SZIGZ v Minister for Immigration and Citizenship [2007] FCA 153 (21 February 2007)

Last Updated: 21 February 2007

FEDERAL COURT OF AUSTRALIA

SZIGZ v Minister for Immigration and Citizenship [2007] FCA 153

Migration Act 1958 (Cth) ss 91R, 91R(1)(b), 415






















SZIGZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 1794 OF 2006

NICHOLSON J
21 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1794 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	NICHOLSON J
DATE OF ORDER:	21 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 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 1794 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	NICHOLSON J
DATE:	21 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal against a decision of a Federal Magistrate (Smith FM) made on 28 August 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 23 December 2005 and handed down on 12 January 2006. The Tribunal had affirmed a decision of a delegate of the first respondent to refuse to grant a protection visa to the appellant.

The appellant’s claims

2 The appellant was found to be a citizen of India who arrived in Australia on 23 June 2005. On 20 July 2005 the appellant lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural Affairs (as it then was). A delegate of the first respondent refused the application for a protection visa on 1 September 2005. On 26 September 2005 the appellant applied to the Tribunal for a review of that decision providing the decision of the delegate with his application. The Tribunal invited the applicant to a hearing. The appellant attended and was assisted by a Punjabi interpreter.

3 Before the Tribunal the appellant claimed to have a well founded fear of persecution by Muslim militants because of his role as a police informer against them and because of his Sikh religion. He claimed that he informed police of activities of Muslim militants in the town of Jammu, asserting that the militants had seen him on the phone and concluded he was a police informer. The appellant claimed that two of the militants who had seen him on the phone had been killed in an encounter with the police although two had escaped. He claimed that these latter two militants attacked him, causing injuries requiring hospitalisation. The appellant claimed that he lodged a report with the police to no avail and was later attacked by the militants again. He also claimed he left Punjab for Sonipat to work with his brother-in-law yet was attacked again and subsequently decided to leave India.

Tribunal’s reasons

4 The Tribunal found that the appellant’s claims about acting as a police informant lacked credibility and were implausible, in particular because of the timing of the alleged attacks being substantially after the appellant acted as an informant. Similarly based on the appellant’s evidence of the timing of the events, the Tribunal did not accept that the appellant provided information against the militants or that he was targeted for harm in Jammu or Punjab or Sonipat.

5 The appellant presented evidence to the Tribunal about how he travelled to Australia on 10 June 2005 as an incentive for his performance at work and in order to explore business opportunities, returned to Sonipat and then departed again for Australia on 23 June 2005. This journey suggested to the Tribunal that he did not fear harm in Sonipat and allowed them to conclude that the appellant returned to Australia the second time because he preferred life here not, because he was fleeing harm. The Tribunal asserted that the appellant fabricated his claims to remain in Australia.

6 No evidence was presented in relation to the claim that the appellant fears persecution from Muslims because he is a Sikh. The Tribunal considered independent country evidence and found that it did not support the claim that being a Sikh in India gives rise to a well-founded fear of persecution.

Federal Magistrate’s reasons

7 The first ground before the Federal Magistrate was that the Tribunal failed to carry out the review in a constructive and articulate manner as the claims of the appellant were misunderstood which, the appellant asserted, was a breach of s 415 of the Migration Act 1958 (Cth) (the Act). That was a challenge to the Tribunals’ conclusion:

‘At the conclusion of the hearing the applicant claimed that he fears that he will be harmed by Muslims because of his Sikh religion. He did not, however provide evidence of harm suffered in India for that reason. As the Tribunal observed at the hearing not all Sikhs are persecuted by Muslims in India. Furthermore, the independent evidence before the Tribunal does not support a conclusion that being a Sikh in India currently gives rise to a well-founded fear of persecution for a Convention reason.’

8 The appellant argued that he had implicitly brought evidence of harm suffered in India for reason of his Sikh religion when claiming that he was motivated to become a police informer by a feeling of Indian nationalism as a Sikh. Additionally, when asked whether there were other reasons to fear harm, he had replied that Muslim extremists had been partly motivated to inflict harm on him because of his Sikh religion or ethnicity. It was contended that the Tribunal had failed to take this evidence into account. The Federal Magistrate found that no jurisdictional error was made out under this ground because:

‘23. It is necessary to read the Tribunal's conclusion concerning the applicant's situation as a Sikh in India in the context of its earlier findings. In particular, in the context of the preceding paragraph, which contained the Tribunal's conclusion that "the applicant has fabricated the claims relating to the so-called suspected Muslim terrorists in Jammu". The Tribunal at that point plainly addressed, and rejected, the applicant's claims that his Sikh religion or ethnicity was in part a reason for the harms that he claimed to have encountered in India.
24. As I read its next paragraph, concerning the applicant’s fear of harm by Muslims because of his Sikh religion, the Tribunal was doing no more than addressing his general situation in India as a Sikh person who had not established any harm which the Tribunal was prepared to accept as true.’

