SZISP & Ors v Minister for Immigration and Citizenship [2007] FCA 2029 (20 December 2007)

Last Updated: 21 December 2007

FEDERAL COURT OF AUSTRALIA

SZISP & Ors v Minister for Immigration and Citizenship [2007] FCA 2029

Migration Act 1958 (Cth) s 424A, s 425, s 474, s 476, s 476A

Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195
SZISP & Ors v Minister for Immigration & Anor [2007] FMCA 796

























SZISP, SZISQ, SZKGA v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1020 OF 2007

BUCHANAN J
20 DECEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1020 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZISP, SZISQ, SZKGA Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	20 DECEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed with 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 1020 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZISP, SZISQ, SZKGA Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	BUCHANAN J
DATE:	20 DECEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

1 The present appeals are a clear case of the Federal Magistrates Court of Australia (‘the FMCA’) and this Court being asked to review the merits of a decision of an administrative tribunal, in this case the Refugee Review Tribunal (‘the RRT’) established by the Migration Act 1958 (Cth) (‘the Act’). Reconsideration of the merits of a decision of the RRT is beyond the scope of judicial review (see Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272. It is also outside the limits of the jurisdiction of the FMCA and this Court established by the Act (see ss 474, 476 and 476A).

2 The first appellant claimed to be a citizen of India living permanently in the Philippines. The second and third appellants are his wife and infant child respectively whose claims depend entirely on his. The first two appellants arrived in Australia on 13 October 2005 and applied for protection (Class XA) visas on 22 November 2005. A delegate of the Minister refused to grant them protection visas on 13 December 2005. They sought a review of the delegate’s decision. On 8 March 2006 the RRT affirmed the delegate’s decision but on an application for judicial review that decision of the RRT was, on 11 October 2006, set aside by consent by the FMCA and remitted to the RRT to be determined according to law. Meanwhile the third appellant was born in Australia on 14 March 2006. The decision of the RRT which has enlivened the current process of judicial review was handed down on 18 January 2007. The decision of the FMCA, which rejected the application for judicial review and led to the present appeal, was made on 16 May 2007 (SZISP & Ors v Minister for Immigration & Anor [2007] FMCA 796).

3 The first appellant said he had been ‘on the run’ in India. He claimed to have left India for the Philippines in 1990 with a passport containing false details about his name and age and to have lived in the Philippines since 1990 under the same false details. In the Philippines he was ‘targeted’ by local gangs who sought protection money. In 1997 he was granted a permanent resident visa but still fears that the gangs have found him. He returned to India on a number of occasions.

4 The RRT developed a number of concerns about his claims. After conducting a hearing on 15 December 2006 (which was additional to a hearing earlier conducted by the RRT differently constituted) the first appellant was sent a letter, in accordance with the requirements of s 424A of the Act, which stated a number of matters which might be part of the reason for rejecting his claims. Certain passages were emphasised by appearing in bold type. The emphasised matters, which are sufficiently explanatory of the issues in question, are as follows:

‘• Subject to any comments you may have, as the passport issued to you in Manila on 31 August 1998 is in your real name (...b.. .....), it appears that this was also the name you used in your first passport and you may not have in fact falsified your name to ...v.. ..... to leave India and avoid detection in 1990 as you have claimed as recently as 23 November 2006; and

• As you claim you have returned to India using this passport issued to you in your correct name of ...b.. ..... on three separate occasions without claiming you have had any difficulties whatsoever in entering or leaving India, your claim that you have falsified your name for the purpose of avoiding detection in India is untrue;

• this may also indicate that as you used your real name (...b.. .....) to enter and leave India on some six occasions since 1998 that you are of no interest to the Indian police or other authorities in India because you are Sikh, because of any previous difficulties you may have had in India, because of your past or present association with your cousin, or for any other Convention related reason;

• This may also go to the matter of your credibility.

...

• Subject to any comments you may make, as you were legally issued with an Indian passport in your actual name and other details including your photograph (albeit with the incorrect year of birth) and showing your parents names in 1990, and a new duplicate or replacement passport was then issued to you in Manila on 31 August 1998 when you lost it and you were then able to enter/leave India on this passport on six occasions from 1999 until 2005, this may indicate that the Indian police and other Indian authorities are not looking for you and that you are of no interest to the authorities in India for any reason whatsoever;

• this may also indicate that whatever the nature of your experiences in India including in 1984, any subjective fear of harm you may have about returning to India is not well founded.

