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Federal Court of Australia |
Last Updated: 1 March 2006
FEDERAL COURT OF AUSTRALIA
SZEPQ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 133
IMMIGRATION – refugee – protection visa –
whether finding of lack of credibility based on erroneous fact amounts to
jurisdictional error.
Migration Act 1958
(Cth)
SZEPQ
v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE
REVIEW TRIBUNAL
N2109 of 2005
TAMBERLIN
J
SYDNEY
10 FEBRUARY 2006
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SZEPQ
APPELLANT |
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AND:
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MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS
AFFAIRS
FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT |
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DATE OF ORDER:
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WHERE MADE:
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THE COURT ORDERS THAT:
1. Appeal allowed.
2. Decision of the Federal Court Magistrate be set aside and the matter remitted to the Refugee Review Tribunal for determination in accordance with law.
3. Costs awarded in favour of the appellant.
Note: Settlement and entry
of orders is dealt with in Order 36 of the Federal Court Rules.
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AND:
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REASONS FOR JUDGMENT
1 In this matter the applicant claimed to be a citizen of India who arrived in Australia on 30 November 2003 and lodged an application for a protection visa with the Department of Immigration. Thereafter, a delegate of the Minister refused to grant a protection visa. On 31 March 2004, the applicant applied to the Refugee Review Tribunal for a review of that decision. The Refugee Review Tribunal affirmed the decision of the delegate not to grant a protection visa.
2 It is apparent from a consideration of the decision of the Tribunal that a central plank of the applicant's case was that his father had extensive involvement in the activities of the Khalistan Liberation Army and this had led to persecution. The applicant based his claim for refugee status on the fact that he would be identified with the Khalistan Liberation Army, although he assured the authorities that he had only preached the Sikh religion and had not taken part in any terrorist activities. The applicant alleged that the Indian police did not trust him, and that he had been taken by them to an unknown destination where he had been tortured. He said that his brothers and uncle bribed the police.
3 The applicant told the Tribunal he later married and went to live with his in-laws, but the police came to know of his whereabouts and again persecuted him. He also stated that he came to Australia as a member of an agricultural delegation and had experienced no trouble leaving India. In addition, the applicant claimed he was the President of the Khalistan Liberation Army in a subdistrict in Jalandhar in the Punjab. He stated he was an ordinary member of the Khalistan Liberation Army prior to 1990, and was its President from 1995 to 1998. The applicant said he feared returning to India because he was blacklisted by the police for being a supporter of the liberation of Khalistan - which I understand is a Sikh movement for an independent state - and a member of the Khalistan movement.
4 Nevertheless, it was put to him by the Tribunal member that the Sikh militant movement was no longer active in the Punjab. The Tribunal pointed out that the applicant had been able to leave India without a problem, and put it to him that if had he been blacklisted, he would not have been able to leave India or obtain a passport. The applicant stated that he had paid money to an agent to convey him to Australia.
5 It was also put to the applicant that India is a parliamentary democracy where people are able to express their political opinion. The applicant stated that if the Tribunal needed more documents, he would require more time to organise their production. It was further put to the applicant that his leader was one of the people who make decisions in India, whereupon he stated that the elections were won when he was imprisoned.
6 The Tribunal had regard to a great deal of country information and a significant proportion of this is listed in the course of the decision. In its findings and reasons, the Tribunal made a strong finding that it did not accept the applicant as a witness of truth. It said his evidence was vague and implausible, and the Tribunal expressed satisfaction that the applicant had tailored his evidence in order to enhance his claim to refugee status. In particular, in coming to this conclusion, the Tribunal member referred to the fact that the applicant had claimed to be President of a local branch of the Khalistan Liberation Army whose leader was Singhmann, a member of parliament. The Tribunal stressed that the applicant claims to be on a police blacklist for his membership of this organisation even though the Khalistan Liberation Army does not appear to be known to independent sources and certain evidence suggests that the Sikh movement is no longer active in the Punjab. The Tribunal also highlighted that the applicant was able to leave India legally with a passport in his own name.
7 It seems to me that the central finding –based on the findings of a lack of credibility and the fraudulent fabrication of evidence to support the applicant’s claim- was the firm and clear determination that no such organisation as the Khalistan Liberation Army existed. The Tribunal suggested that if the organization had existed in Khalistan from about 1984, it would have been known to sources such as the US State Department, the Australian Department of Foreign Affairs and Trade, the United Kingdom Home Office and the United Nations High Commission for Refugees. As documented at page 86 of the Appeal Book, the Tribunal member said "I do not accept the organisation does not exist." This is an error, and obviously means that the member did not accept that the organisation existed. For this reason, the Tribunal did not accept the applicant was on a police blacklist because of his membership of the Khalistan Liberation Army.
