the applicant claimed to fear persecution in India because of his political involvement in the Khalistan Federation.  He claimed he was arrested and detained for 10-15 days following the attack on the Golden Temple on 15 June 1984.  He cut his hair to save his life.  His family fled and were scattered across India.  He was forced to take part in processions and gatherings of the Mann and Babbar Groups and, as a consequence, he and his family became the subject of police harassment.  He claimed the police confiscated one of his two buses and burnt the other.  He continued his association with the Khalistan Federation.  He claimed the police conducted raids to find him.  He left their house and lived with relatives.  The applicants obtained visas and went to Singapore and then came to Australia.

3. During the course of the Tribunal hearing, the Tribunal sought what it regarded as important details about what it regarded as “many aspects of his claims”.  While acknowledging that the events in part occurred many years ago, the Tribunal was of the view that overall the applicant’s evidence was general and lacked details raising doubts about the veracity of the claims.  Added to this there were plausibility concerns.  It itemised in some detail what those matters were, repeating after each item mantra-like that the lack of specific details raised doubts about the veracity of the claims.  The Tribunal’s reasoning is encapsulated in the following paragraph:

   “The lack of details, generality and vagueness in the applicant’s responses have meant that the Tribunal could not be satisfied that the applicant has suffered any of the claimed harm.  Furthermore, the applicant has not provided any corroborative evidence.  In light of those concerns and in consideration of the evidence as a whole, the Tribunal is not satisfied that the applicant has been a member of the Khalistan Federation since 1981/1982, or that he was ever involved in activities relating to the Babbar Group, including but not limited to going to Group’s procession(s) with his father, or that he was sent to gatherings of Sant Jarnail Singh Bhindran, or that the applicant was present on 15 June 1984 when the Golden Temple was attacked, or that he was jailed for 10-15 days, or that his father had been martyred at that place, or that the applicant cut his hair to save his life, or that the Mann Group and Babbar Group traced his whereabouts and came on his busses, or that they forced him to attend their processions and gatherings, or that the police discovered his attendance at gatherings and started to hassle him, or that the police confiscated one of his buses and took it to the police station where they locked it up, or that the police cancelled his route permit and later trashed and set fire to his second bus, or that he was ever beaten by the police, or that his income stopped and it became difficult to meet expenses, or that he returned home and continued his involvement in the Babbar Group, or that he ever met them secretly, or that the police found out in November 2005 that he was actively involved, or that in order to escape the police, he spent ‘some nights somewhere and other days with my relatives’, or that he was ever accused of murdering a religious man, or that the police did not protect him, or that the police hassled his wife, daughter and mother, or that he told his party about the police and members advised him that it was difficult for him to continue living there, or that they would arrange for him to leave, or that the police ever conducted raids to find him, or that the police set fire to the wheat crop, or that the applicant knows Jadib Singh Shouhan, or that he reported incidents to him, or that on or after 28 April 2006, they did not return home and lived in hiding with their relatives, or that his party got them an Australian visa, or that they cannot return to India.  In essence and for stated reasons, the Tribunal is not satisfied that the applicant has suffered any of the claimed harm.”
   (Emphasis in original)

   The Tribunal also acknowledged that Sikhs (of whom the applicant was one) can be ill-treated in India.  Nonetheless it did not accept that there was a real chance of the applicant being persecuted in India as a Sikh in the reasonably foreseeable future, or that he would receive inadequate State protection.  The visa application was refused.

4. The amended application heard by the Federal Magistrate contained two substantive grounds of appeal. There was in addition an unparticularised allegation of a breach of s 424A of the Migration Act 1958 (Cth) which the applicant declined to particularise at the hearing before his Honour. The two substantive grounds are substantially the same as those raised in the Draft Notice of Appeal. For convenience, I will set out here the terms of the Draft Notice:

   “GROUNDS:

   A.The Appellants submit that the learned Federal Magistrate erred by not recognising the Applicants argument that the Tribunal failed to assess Applicants refugee claims in a ‘Constructive and Articulate’ manner, despite the Applicant having made clear written claims and give clear oral evidence at the Tribunal hearing on 17^th October 2006, due to the following finding it made:-

   ‘The lack of details generally and vagueness in the Applicant’s responses have meant that the Tribunal could not be satisfied that the Applicant has suffered any of the claimed harm.  Furthermore the Applicant has not provided any corroborative evidence.  In light of those concerns and in consideration of the evidence as a whole, the Tribunal is not satisfied that the Applicant has been a member of the Khalistan Federation in in 1981-1982.’