...

• As you did not seek asylum or refugee status in another country including the Philippines, Hong Kong, or Singapore, or in a foreign mission in one of these countries or with UNHCR, nor did you take the opportunity of being outside India to go to another country where you could have sought international protection, subject to any comments you may make, this may indicate that you do not have a well-founded fear of serious harm amounting to persecution for a Convention reason in India from the police or other authorities in India or that you feared you would be arrested, beaten, tortured or killed by them;

• Moreover, and as you were willing to not only return to India but also return to the Punjab to within 50 km of your family home on three separate occasions, and remain there for a number of months (about four months in 1999, more than a month in 2000, and almost 31/2 months in 2005), subject to any comments you may make, this may indicate that you do not have a well-founded fear of serious harm amounting to persecution for a Convention reason in India or that you feared you would be arrested, beaten, tortured or killed by the police or other authorities in India;

...

• Subject to any comments you may make, this independent country information may indicate that:

• as the situation in the Punjab has now returned to normal, whatever your previous experiences and the activities of you and your cousin in 1984, you would not now be harassed, detained, beaten or tortured by the police in India because you are Sikh or they suspect that during the 1980s, now some 22 years ago, you and your cousin may have been associated with the Sikh separatist movement;

• there is not a real chance that you would be subject to serious harm amounting to persecution for a Convention reason on this basis if you returned to India, now or in the reasonably foreseeable future;

• further, if for any reason you did not wish to return to your home village, this country information may indicate that you would be able to return and live elsewhere in India in safety and without your being at risk of serious harm from the police or other authorities in India.’

5 The RRT decision records that the first appellant did not reply to this letter. It recorded its conclusions in the following terms:

‘Accordingly, and given all the above, the Tribunal does not accept that the Applicant has changed his name from ...b.. ..... or that he left India illegally but rather is satisfied that he left India for the Philippines legally using his own passport issued in his own name without any difficulty whatsoever. It also accepts that he continued to use an Indian passport legally issued to him in his actual name and was able to leave and enter India on some six subsequent occasions since 1998, again without any difficulty. It follows that the Tribunal is satisfied that the Applicant is of no interest whatsoever to the Indian police or other authorities in India because he is a Sikh or for any other Convention related reason such as his and his cousins activities in 1984, and the Tribunal does not accept these claims. It follows that the Tribunal is also satisfied that he has lied about these matters to the Tribunal and is not a credible witness. Moreover, the Tribunal accepts the independent country information put to the Applicant in its letter of 15 December 2006 and that as he was legally issued with an Indian passport in his name and with his other details including his photograph (albeit with the incorrect year of birth) and showing his parents names in 1990, and a new duplicate or replacement passport was then issued to him in Manila on 31 August 1998 when he lost it and he was then able to enter/leave India on this passport on six occasions from 1999 until 2005, the Tribunal is again satisfied that the police and other Indian authorities are not looking for him and that he is of no interest to them for any reason whatsoever.

Further, the Tribunal is satisfied that whatever the nature of his experiences in India including the claimed difficulty and abuse he claims he experienced in 1984, any subjective fear of harm he may have about returning to India is not well founded of serious harm amounting to persecution for a Convention reason as he chose on three separate occasions since 1998 to return to India from the Philippines and remained there for a total of some eight months. Further, and as was again put the Applicant in its letter of 15 December 2006, the Tribunal accepts that the Applicant did not at any stage seek asylum or refugee status in another country including the Philippines, Hong Kong, or Singapore, or in a foreign mission in one of these countries or with UNHCR, nor did he take the opportunity of being outside India to go to another country where he could have sought international protection, and again finds that he does not have a well-founded fear of serious harm amounting to persecution for a Convention reason in India from the police or other authorities in India or that he fears he would be arrested, beaten, tortured or killed by them. Indeed, the Tribunal is further satisfied that as he was not only willing to return to India on three occasions since 1998 but also was a [sic] willing on each of these occasions to return to and remain in the Punjab within 50 km of his family home, and remain there for a number of months (about four months in 1999, more than a month in 2000, and almost 31/2 months in 2005), that he does not have a well-founded fear of serious harm amounting to persecution for a Convention reason in India

This finding is further supported by extensive independent country information put [sic] the Applicant in its letter of 15 December 200[6] that the situation in the Punjab has now returned to normal, and the Tribunal is satisfied that whatever his previous experiences and the activities he and his cousin were evolved [sic] in in 1980’s, it is satisfied would not be harassed, detained, beaten or tortured by the police in India because he is a Sikh or the authorities suspect that during the 1980’s, now some 22 years ago, he and his cousin may have been associated with the Sikh separatist movement. In short, the Tribunal further accepts this independent country information over the claims made by the Applicant and is satisfied that there is not a real chance that he would be subject to serious harm amounting to persecution for a Convention reason on this or any other basis if he returns to India, now or in the reasonably foreseeable future, and finds that he is not a refugee.