9 The second ground was that the Tribunal acted unreasonably towards the appellant when dealing with his claims because of its failure to understand the criteria of the Convention Relating to the Status of Refugees, 1951 and the Protocol Relating to the Status of Refugees, 1967 (jointly, the Convention); taken as claiming that the conclusion of the Tribunal concerning Sikh’s not being persecuted was not reasonably open to it, was not based on rational grounds and was made in bad faith. This was directed to the Tribunal’s conclusion:

‘There is no plausible evidence before it that the applicant has suffered persecution in his country because of his political opinion, his religion or for any other Convention reason.’

10 The Federal Magistrate, however, found there to be nothing irrational in the reasoning of the Tribunal. He said:

‘...the Tribunal was in a difficult situation where no corroboration whatsoever had been presented to it. It was required to form a view as to the credibility of a bare narrative presented to the Tribunal by the applicant. The evidence before the Tribunal, in my opinion, did allow it to draw adverse inference from the aspects of the applicant’s narrative which the Tribunal relied upon in support of its conclusion of implausibility.’

11 Concerning the claim of bad faith the Federal Magistrate stated:

‘32. The ground as pleaded also makes an implication of bad faith on the part of the Tribunal. This implication was made more clearly in Mr Jayawardena's written submission, which said:

The Applicant submits that the manner in which the Tribunal made those findings gives him a definite view that the Tribunal either wilfully ignored giving due weightage to the applicant's claims or mixed up the issues purposely.

33. This is a contention that the Tribunal has purported to exercise its powers of review with bad faith. Such an allegation is not to be made lightly, since it contends an actual state of mind on the part of the Tribunal (see NAKF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 730; (2003) 130 FCR 210 at 218 to 219). In the present case, this contention was made without any proper foundation. The Tribunal, in my opinion, showed in its reasons that it endeavoured conscientiously to assess the truth of the uncorroborated claims presented by the applicant. I reject all suggestions of bias or bad faith.’

12 The third ground was that by virtue of errors in grounds one and two the Tribunal failed to uphold ‘jurisdictional commitment’ envisioned by s 91R of the Act on whether the applicant would be a possibility of a ‘real chance’ of facing ‘serous harm’ if he was asked to return to India. The Federal Magistrate had difficulty understanding the appellant’s ground, asserting that it was not clarified in the appellant’s submissions. However, his Honour discerned that the appellant contended the Tribunal failed to consider whether his account might be true. Considering current authorities, the Federal Magistrate did not consider this ground to be made out. The Tribunal was only obliged to assess whether adverse findings were in doubt if it were left in some doubt. In this instance the Tribunal was not left in any doubt that the appellant had invented his story and it was therefore not obliged to assess whether it was wrong. Further, the Federal Magistrate did not consider the Tribunal to have made any error with regard to s 91R(1)(b) of the Act.

Grounds of appeal

13 The notice of appeal raises the following grounds:

1. The Federal Magistrate failed to carry out his review in a constructive and articulate manner because his findings that the appellant did not provide evidence of the harm suffered in India by Muslims because of his Sikh religion contradicted the evidence presented by the appellant at the hearing that Muslims in India sought to harm him because he was a police informer and some of their people were killed as a result of the actions of the appellant.
2. The Federal Magistrate acted unfairly and unreasonably towards the appellant because he failed to understand the criteria in Art 1(A)(2) of the UN Convention when he concluded there was no evidence before him that the appellant had suffered persecution by reason of his political opinion, religion or for any other Convention reason.

14 It will immediately be discernable that the above two grounds are a re-run of grounds one and two before the Federal Magistrate. I have for that reason set out his reasoning on these grounds above more extensively than may otherwise have been required.

15 On the hearing of the appeal the appellant reiterated his claim that he had been injured and that he was lucky to survive. This was a reargument concerning the merits which lie in the exclusive province of the Tribunal. It cannot provide any support to his grounds of appeal.

16 I have examined the reasoning of the Federal Magistrate on the two grounds again in issue and the reasons of the Tribunal. I cannot find an error of law in the former or evidence of an overlooked or undetected jurisdictional error in the reasoning of the Tribunal.

17 It follows that, for the reasons given by his Honour the Federal Magistrate, neither of the grounds relied upon in the appeal can be made out.

Conclusion

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

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholson.

Associate:

Dated: 21 February 2007

The Appellant represented himself
Solicitor for the First Respondent:	A Cox
Solicitors for the First Respondent:	DLA Phillips Fox
Date of Hearing:	19 February 2007
Date of Judgment:	21 February 2007