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Federal Court of Australia |
Last Updated: 23 February 2007
FEDERAL COURT OF AUSTRALIA
SZERH v Minister for Immigration and Citizenship [2007] FCA 184
SZERH
v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW
TRIBUNAL
NSD 1522 OF 2006
SIOPIS J
22 FEBRUARY
2007
SYDNEY
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AND:
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THE COURT ORDERS THAT:
1 The name of the first respondent be amended to ‘Minister for Immigration and Citizenship’.
2 The appeal is dismissed.
3 The appellant is to pay the first respondent’s costs.
Note: Settlement
and entry of orders is dealt with in Order 36 of the Federal Court
Rules.
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ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
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BETWEEN:
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SZERH
Appellant |
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AND:
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MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent |
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JUDGE:
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SIOPIS J
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DATE:
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22 FEBRUARY 2007
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PLACE:
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SYDNEY
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REASONS FOR JUDGMENT
1 This is an appeal from a judgment of a Federal Magistrate dated 21 July 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 12 October 2004 and handed down on 2 November 2004. The Tribunal had affirmed a decision of a delegate of the first respondent to refuse the grant of a protection visa to the appellant.
2 The appellant is a citizen of India. Before the Tribunal, the appellant claimed to be a Sikh. The appellant claimed to be a member of the All India Sikh Students Federation (‘AISSF’), and to have been with the Khalistan Commando Force from 1986 to 1990. In his claims, he stated that he had been detained by police and ‘kept in torture cells’ for one week in 1990. The appellant claimed that in April 2004, a leader of the AISSF, Daljit Singh Bittu, who was in prison at the time, called for the establishment of a new political group aimed at a separate Sikh state. The appellant claimed that he had learned of this call by reading a report in the newspaper ‘Ajit’. He claimed to have played a major role in working for the establishment of this new party. The appellant claimed the emergence of this party was not in the interests of the other major parties, and security forces began arresting activists. He said that in April 2004, 270 workers connected with the new party were arrested. The appellant said that he feared, that, because of his role in the promotion of the party, he too would be arrested and so he left India.
The Tribunal
3 In consideration of the appellant’s claims, the Tribunal’s decision relied heavily on independent country information. The Tribunal accepted the appellant was a Sikh and that he may have been involved in activities in support of a separate state for Sikhs between 1984 and 1990. The Tribunal considered that it was not implausible the appellant had been detained in 1990. However, on the basis of the country information, the Tribunal was not satisfied that merely being a member of the AISSF was sufficient to give rise to a well-founded fear of Convention based persecution. Also on the independent evidence, the Tribunal found ‘[s]imply holding a pro-Khalistani opinion would not make an individual a high profile suspect’ and would not give rise to a well-founded fear of persecution.
4 The Tribunal considered the claims regarding police extortion upon the release of the appellant from detention in 1990, and accepted that some police officers engaged in such acts but was satisfied on the independent evidence that corrupt police were punished appropriately. The Tribunal was not satisfied that the extortion was for a Convention reason.
5 The Tribunal turned to the claim regarding the appellant’s role in the emergence of a new political party. The Tribunal said:
‘I asked him how Mr Daljit Singh Bittu had declared the formation of a new party in April this year. [The appellant] responded that he had read it in the newspaper "Ajit", so had joined the party. I asked him for the name of the party and, after some hesitation, he said it was "Khalistan". I asked him what the procedure was for becoming a member of it, and he said he had only wanted to join it. I reminded him that he had said he had actually joined it. He confirmed that he had not done so but that he and others had thought they should form a party.
I told him I found it difficult to understand why the authorities might have allowed Mr Bhittu [sic] access to the media in order to call for the formation of a new separatist party. [The appellant] agreed that the government would not have agreed to this access. He did not know how it had become known publicly. I asked him if he had a copy of the article in which it was revealed, and he said he did not. I put to him that I had been unable to locate any evidence that Mr Bittu had made such an announcement this year. He responded that perhaps the Indian government did not tell other governments about it.’
6 The Tribunal rejected the appellant’s claim that he left India because he feared being arrested as a result of his role in the planned establishment of a political group ‘Khalistan’.