Given all the above, and as the Tribunal is satisfied that the Applicant does not have a well founded fear of serious harm amounting to persecution for a Convention reason in India and finds that he and his family can therefore return and live in India in safety, it follows it is not necessary for the Tribunal to consider whether or not the Applicant has a well founded fear of serious harm amounting to persecution for [a] Convention reason in regard to the Philippines where he is now also a permanent resident (including because it [is] impossible for him and his family to live in the Philippines without a fear of persecution as he is wanted by criminal gangs who were operating freely throughout the Philippines and escape the police and justice system).’

6 These conclusions involve an assessment of the merits of the first appellant’s claims. The assessment was made on the basis of the material available to the RRT.

7 The application for judicial review which was made to the FMCA suggested that the RRT had failed to afford an opportunity to comment on two specific matters referred to in the RRT decision. The passages challenged read as follows:

‘... And while he claims he was arrested by the police and abused in 1984 along with his cousin, the applicant provides no evidence to support his claim such as a copy of an arrest warrant, detention order, or a medical certificate obtained either in Australia or India. ..."

and:

"... The Tribunal does not accept that the Applicant had a political profile in India or was an activist in early 1980s ... ."

8 The Federal Magistrate correctly, in my view, rejected the suggestion that either of these passages indicated a breach of the requirements of s 424A. In respect of the first passage that was because an observation that a claim was relevantly unsupported does not attract such an obligation (see NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195). As to the second matter the conclusion was based upon information provided by the first appellant himself at both of the first and second RRT hearings.

9 Having rejected the grounds of the application advanced the Federal Magistrate said (at [28]):

‘On judicial review, there is no space to challenge factual findings of the Tribunal, and this claim, if it is anything, appears to be no more than a claim for merits review. I am satisfied that no jurisdictional error has been made out, I am mindful of the fact that the Applicant is not legally represented in these proceedings, my reading of the Tribunal decision, independently of the Applicant’s submissions for the First Respondent do not show any arguable case for jurisdictional error. I am satisfied that no jurisdictional error has been made out, the decision is a primitive [sic] clause decision as defined in s.474 of the Migration Act, and consequently no orders in the nature of certiorari or mandamus are available. The application will be dismissed.’

10 There are three grounds of appeal in this Court. At the hearing of the appeal the first appellant was present and had the assistance of an interpreter. He chose to make no submissions about his appeal. The first two grounds of appeal repeat the grounds which were rejected by the Federal Magistrate. In my view they have no substance and I reject them also.

11 The third ground is as follows:

‘3. His Honour should have found that the Tribunal drew inference that the documents submitted are fabricated thus breaching section 424A / 425 of the Migration Act.

Particulars

The Tribunal inferred did not accept the appellant’s documents as authentic thus equating to fabrication. The Tribunal has not given the appellant an opportunity in the section 424A letter to deal with the claim raised by the Appellant or at the hearing pursuant to section 425 of the Act.’

12 This ground of appeal is not easy to relate to the RRT decision. The RRT, as is clear from the extracts I set out earlier from the letter it sent to the first appellant on 15 December 2006, had concerns about the claim that the appellant had earlier used a passport in a false name. It concluded, ultimately, that this had not occurred. But the RRT decision does not appear to reject, as not being authentic, documents which were submitted to it. The general claim which is also made in this ground that the first appellant did not have an opportunity under s 424A to deal with his own claims or under s 425 to have a hearing of his claims is clearly unsustainable.
No error has been demonstrated in the decision of the FMCA under appeal. Furthermore, no jurisdictional error has been shown in or appears from the decision of the RRT. The appeal will be dismissed. It is appropriate to dismiss it with costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:

Dated: 20 December 2007

The Appellants:	The first appellant was self represented. There was no appearance for the other appellants
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	23 November 2007
Date of Judgment:	20 December 2007