SZFXJ v Minister for Immigration and Citizenship [2007] FCA 187 (23 February 2007)

Last Updated: 23 February 2007

FEDERAL COURT OF AUSTRALIA

SZFXJ v Minister for Immigration and Citizenship [2007] FCA 187

SZFXJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1704 OF 2006

SIOPIS J
23 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1704 OF 2006

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

JUDGE:	SIOPIS J
DATE OF ORDER:	23 FEBRUARY 2007
WHERE MADE:	SYDNEY

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.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1704 OF 2006

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

JUDGE:	SIOPIS J
DATE:	23 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal against a judgment of a Federal Magistrate of 28 August 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) dated 4 February 2005 and handed down on 25 February 2005. The Tribunal had affirmed a decision of a delegate of the first respondent to refuse to grant a protection visa to the appellant.

2 The appellant is a citizen of India who arrived in Australia on 24 February 2004. On 7 April 2004 the appellant lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs. A delegate of the first respondent refused the application for a protection visa on 14 September 2004.

3 On 8 October 2004 the appellant applied to the Tribunal for a review of that decision. The appellant attended a hearing on 24 January 2005 and was assisted by a Punjabi interpreter. The appellant provided the Tribunal with a copy of a decision of the United States Court of Appeals for the Ninth Circuit regarding the appellant’s father’s application for asylum in the United States of America. The decision stated that the appellant’s father’s application for asylum was to be referred back to the Board of Immigration Appeals for further consideration because there had been errors in credibility findings made at first instance.

4 Before the Tribunal the appellant claimed to have a well-founded fear of persecution because of his ‘political circumstances’ in India. The appellant and his father are both Hindu. The appellant asserted his father, who was a teacher in a government school, had tutored privately after school hours, a student, who was believed to be linked to a Sikh terrorist group. As a result, his father was taken for questioning at the police station in 1992, along with other people connected to the student. His father ceased tutoring the student in 1991 or 1992, and told the student to go away, but, said the appellant, the student continued to visit his father. His father was taken in for further questioning on ‘many’ occasions until 1996. In 1996 the police came to the appellant’s family home and took the appellant’s father for questioning. The police also took the appellant for questioning but released him the next day. His father escaped from custody with the assistance of a policeman, and his whereabouts were unknown for many years. The appellant could not remember the date in 1996 his father was taken into custody. The appellant claimed that his father taught that persons should ‘fight for their rights’, but he was a person who believed that people should be peaceful. He was not politically active.

5 The appellant claimed that his mother had known of his father’s whereabouts, but she had not told him of his father’s whereabouts until approximately November 2004. It was, said the appellant, a secret between his father and his mother. The appellant said that he left in February 2002 to stay with his uncle in the Philippines, who had a business lending money. The appellant intended to remain in the Philippines. However the appellant claims his uncle was attacked in the Philippines and they returned to India despite fears the appellant would be attacked in India. The appellant claimed he suffered in India as a result of his father’s political beliefs and in the Philippines because of his race and religion, referring to the corruption in both of these countries, which meant that little could be expected in relation to rights unless one had power and influence.

6 The appellant provided documents to the Tribunal including medical reports in relation to the assault of his uncle in the Philippines, and a missing person notice said to have been published in respect of his father which recorded that his father went missing on 27 August 1996.

The decision of the Tribunal

7 The Tribunal found that the father of the appellant was a teacher with no political profile and accepted that he may have provided tuition to a suspected terrorist and been questioned by police once in 1992 about this association. The Tribunal did not accept that, after his father stopped tutoring the student, the student continued to visit and stayed at their home. Nor was it accepted that the police would continue to believe that the father was associated with the student when the father stopped tutoring the student. It was not accepted that the appellant’s father was questioned repeatedly over a number of years. Further, the Tribunal did not accept that the appellant’s father, a Hindu teacher, at a government school, with 20-25 years of experience, would have been implicated in the activities of a Sikh terrorist group and the actions of one of his many students.