7 The Tribunal cited a number of reasons for rejecting the appellant’s claim. These included the absence of evidence of any contemporaneous newspaper article reporting Mr Bittu’s call for the establishment of such a political group, the unlikelihood of the existence of any such report, the absence of any country information supporting the claim that 270 supporters of the new political group were arrested, the vague evidence that the appellant gave of his role in setting up the group and his inability to explain the grounds which led him to believe that the police knew of his activities. The Tribunal said that in general ‘his account of the events which led to his decision to leave India lacked cogency’.
8 The Tribunal found the appellant’s fear of Convention related persecution in India was not well-founded.
The Federal Magistrate’s decision
9 Before the Federal Magistrate, the appellant by his counsel pressed two of the grounds in the amended application for review of the Tribunal’s decision.
10 There were, in fact, two separate limbs to the first ground. Firstly, the appellant complained that the Tribunal had committed jurisdictional error in finding that the appellant’s claim was not truthful. Secondly, it was said that the Tribunal had misapprehended the appellant’s claim.
11 The Federal Magistrate found that the first of the limbs sought merits review and did not disclose jurisdictional error. As to the second of the limbs, the Federal Magistrate found that the Tribunal understood the appellant’s claims in relation to his motivation to leave India, but had rejected it on credibility grounds.
12 The second ground raised by counsel for the appellant was that the Tribunal had acted unreasonably in the Wednesbury case sense, because the Tribunal had put the onus upon the appellant to produce evidence of the report of the call made by Mr Bittu for the establishment of the new party. The appellant said that he had referred to the ‘Ajit’ newspaper as containing the report he had read, and it was for the Tribunal to make its own inquiries.
13 The Federal Magistrate found it was not unreasonable in the Wednesbury case sense for the Tribunal to ask the appellant if he had a copy of the newspaper article when it was he, the appellant, who first made reference to it. It was not a demand to the appellant to produce evidence. Furthermore, the absence of this evidence was only one of a number of reasons going to the credibility of the appellant. The Federal Magistrate also observed that, in the circumstances of this case, there was no obligation on the Tribunal under s 427(1)(d) of the Migration Act 1958 (Cth) to make its own inquiries.
14 In the course of advancing his submissions before the Federal Magistrate, counsel for the appellant provided the court with written submissions to which copies of a number of press reports were annexed. Counsel for the appellant relied upon these reports as comprising reports showing that the new party had come into existence in April 2004. The Federal Magistrate noted that all of the documents, except one, post-dated the date of the Tribunal’s decision. The one document created prior to the decision, did not deal with any call for the formation of the new party or the claimed arrest of several hundred Sihks in the Punjab. The Federal Magistrate said the documents revealed no error because the Tribunal had focused on the absence of any evidence that in April 2004 a newspaper reported Mr Bittu making the call to start a new party.
The appeal
15 The notice of appeal raised two grounds.
16 The first ground of appeal was that the Federal Magistrate had erred in concluding that the Tribunal had properly apprehended the claim made by the appellant. The Federal Magistrate said that the Tribunal had apprehended the appellant’s claim as that ‘the specific motivation for the appellant leaving India was that when the authorities started arresting pro-Khalistan supporters he also feared being arrested’. The appellant accepted that the Federal Magistrate had properly described his claim, but contended that the finding that the Tribunal had properly apprehended the appellant’s claim, was ‘inconsistent’ with the following extract from the decision of the Tribunal:
‘...I do not consider truthful, and do not accept, that [the appellant] left India because he was being subjected to any serious harm or feared arrest as a result of his political activities. It follows, in the absence of any other claim by him, that the chance is remote that he will be arrested or seriously harmed on return to India for the Convention reason of his political opinion.’
17 I do not accept the appellant’s contention.
18 The Tribunal understood the nature of the appellant’s claim. This is apparent from the following extract of the Tribunal’s reasons:
‘[The appellant] claims to have left India because he feared being arrested earlier in 2004 as a result of his role in the planned establishment of a political group "Khalistan".’
19 The Tribunal then went on to list the grounds referred to at [7] above, upon which it concluded that the appellant’s claim lacked cogency.
20 The extract from the Tribunal’s reasons referred to at [16] above, impugned by the appellant as ‘inconsistent’, does not demonstrate any misapprehension of the appellant’s claim, nor is it inconsistent with a proper apprehension of the appellant’s claim. The extract serves to evidence the Tribunal’s rejection of the correctly apprehended claim. The Tribunal rejected the appellant’s claim on credibility grounds for reasons that were open to it. There was no jurisdictional error on the part of the Tribunal in making the decision that it did. There was no error on the part of the Federal Magistrate in concluding that the Tribunal had properly apprehended the claim of the appellant.
