SZGBV v Minister for Immigration and Citizenship [2007] FCA 107 (14 February 2007)

Last Updated: 14 February 2007

FEDERAL COURT OF AUSTRALIA

SZGBV v Minister for Immigration and Citizenship [2007] FCA 107

Migration Act 1958 (Cth) ss 91R, 424A, 477(1A)



NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572
















SZGBV v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 2166 OF 2006

NICHOLSON J
14 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2166 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZGBV 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 2166 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZGBV 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 in respect of a decision of a Federal Magistrate (Nicholls FM) made on 16 October 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) of 29 October 2002. In that decision the Tribunal affirmed a decision of a delegate of the first respondent to refuse to grant a protection (class XA) visa to the appellant.

Appellant’s claims

2 The appellant is a citizen of India who arrived in Australia on 4 May 2001. The appellant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs (as it then was) on 4 June 2001. The appellant claims to be a Sikh activist who has worked for an independent Khalistan. He claims to have a well-founded-fear of persecution resulting from his political opinion and religion. The appellant asserts his family suffered following the assassination of Indira Ghandi by her Sikh bodyguards in 1984 with his family being arrested. He also claims that upon his release after ten days detention, as a result of the payment of a bribe, he became an activist for Sikh independence lending support in the form of food and assistance to terrorist groups Bhindrawake Tiger Force (BTK) and Babbar Khalsa (BK). He stated that as a result of this connection he was caught by police in 1989 and detained for three days. He claims he then joined Akali Dal who assisted the appellant and his family. Since 1993 the appellant asserts he was twice arrested and interrogated regarding his brothers, who were members of BK, with his passport taken. He claims that he was subsequently unable to maintain fixed employment or residence as a result of this pursuit by the authorities. The appellant claims he departed India in disguise.

3 A delegate of the first respondent refused the application for a protection visa on 18 October 2001. On 7 November 2001 the appellant applied to the Tribunal for a review of that decision. The appellant was invited to attend a hearing. The appellant attended and was assisted by a Punjabi interpreter.

Tribunal’s reasons

4 The Tribunal accepted that the family of the appellant suffered generalised harm following the Sikh uprising in the 1980s and that he was arrested and questioned over BK in 1989, 1993 and 1996. However, the Tribunal asserted that the interrogation of terrorist suspects is reasonable and is not persecution, particularly as within the political climate of India in 1989 the police had every right to be suspicious of the appellant as a result of his evidence that his brothers were members of BK. On the basis of independent country information it was found to be implausible that the authorities would have released the appellant if he was a source of concern to them.

5 The Tribunal accepted that the appellant joined Akali Dal and they assisted him. As a result of the appellant being in the care of Akali Dal it was unlikely that he would have been tortured because the membership to this moderate group demonstrated his opposition to BK and further, Akali Dal would have used its influence to prevent mistreatment. The Tribunal was not satisfied as to the credibility of the appellant in relation to his claims to have been in hiding from the authorities or that he was persecuted by police or was sought by them independently of being questioned with regard to his brothers. As a result the Tribunal was not prepared to accept the appellant departed India in disguise.

6 The Tribunal referred to independent country information in its decision to highlight the political freedoms enjoyed by Sikhs. Further this information was relied on to support its conclusion that it could not be satisfied the appellant would face persecution for Sikh ethnicity or religion.

Federal Magistrate’s reasons

7 On 14 April 2005 the appellant filed an application for judicial review. Before the Federal Magistrate in an amended application the appellant claimed the following:

1. The Tribunal failed to consider persecution as a result of political opinion;
2. The Tribunal did not consider the submission made by the advisor of the appellant;
3. The satisfaction of the Tribunal was not based upon reasoning which provided a rational or logical foundation for the belief;
4. The Tribunal failed to observe the Migration Act 1958 (Cth) (the Act);
5. An objection to the hearing invitation letter which it was said was not properly served;
6. The Tribunal made its decision without procedural fairness and that there was a breach of procedural fairness; and
7. At hearing the appellant sought to emphasise his high political profile as a result of joining Akali Dal which was not believed by the Tribunal.

8 The first respondent filed a notice of objection to competency as the appeal was lodged outside the time limit of s 477(1A) of the Act.

9 The Federal Magistrate stated that the Tribunal’s function was to determine whether a requisite level of satisfaction could be reached in relation to the appellant’s claims and that there was no indication that had not been reached. He also asserted that there was no onus on the Tribunal to disprove the claims of the appellant by raising reasonable grounds for not granting the visa.

