SZIQH v Minister for Immigration and Citizenship [2007] FCA 106 (14 February 2007)

Last Updated: 14 February 2007

FEDERAL COURT OF AUSTRALIA

SZIQH v Minister for Immigration and Citizenship [2007] FCA 106

Re Minister for Immigration and Multicultural Affairs; Ex parte applicant S20/2002 (2003) 198 ALR 59
Re Refugee Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
SZIQH v Minister for Immigration & Multicultural Affairs [2006] FMCA 1489






















SZIQH v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 1971 OF 2006

NICHOLSON J
14 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1971 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZIQH Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	NICHOLSON J
DATE OF ORDER:	14 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The description of the first respondent be amended to ‘Minister for Immigration and Citizenship’.
2. The appeal be dismissed.
3. The appellant pay the first 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
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1971 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZIQH Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	NICHOLSON J
DATE:	14 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal from a decision of a Federal Magistrate (Scarlett FM) made on 25 September 2006: SZIQH v Minister for Immigration & Multicultural Affairs [2006] FMCA 1489. In that decision, his Honour dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) dated 28 February 2006 and handed down on 21 March 2006. In that decision the Tribunal affirmed the decision of a delegate of the first respondent not to grant a protection (class XA) visa to the appellant pursuant to the provisions of the Migration Act 1958 (Cth) (the Act).

Appellant’s claims

2 The appellant was found by the Tribunal to be a citizen of India. Before the Tribunal he claimed to have a well-founded fear of persecution from Babbar Khalsa, the local communist group in the appellant’s home area, because of his association with Muslims. The appellant claimed that he owned a business which always employed two Muslim employees due to the forty per cent Muslim customer base. The claims involved the Babbar Khalsa threatening the appellant to dismiss his Muslim employees and customer base, with personal threats made by the local Babbar Khalsa operative. As the appellant did not yield to these threats, his shop was looted and set on fire and the appellant himself was personally attacked. The appellant claimed he responded to this by making a complaint to the police but was approached by Babbar Khalsa members who were aware of the complaint. The appellant also claimed that other local business people were threatened and killed by the Babbar Khalsa.

Tribunal’s reasons

3 The Tribunal found the appellant and his claims were not credible. It did so for four principal reasons. Firstly, it found the oral evidence given by the appellant to be hesitant, vague, lacking in spontaneity and rehearsed. Secondly, specific evidence was not credible such as the fact the appellant took the threats by the Babbar Khalsa lightly when those threats were endorsed by a local leader who had killed a Chief Minister or that the Babbar Khalsa did not carry out its threats whilst the appellant was at home with injuries for a three month period. Thirdly, it appeared to the Tribunal the appellant modified his evidence to overcome any adverse conclusions the Tribunal may have had with the evidence. Fourthly the Tribunal did not consider the claims were credible in light of independent information regarding Babbar Khalsa’s activities which indicated Babbar Khalsa was essentially defeated at the time of the Tribunal’s decision and was based in Pakistan which was a Muslim country.

4 The Tribunal also considered the documents supplied by the appellant but gave them little weight as they did not provide direct evidence of who injured the appellant and the reasons for the injury. The Tribunal found the appellant had not been threatened or assaulted and concluded there was no real chance of harm to the appellant.

Federal Magistrate’s reasons

5 Before the Federal Magistrate, the appellant relied on an amended application filed on 27 June 2006. The appellant raised grounds that the Tribunal failed to apply the law, failed to apply the definition of persecution, failed to accept the appellant’s claims and did not consider the medical reports submitted by the appellant in support of his claims. The first three can be joined in to a general ground of there being a lack of evidence for an adverse credibility finding.

6 His Honour found the principal reason for the Tribunal affirming the delegate’s decision was based on the adverse finding concerning the appellant’s credibility. He found this was not reviewable, as credibility is a matter for the Tribunal and credibility findings are findings of fact. He stated at [22]:

‘In my view the principal reasons why the Tribunal affirmed the Delegate’s decision was based on the adverse findings as to the applicant’s credibility. It is well established that credibility is a matter for the Tribunal. Findings as to credibility are findings as to fact and so long as there is evidence then a Court on judicial review will not disturb such findings.

7 In relation to the documents constituting the appellant’s medical evidence he stated at [24]:

‘I am satisfied that the Tribunal did consider the applicant’s medical evidence but as that evidence did not and could not show who it was who had injured the applicant or why, it’s weight was limited. The Tribunal had already found an adverse view of the applicant’s credibility at this stage.’

8 Further, his Honour stated that the Tribunal was entitled to rely on country information even where it contradicted the evidence submitted by the appellant and there was no failure to apply the law in this respect. As none of the grounds were made out and jurisdictional error was not established, the Federal Magistrate dismissed the application.

First ground of appeal: lack of evidence for adverse credibility finding

9 The first ground contends that the Federal Magistrate erred when failing to recognise the applicant’s argument that the fact findings made by the Tribunal were made without any evidence or material before the Tribunal and therefore it was contrary to the law.

10 As has been set out, there were four foundations to the Tribunal’s conclusion that the appellant lacked credibility. Two of these were based on the appellant’s demeanour and approach to his evidence. Two were based on the Tribunal’s assessment of the evidence. Demeanour is a legitimate foundation for the Tribunal to have relied upon: Re Refugee Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 at [34] per Gleeson CJ, Gaudron and Gummow JJ. There is no basis to conclude that there was no foundation for the Tribunal’s conclusion and hence for the conclusion of his Honour in [22] of his reasons.

The second ground of appeal: medical evidence

11 This ground is directed to [24] of his Honour’s reasons. The ground contends that the Tribunal erred in law in failing to address the appellant’s oral evidence concerning his claims.

12 Although the ground refers to the Federal Magistrate having failed to act as a merits reviewer, his Honour was in fact acting on review, not on merits review. It is the Tribunal which reviewed the appellant’s application on its merits.

13 The documented medical evidence comprised hospital and medical records. In themselves they did not contain any evidence that the treatment which the appellant was receiving had arisen from the attack which he alleged emanated from the Babbar Khalsa. However, the Tribunal stated in its reasons relating to the acceptance of the medical documentation that ‘after some questioning [the appellant] explained that the x-rays and medical documents related to injuries he sustained when he was attacked by members of the Babbar Khalsa’. When the Tribunal reached its adverse credibility finding in relation to the appellant it stated that ‘in reaching this conclusion the Tribunal has taken into account the x-rays and documents the applicant presented at the hearing but has given them little weight as they do not provide direct evidence of who injured the applicant or why’.

14 It was clearly open to the Tribunal to give little weight to the medical documents. The adverse credibility finding was made with regard to and in spite of the medical evidence; that is, the adverse credibility finding subsumed those documents. This was not a case where the Tribunal failed to consider the evidence as a whole when reaching its adverse credibility finding: Re Minister for Immigration and Multicultural Affairs; Ex parte applicant S20/2002 (2003) 198 ALR 59 at 63 [12] and 70 [49].

Conclusion

15 For these reasons the appeal must be dismissed with costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholson.

Associate:

Dated: 14 February 2007

The Appellant represented himself
Counsel for the Respondent:	J Mitchell
Solicitor for the Respondent:	DLA Phillips Fox
Date of Hearing:	12 February 2007
Date of Judgment:	14 February 2007