8 It followed, that the Tribunal did not accept that the appellant’s father was detained in 1996, or went missing after escaping detention. Similarly, the Tribunal did not accept the claims that the appellant did not know the whereabouts of his father until November 2004. The Tribunal also did not accept that the appellant’s father had been granted asylum in the United States of America, saying that the decision provided, only referred his father’s case back for rehearing.

9 No weight was placed on the missing person notice that was provided to demonstrate the father went missing. The Tribunal noted that the appellant was inconsistent in the dates provided for the event. Based on these findings the Tribunal did not accept that the appellant and his family were harassed by police or subject to extortion (as claimed at hearing) or that his family, including his grandfather, were the subject of ongoing harassment by the police.

10 The Tribunal did not accept that the appellant was taken for questioning as it was inconceivable that he would have been taken for questioning nearly five years after his father ceased tutoring the student. This, taken together with the fact the appellant was unable to remember the date on which he was taken for questioning, meant that the Tribunal did not accept the veracity of the appellant’s claim.

11 Although the Tribunal accepted that the appellant went to the Philippines to stay with his uncle, it did not accept that this was linked to any circumstances relating to his father. The appellant’s return to India to care for his mother was taken to demonstrate that he did not have a well-founded fear of persecution at the time. Further, the Tribunal found that, although the appellant may have received threatening telephone calls and demands when he returned to India, this was because people had learned of his employment as a financier in Manila, and, therefore, believed that he had money.

12 These threats, according to the Tribunal, could be characterised as declarations of intent and on their own did not constitute serious harm within s 91R(1)(b) of the Migration Act 1958 (Cth). The reason the appellant was receiving the threats was, therefore, not Convention related.

13 The Tribunal found that the appellant had demonstrated a capacity to establish himself in a place where he does not have family support. It found that if the appellant continued to have a subjective fear in relation to the Punjab, it would be reasonable for him to relocate to Delhi. This finding was based on his claim to have visited Delhi in the past, when he was in India, and on the fact that he was educated, had various employment experience and is bilingual.

The decision of the Federal Magistrate

14 On 29 June 2005, the appellant filed an amended application for judicial review of the decision of the Tribunal.

15 Before the Federal Magistrate, the appellant handed up a document which the Federal Magistrate said ‘purports to be a decision of the United States Immigration Court’ granting his father political asylum.

16 The Federal Magistrate found that the Tribunal considered the claims of the appellant and provided logical reasons based upon available evidence. The Federal Magistrate found that it was open to the Tribunal to make the credibility findings that it did.

17

As to the question of the decision of the United States authorities to grant his father asylum, the Federal Magistrate said:

‘Even though the applicant has now shown me what purports to be a decision of the United States Immigration Court that his father’s application for refugee status was granted, this avails him not. I have no details of what his father told the United States courts and none was provided to the Tribunal. In any event, the Tribunal’s duty is to listen to and assess the claims of this individual and not his father.’

18 The Federal Magistrate went on to say:

‘The applicant claims that the Tribunal made a jurisdictional error by not affording sufficient weight to his evidence. The Tribunal’s duty is to assess the evidence and decide whether it amounts to a sufficient case to satisfy it that the applicant has the well-founded fear of persecution that he claims to have. It is for the Tribunal alone to make the decision whether or not the applicant’s evidence is satisfactory and to make a decision as to what is likely and what is not likely to result from the story provided by the applicant.

This Tribunal thought it inherently unlikely that the applicant would suffer from any further problems as a result of what is now a very old association with a person who the applicant says was considered to be a terrorist but in respect of whom no corroborative evidence has been provided. The Tribunal is also entitled to take a view of the applicant’s credibility which it did in this case based upon the applicant’s own statements. For this court to interfere in the Tribunal’s findings in that regard would be to provide the applicant with impermissible merits relief.’