21 Purportedly in support of this ground of appeal, the appellant also made submissions impugning the Federal Magistrate’s failure to interfere with the adverse credibility findings made by the Tribunal. The Federal Magistrate did not err in this regard. It is well recognised that credibility findings are matters for the Tribunal alone.
22
The second ground of appeal is that the Federal Magistrate erred in failing to find that the Tribunal made ‘a serious error by failing to seek country information about the formation of the new political group by Bittu on 14 April 2004’. It was claimed that in failing to make that inquiry, the Tribunal failed to carry out its ‘inquisitorial function’. The appellant also claimed that the Federal Magistrate erred in endorsing the Tribunal’s request that the appellant produce, if he was so able, the newspaper article, which he read in April 2004, reporting the call for the establishment of the new political group.
23 The appellant contended that the Tribunal should have carried out a search of the internet to investigate when the new party was established. The appellant contended that the six media articles before the Federal Magistrate showed that the new political group was in existence in April 2004 and that by failing to carry out the investigation the Tribunal failed to provide the appellant with a lawful review. The Federal Magistrate erred by not accepting these contentions.
24 The appellant attached to his submissions the same six media articles referred to by the Federal Magistrate. These articles were produced to show that there was in existence press reports that Mr Bittu’s political group was established by April 2004.
25 In my view, the Federal Magistrate did not err by failing to accept the appellant’s contentions.
26 The Federal Magistrate was correct in concluding that, in relation to the question of newspaper articles, the focus of the Tribunal’s attention was on the absence of evidence of contemporaneous media reports of Mr Bittu’s call for the new party in April 2004, and not on whether the new party existed in April 2004. The annexed articles do not comprise contemporaneous reports of Mr Bittu’s call for the new party in April 2004.
27 Further, there is no evidence that the Tribunal did not make its own inquiries. To the contrary, it appears from the Tribunal’s reasons referred to at [5] above, that the Tribunal may well have carried out its own inquiries and failed to locate any newspaper article published in April 2004, reporting Mr Bittu’s call for the new party.
28 In Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16, the majority of the Full Court recognised that there may be circumstances when the failure to exercise the inquiry powers may give rise to a jurisdictional error. Lee J (with whom Tamberlin J agreed) said at [75]-[76]:
‘Although it is plain that s 427(1)(d) of the Act provides the Tribunal with a discretion to initiate an investigation and receive a report and does not impose a duty on the Tribunal to do so, it is an empowering provision that is intended to assist the Tribunal to better perform its duties as an inquisitorial body to inquire, to be informed, and to decide.
If the material before the Tribunal and the circumstances are such that the need for further inquiry is obvious, and no impediment to the conduct of such an inquiry is apparent, the failure of the Tribunal to exercise the power and proceeding instead to make a decision adverse to an applicant may point to a conclusion that the Tribunal has denied the applicant the conduct of a fair proceeding. In particular that issue will arise where the Tribunal is prepared to draw adverse inferences from material before it on grounds that are slight and in the absence of the assistance to the hearing process that would be provided to the Tribunal by reasonable use of the powers provided under s 427(1)(d).’
29 However, as the Federal Magistrate found, the articles annexed to the submissions post-date the Tribunal’s reasons, except one, which does not refer to the call for the new party or the arrest of its workers. Thus, even if the Tribunal did not make any inquiry, the existence of these newspaper articles could not comprise a basis upon which to conclude that, in failing to carry out an inquiry, the Tribunal fell into jurisdictional error.
30 Also, the Tribunal did not fall into jurisdictional error by providing the appellant with an opportunity to dispel the doubt that it held, that the appellant had learned of the call by Mr Bittu for the new party, from a newspaper article, by giving the appellant a chance to produce the article. It was within the power of the Tribunal to give the appellant the opportunity to dispel a doubt that the Tribunal held. The Tribunal did not fall into jurisdictional error and the Federal Magistrate did not err in failing so to find.
31 The appeal should be dismissed with costs.
Associate:
Dated: 22 February
2007
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Counsel for the First Respondent:
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Solicitor for the First Respondent:
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Date of Hearing:
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Date of Judgment:
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