10 There was no specificity in relation to the claim that the submissions of the appellant’s advisor were not considered. The Tribunal stated that it had considered all of the evidence before it and the Federal Magistrate failed to see that any claim put forward was ignored.

11 Any assertion that the decision was not based on reasoning which provided a rational or logical foundation could not be sustained as the Federal Magistrate found that the analysis of the Tribunal did not suffer for want of logic or infection by irrational considerations.

12 Considering the Tribunal’s hearing invitation and s 424A of the Act, the Federal Magistrate was unable to find the error alleged, that the Tribunal failed to properly observe the Act. Further any claim that the appellant did not receive proper notice of the hearing date was found to be unsupported with there being nothing before the Court to suggest procedural unfairness or to sustain such a claim.

13 The Federal Magistrate asserted, in relation to claims that the Tribunal made its decision without properly investigating the claims of the appellant, that there is no general obligation of a Tribunal to make enquiries and no special circumstances have been put forward which would require the Tribunal to make such enquiries. There is no obligation for the Tribunal to make the case for the appellant.

14 In relation to the claim made at hearing the Federal Magistrate found that the complaint of the appellant was simply merits review.

15 The Federal Magistrate noted the delay in bringing the application and said that the delay was unwarranted and unexplained so that it would justify the withholding of relief. However, in this instance no jurisdictional error was found in the decision of the Tribunal in any event.

First ground of appeal

16 The appellant’s first ground is that the Federal Magistrate was in error of law when he concluded:

‘In summary, while I accept that the applicant might have suffered some mistreatment in 1989 during an interrogation I am not satisfied that he lacks protection if threatened with such a situation in the future, perhaps over further official interest in his brothers’ activities.’

The ground appears to contend that the Federal Magistrate’s error was that, in reaching this view, he did not accept the appellant’s contention that the Tribunal lacked the required satisfaction in terms of s 91R of the Act with regard to the real chance test of future persecution likely to be suffered by the appellant. It also contends that the Tribunal reached the relevant fact findings hypothetically without carrying out the essential and significant assessment of the real chance of serious harm the appellant may face again in the future.

17 This ground of appeal is not an issue which was before the Federal Magistrate. The consequence is that the appellant requires the court’s leave. Such leave will only be granted where it is expedient in the interests of justice for the leave to be granted: NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51 at [163]- [166]. This involves consideration of whether the issues raised in the proposed ground have a reasonable prospect of success.

18 There is no such prospect here. The Tribunal accepted that the appellant might face questioning by the police every few years, as in the past, or whether he had news of the militant activities of his brothers in the Babbar Khalsa. It made a factual finding that such questioning of itself would be legitimate and not persecutory. It made further factual findings that the appellant could have availed himself of the protection of the authorities if any questioning involved mistreatment of him. This latter finding was based upon the independent country information referred to by the Tribunal and the appellant’s connections with the influential political party Alkali Dal. These considerations and conclusions were clearly an assessment by the Tribunal of the chance that the appellant might be persecuted in the future by the authorities in the Punjab. In those circumstances it is not open on this appeal for it to be concluded that the Tribunal failed to properly consider the appellant’s real chances in the circumstances in respect of persecution in the future in India for reason of his political opinion.

19 It follows that the conditions for the grant of leave cannot be made out. Leave to bring the ground should therefore be refused.

Second ground of appeal

20 The second ground raises the issue of whether the appellant should have been notified in accordance with s 424A of the Act of the independent information upon which the Tribunal proposed to rely.

21 This ground cannot succeed. It is well established that s 424A(3)(a) is applicable to independent information so that it is a recognized exception to s 424A(1): Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572 at 600 [138].

22 The appellant has not given any evidence of what occurred before the Tribunal on this issue nor has he given any particulars of adverse material not put to him for comment. The Tribunal recorded that it discussed the independent country information with the appellant at the hearing.

23 It follows that both as a matter of law and of fact the appellant has not made out this ground of appeal.

Discretionary consideration

24 In any event the grounds of appeal do not allege error in the conclusion of the Federal Magistrate that he would have refused relief even if jurisdictional error had been established because of the discretionary consideration arising from the length of delay in bringing the appeal. That conclusion would therefore remain in place even if the appellant had succeeded on either or both of the grounds addressed above.

Conclusion

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

I certify that the preceding twenty-five (25) 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 Respondents:	D Godwin
Solicitor for the Respondents:	Sparke Helmore
Date of Hearing:	12 February 2007
Date of Judgment:	14 February 2007