The appeal

19 The notice of appeal referred to two grounds of appeal. In summary, the grounds were to the following effect:

1 The Federal Magistrate erred in failing to find the Tribunal made a jurisdictional error when it misapplied the express and implied meaning of the terms ‘well founded fear’ and ‘refugee’ in relation to the appellant’s fear of persecution by the police and the authorities;
2 The Federal Magistrate erred in failing to find that the Tribunal did not give sufficient weight to the evidence given by the appellant at the hearing.

20 The appellant’s complaints emerged more specifically from particulars contained in the notice of appeal and in the submissions made by the appellant.

21 The particulars in support of the first ground of appeal challenge the finding of the Tribunal that the appellant’s father did not have a political profile, or a profile as a human rights defender. The appellant said that each of the Tribunal and the Federal Magistrate had ignored the documents from the United States courts which evidenced his father’s successful claim for refugee status in the United States. The appellant submitted that the documents showed, contrary to the Tribunal’s finding, that his father did have a high political profile and, because of this, had been granted refugee status in the United States.

22 The appellant submitted further that his position in relation to having a well-founded fear of persecution was no different to that of his father, because it was based on his father’s political profile and the hostility of the police towards his family because of his father’s political profile. He submitted that, as the United States’ authorities had determined that his father qualified as a refugee on the grounds of his fear of persecution based upon his political profile, then he should be in no different position.

23 In my view, the Federal Magistrate did not err in failing to find error by the Tribunal in the way it assessed the evidence comprising the reasons for decision of the United States Court of Appeals, in the course of considering the appellant’s claim for refugee status. The Tribunal was required to make its own assessment of the appellant’s claim on the basis of the evidence that was before it. The decision was one piece of evidence which the Tribunal had to weigh in the balance. The document before the Tribunal did not evidence the granting of asylum to the father by the United States authorities. Further, as the Federal Magistrate said, the reasons of decision by the United States Court of Appeals did not state the factual account which was given by the father as the foundation for his claim for refugee status in the United States of America. The same is true in respect of the document which the appellant handed up to the Federal Magistrate. The Federal Magistrate did not err in concluding that the United States Court of Appeals decision, and the document handed to the Federal Magistrate, did not avail the appellant in his claim.

24 Further, insofar as this ground may be construed as otherwise impugning the Federal Magistrate’s finding that the Tribunal addressed the right questions and did not fall into jurisdictional error in assessing the appellant’s claims, I would reject that contention. The Tribunal assessed the appellant’s claims and rejected the claims on credibility grounds. This was open to the Tribunal.

25 The particulars of the second ground of appeal show that the appellant’s contention is, in essence, that the Federal Magistrate should have found that the Tribunal fell into jurisdictional error because it ‘discarded’ the appellant’s oral evidence, and did not rely upon the documents he provided. Before me the appellant contended that the documentary evidence he provided in respect of his father was ignored and his oral evidence should not have been rejected.

26 As to the documentary evidence, it is not correct to say that the documentary evidence as to his father was ignored. As to the missing person notice in regard to the appellant’s father, the Tribunal considered the notice but gave no weight to it. This was because of the inconsistency in the evidence as to when it was said his father had gone missing, and because the Tribunal rejected the appellant’s evidence that his father had been in custody and gone missing, on credibility grounds. This course was open to the Tribunal (WAKK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 225). Further, as already mentioned, the Tribunal did not fall into jurisdictional error in giving no weight to the evidence of the United States Court of Appeals decision because it did not demonstrate the factual grounds on which the father made his claim for asylum, it did not demonstrate that the father had been granted asylum, and because the appellant’s case had to be assessed on its own merits.

27 Insofar as the appellant complained that the Tribunal should not have rejected his oral evidence, the Federal Magistrate was correct in determining that the complaints to like effect made before him amounted to an impermissible attack on merits of the Tribunal’s decision and did not disclose jurisdictional error.

28 The appeal is dismissed with costs.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:

Dated: 23 February 2007

	The appellant appeared in person.
Counsel for the First Respondent:	Mr T Reilly
Solicitor for the First Respondent:	Blake Dawson Waldron
Date of Hearing:	14 February 2007
Date of Judgment:	23 February 2007