   The Appellants submit that the Tribunal’s attempt to under estimate the clear evidence given by the Appellants’ both orally and in writing and concluding such as ‘the lack of details, generality and vagueness in the Applicant’s responses …’ etc; by the Tribunal clearly proves that the Tribunal has failed to act according its responsibilities under sec. 415 of the Migration Act 1958 and thereby made a jurisdictional error as per the Full Federal Court decision NABE.

   B.The Tribunal by its failure to conduct the review according to the provisions in sec. 415 of the Act invariably failed to comply with its jurisdictional commitment devolved upon it under sec. 91R of the Act to ascertain whether the Appellants had a real chance of either facing ‘serious harm’ or ‘persecution’ owing to the following conclusion made by the Tribunal:-

   ‘The Tribunal has considered the Applicants claims independently and Cumulatively.  Looking at the evidence as a whole, the Tribunal is not satisfied that the Applicants has suffered any Convention related harm or that there is a real chance of such harm occurring to the Applicant in the reasonably foreseeable future.’

   The Appellants submit that the Tribunal having reached the negative conclusions of the nature referred to in Ground One above, has made apparent contradictions and misapplication of the Applicants real claims and thereby omitted to assess the future threats of the Applicant and therefore committed jurisdictional error.”

   THE DECISION OF THE FEDERAL MAGISTRATE

5. The Federal Magistrate noted, as he was obliged to, that a finding of credibility is a finding of fact not to be set aside simply because a court might think that the possibilities of the case are against it.  Such a finding can be impeached if it can be shown that the fact finder has misused his or her advantage, or has acted on improbable evidence which was inconsistent with facts unconditionally established:  see Devries v Australian National Railways (1993) 177 CLR 472 at 479. The Magistrate concluded, correctly in my view, that the adverse finding of credibility that was made was open to the Tribunal on the material before it and accordingly there was no ground to set aside its findings.

6. The Federal Magistrate rejected the first of the grounds to the extent that it alleged a failure to consider the applicant’s claims properly, or to give its evidence proper weight, as being both inconsistent with the reasons and finding of the Tribunal and amounting to no more than a challenge to fact finding. The alleged failure to comply with s 415 of the Migration Act is difficult to understand.  Nothing was put before his Honour nor before me to show what that failure was.  Equally, the reference to the NABE decision, NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1, seems misconceived and his Honour so found.

7. The second ground relied upon, i.e. that the Tribunal failed to apply s 91R of the Act properly, simply seeks to challenge a finding by the Tribunal that it was not satisfied that the applicant has suffered any of the claimed harm.  That finding, as the Federal Magistrate indicated, was properly open to the Tribunal on the material before it with a consequence that this ground as well was rejected. 

   THE PRESENT APPLICATION

8. The application to this Court is without prospects of success.  As I have indicated, the grounds are in substance identical to those before the Federal Magistrate.  The accompanying affidavit does not advance the matter, the applicant indicating he was not happy with the findings made by the Tribunal which he says did not consider “my merits of the application” because he had an arguable case.  No written submissions have been filed.  The oral submissions made (the applicant was unrepresented) merely emphasised what he considered to be the merits of his case and the fear that he says he has.  These are not matters with which I can concern myself on this application. 

9. I have, in passing, indicated my own view that the learned Federal Magistrate correctly concluded that both grounds of appeal ought be dismissed.  They relate to findings of fact that were open to the Tribunal on the material before it.  It is unnecessary for me to reiterate what was said by his Honour.  As I am unable to say that the decision of the Federal Magistrate is attended by sufficient doubt to warrant its being reconsidered by a Full Court, I will refuse the grant of leave sought.

10. I will order that the application be dismissed with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate:

Dated:        1 August 2007

The Applicant appeared in person.
Counsel for the Respondent:	Ms D Watson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	31 July 2007
Date of Judgment:	1 August 2007