MZWIR v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1069 (25 July 2005)

Last Updated: 8 August 2005

FEDERAL COURT OF AUSTRALIA

MZWIR v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1069

MZWIR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

VID 276 OF 2005

NORTH J
25 JULY 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 276 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	MZWIR APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	NORTH J
DATE OF ORDER:	25 JULY 2005
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellant pay the respondent’s costs of the appeal.











Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 276 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	MZWIR APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	NORTH J
DATE:	25 JULY 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

INTRODUCTION

1 This is an appeal from a decision of McInnis FM given on 21 March 2005. The Federal Magistrate dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 28 July 2000. The Tribunal had affirmed the decision of the delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, not to grant the appellant a protection visa. On 19 May 2005 the Chief Justice made a determination pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth) that this appeal would be heard by a single judge.

BACKGROUND TO THE APPLICATION AND THE CLAIMS BEFORE THE TRIBUNAL

2 The appellant is a 45 year-old citizen of India. He follows the Sikh religion. He claims to be fearful of being killed by government forces on account of his support of the Sikh Student Federation (SSF), which opposes the Indian Government and seeks a separate Sikh state.

3 The appellant claimed that when he was 14 years old, militants killed his parents due to their religion. He claimed that as a way of paying respect to their memories, he joined the Freedom Fighters, and shortly thereafter, in 1988 or 1989, the SSF. Within these organisations, he was involved in delivering papers and possibly ammunition in support of their causes.

4 The appellant resided and worked in Lebanon between December 1991 and March 1997. He claimed that whilst there, he donated money to the cause of Sikh separatism. During this period, he returned to India on four or five occasions.

5 The appellant further claimed that in September 1997, a friend of his who was a member of the SSF, whilst under arrest and being subjected to torture, revealed to the authorities the names of some of his associates, including the appellant. As a result, the appellant claimed that on 28 September 1997 he was arrested and detained for 10 days. He claimed that he was only released as a result of bribing an official.

6 On 20 October 1997 the appellant left India using a passport issued in his own name, arriving in Australia two days later.

THE TRIBUNAL’S REVIEW OF THE COUNTRY INFORMATION

7 The Tribunal conducted a review of relevant country information, which it found demonstrated the history of violent suppression of Sikh separatists and the serious abuses of human rights committed in the context of the Sikh separatist struggle. The Tribunal concluded from the country information that the violent suppression had the effect of restoring order, but that there still existed a climate of impunity that shielded abusive members of the security forces. However, the Tribunal concluded from the country information that ‘those who are not high-profile militant suspects are not at risk’.

8 In relation to airport security, the Tribunal concluded from the country information that no person who was of concern to the authorities could leave the country without detection, except perhaps by the use of a passport in the name of some other person.

THE TRIBUNAL’S FINDINGS

9 The Tribunal was not satisfied that the appellant’s claims were genuine. It found that he could not be relied upon as a witness of truth.

10 The Tribunal rejected the appellant’s claim to be an enemy of the government, and found that this claim had been concocted. It found that were the appellant an enemy of the government, he would not have been able to return to India from Lebanon on four or five occasions.

11 The Tribunal also found that there was a lack of specificity in the appellant’s oral evidence about his membership of the SSF. Further, the Tribunal found an inconsistency between the appellant’s own evidence that he was arrested on one occasion and the evidence from two documents which the appellant submitted, one from his wife and one from his lawyer, which stated that he had been arrested on many occasions.

12 Ultimately the Tribunal concluded:

... I am not satisfied that the applicant can be relied upon as a witness of the truth. Accordingly, I am not satisfied that he has ever been a member or that he has ever been involved with either the Freedom Fighters or the SSF. I am also not satisfied that he has ever been arrested by the authorities for the reasons he has claimed. Accordingly, there is no basis for me on which to be satisfied that he has a well-founded fear of persecution within the meaning of the Convention.

THE APPLICATION IN THE FEDERAL MAGISTRATES COURT

13 The appellant filed an application in the Federal Magistrates Court for review of the Tribunal’s decision on 24 May 2004. The grounds of that application were as follows:

1. The RRT erred in law and thereby did not act within jurisdiction in making the decision because

(a) The RRT erred in law in failing properly to interpret or apply the law including section 36(2), section 91R(1) and Part 7 of the Act in determining whether the applicant had a well-founded fear of future persecution, and thereby the tribunal failed to consider and determine relevant material being the substantive issues raised by the evidence presented by the applicant in support of his fear of future persecution.

(b) The RRT erred in interpreting the term ‘for reasons of ... membership of a particular social group’ in the definition of a refugee under the Refugees Convention incorporated by section 36(2) of the Act, and as a consequence by not giving any or any proper consideration to the applicant’s contention that because of membership of a particular social group in this case his family, he was liable to persecution by his brother in law, a powerful member of the Indian authorities.