8 When the matter came for hearing before me, on appeal from the decision of Federal Magistrate Smith, my attention was directed to a communication from the Australian Department of Foreign Affairs and Trade (Document No.:CX2551 of 6 July 1992), which expressly refers to the Khalistan Liberation Army and states that no such organisation is known. Notwithstanding that, in the next paragraph the document states that:
The Khalistan Liberation Army operates out of Pakistan along the border region with the Punjab and promotes and uses violence to achieve its objections which are unclear beyond the establishment of Khalistan.
9 To some extent there is a contradiction in this document, but in my view it is quite clear that the document strongly supports the conclusion that the Khalistan Liberation Army existed and was operative at the time of the refugee information request.
10 This document, referred to on page 79 of the Appeal Book, was before the Tribunal and constituted clear evidence that the Khalistan Liberation Army did exist. Therefore one of the principal reasons, if not the principal and most important reason, for a finding of lack of credibility and fraudulent conduct was based on a clearly erroneous fact. In my view, this is a sufficiently basic error to amount to an error of jurisdiction. It has been put for the Minister that first, the cable is ambiguous and secondly, that on a fair reading of the cable the benefit of the doubt should be given to the conclusion reached by the Tribunal member. However, I consider that the error is so clear from the document and in the reasons of the Tribunal that this course should not be adopted.
11 It is also put for the Minister that there are other reasons for making adverse findings on the question of credibility. This is so, but these reasons are somewhat scant, and pale into insignificance alongside the important finding that the Khalistan Liberation Army did not exist and therefore the appellant must have been telling lies. For this reason, I consider that there is a clear error in relation to the finding, and not only an error of fact, but a basic error of principle in coming to this conclusion with regards to credibility.
12 It is then said that there is evidence to the effect that the appellant could relocate in India, and this is based on country information documents on which the Tribunal relied. However, in coming to this conclusion, it must be that the Tribunal has based the finding of relocation on the fact that the applicant has been disbelieved in this case; and, as the High Court has pointed out in the past, one important factor in considering whether there is a real chance of persecution is the treatment which an appellant has been subjected to historically. If an appellant’s claim of persecution is disbelieved, then of course it is easier to reach a conclusion that there is a chance of relocation.
13 If such a claim is believed, however, the conclusion as to relocation may be different. The degree of anticipated animosity, hostility or harassment will be much greater if a finding is made that the person in fact has been persecuted. In the present case, the applicant's contentions have been totally rejected on the basis that the organisation simply did not exist. Therefore, in my view, the question of relocation is not a sufficient answer to the error which the applicant alleges exists and which amounts to a jurisdictional fact.
14 There is also a matter raised as to the question of whether there has been procedural unfairness either in a statutory form or according to the ordinary applicable administrative law principles. In my view, I am not persuaded that there has been any breach of the obligation to provide procedural fairness in this case. I think the applicant was on clear notice that his story was disbelieved and he had an opportunity to put forward his case. The Tribunal member clearly raised issues with him that went to the question of the credibility, and I do not think the the decision of the Tribunal fails on this basis.
15 Also, having regard to the reasons which I have given above, I believe that there has been an error by the learned Federal Court Magistrate in affirming the decision of the Refugee Review Tribunal and rejecting the application for review. Accordingly, in my view, the appeal should be allowed. The decision of the learned Magistrate should be set aside and the matter remitted to the Tribunal for determination in accordance with law.
16 I also make an order as to costs in favour of the appellant. I note that there were other matters raised by the appellant that were not argued, and I know that there must have been preparation in relation to those grounds. However, in all the circumstances, I do not believe it is appropriate to apportion the costs in any way, and therefore the order as to costs is a total order rather than a partial order.
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I certify that the preceding sixteen (16) numbered paragraphs are a true
copy of the Reasons for Judgment herein of the Honourable
Justice
Tamberlin.
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Associate:
Dated: 22 February 2006
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Solicitor for the Appellant:
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Mr. C Jayawardena
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Counsel for the Respondents:
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Ms. T. Wong
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Solicitor for the Defendant:
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Clayton Utz
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Last Written Submission
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8 February 2006
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Date of Judgment:
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10 February 2006
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