(c) The RRT erred in interpreting section 91S of the Act, as a result of which it erroneously considered it ‘must find that the applicant is not a person who has a well-founded fear of persecution for reasons stated in the Refugees Convention.’ (Court Book p. 81.4)

(d) The RRT failed to put to the Applicant country information in its possession or available to it.

(e) The RRT considered submissions made by the secretary of DIMIA made pursuant to s 423(2) of the Migration Act 1958 and did not disclose fact to applicant.

(f) The RRT denied the applicant procedural fairness in its decision of the 28^th July, 2000.

14 Upon hearing the application for review, the Federal Magistrate pointed out that some of the grounds were clearly inapposite. For instance, in ground (a), s 91R of the Migration Act 1958 (Cth) (the Act) was referred to, yet that section was not in force at the time of the Tribunal’s decision. Further, ground (b) referred to persecution by ‘his brother in law, a powerful member of the Indian authorities’. This allegation had no connection with the appellant’s case. Similarly, ground (e) made reference to submissions made by the Secretary of the Department of Immigration and Multicultural and Indigenous Affairs, whereas no such submissions were apparently made in the appellant’s case.

15 The Federal Magistrate tried to understand the gist of the case put by the appellant. He explained the concept of jurisdictional error. He examined the decision of the Tribunal in view of the explanation of the law concerning jurisdictional error. Ultimately, the Federal Magistrate determined that the Tribunal had not made any jurisdictional error.

THE APPEAL IN THIS COURT

16 The appellant filed a notice of appeal in this Court on 4 April 2005. The grounds were handwritten, apparently by the appellant himself. He was not been represented on the hearing of the appeal, but an interpreter was present to interpret his submissions. The grounds of appeal are as follows:

1. I can’t go back to my country, police is still looking for me. They still come to my place and ask from family about me.

2. If I go back I fear they can kill you.

3. If I go back they can put more pressure on my family about my residing place and hunt for me to kill me.

17 The orders sought by the appellant are stated as follows:

1. As per the judgment I can’t stay in Australia, means I have to go back to my country.

2. I want to take refugee and stay in Australia permanently.

3. Give me work permit to work so that I can be self-reliable and pay the court fees as well.

18 The appellant filed an written outline of submissions on 11 July 2005. It details the factual background to the appeal, and makes contentions of law relating to the application of the privative clause in the Act, as interpreted by the High Court in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2002) 211 CLR 476 and Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1; (2002) 211 CLR 441.

19 The submissions are in broad terms, and not specifically directed to any particular appeal point. The nearest which the submissions come to dealing with the facts of the actual appeal is at [13]–[14], which read as follows:

The Tribunal in the present case concluded that that persecution feared by the applicant was not a fear of actual persecution in the present day Punjab.

The applicants [sic] submit on the basis of the Tribunal’s own reasons for decision that the Tribunal has erred in construing in the definition of a refugee for the purposes of section 36(2) of the Act the term in Article 1A of the Refugee Convention: ‘persecution for reasons of ... race, religion ... political opinion, etc.

20 The written submissions do not engage with the reasons which the Tribunal gave for rejecting the appellant’s claims. The essential reason for the Tribunal’s decision was its conclusion to reject the appellant as a credible witness.

21 As the appellant does not speak English, I asked whether he was responsible for the outline of submissions. It seems to have been drafted by someone with some knowledge of the law. The appellant explained that the outline was drawn by a friend of his who is presently studying law.

22 The appellant addressed some short oral submissions to the Court. He restated some of the essential facts of his claim. He explained that a friend of his in a similar situation returned to India three months ago, that the friend was picked up and that nobody knows where he is. This matter is clearly irrelevant to the disposition of this appeal. Apart from its generality, it relates to evidence, which was not before, and could not have been before, the Tribunal. I asked the appellant to address the question of the mistake, if any, made by the Tribunal. His response was that ‘[t]hey want me to go back. I don’t want to go back.’

23 The notice of appeal, the written outline of submissions and the appellant’s oral submissions do not allege any jurisdictional error made by the Tribunal, or any error of law made by the Federal Magistrate. This alone is sufficient to dismiss the appeal. However, I have examined the decision of the Federal Magistrate and that of the Tribunal, and I can see no evidence of any relevant error. The Tribunal decided the application on the basis that it could not accept the appellant as a witness of truth. It explained the reasons why it rejected his claims. It made an assessment of the evidence which he gave and that which he tendered. In so doing, it acted within its jurisdiction. So much was determined by the Federal Magistrate, and I agree with that decision. The appeal must therefore be dismissed with costs.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated: 5 August 2005

Counsel for the Appellant:	The Appellant appeared in person with the assistance of a Punjabi interpreter
Counsel for the Respondent:	WS Mosley
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	25 July 2005
Date of Judgment:	25 July 2005