SZJNI v Minister for Immigration and Citizenship [2008] FCA 113 (21 February 2008)

Last Updated: 22 February 2008

FEDERAL COURT OF AUSTRALIA

SZJNI v Minister for Immigration and Citizenship [2008] FCA 113

SZJNI v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1987 OF 2007

SACKVILLE J
21 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1987 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	SACKVILLE J
DATE OF ORDER:	21 FEBRUARY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be 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 1987 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	SACKVILLE J
DATE:	21 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal against a judgment of a Federal Magistrate given on 20 September 2007. His Honour dismissed the appellant’s application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 30 August 2006 and handed down on 22 September 2006. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (as the Minister was then known) refusing to grant a protection visa to the appellant.

2 The appellant is an Indian citizen. He is a Sikh and was born in Amritsar in 1970. He arrived in Australia on 28 February 2006 on a Temporary Business Visa, valid for one month. He lodged an application for a protection visa on 24 March 2006.

3 The appellant claimed to have a well-founded fear of persecution in India by reason of his political opinion. The Tribunal summarised his claims as follows:

‘The applicant is a Sikh Indian national from Punjab. In 1986 he joined the Khalistan Commando Force. As he was a teenager at the time, he was a low profile worker. In 1993, after the murder of the Punjab Chief Minister, Beant Singh, the applicant was arrested by the police and tortured for 17 days. In April 1995 he was taken from his home by the police and tortured in a cell for eight days. The police were unable to find any evidence against him and he was released after six days. Thousands of active workers were killed by the police in Punjab state around this time. After his release the applicant kept a low profile. The applicant travelled to a number of places to recruit members and raise funds. He travelled through a number of South East Asian countries [including Cambodia, Malaysia and Thailand]. In April [2005], the applicant campaigned for the emergence of a new party, [the] All India Sikh Student Federation, which was aiming for a separate Sikh state. When he was in Cambodia, the applicant found out that police arrested many leaders and low cadre workers of this movement. So the applicant decided not to return to India as it was not safe for him because of the campaign by the police against the new party.’

4 The Tribunal accepted the appellant’s evidence about the nature and level of his involvement with the Khalistan movement. In particular, it accepted that he had been arrested, detained and tortured on two occasions, in 1993 and 1995. However, his own evidence showed that he had kept a low profile thereafter and had not been involved in any other political activity in India prior to his departure in December 2003.

5 The Tribunal accepted that widespread and serious human rights violations had occurred in the Punjab in 1984 and thereafter. But country information discussed with the appellant at the hearing indicated that the situation had almost returned to normal by 1998 and had continued to improve after that time. Moreover country reports showed that rank and file members of the All India Sikh Student Federation were now safe. The appellant himself was of no interest to the Indian authorities at the time of his departure.

6 The Tribunal found the appellant’s evidence about his claimed activities in Thailand, Malaysia and Cambodia was vague and general. It did not consider plausible the appellant’s claims that he collected money from Sikhs in Thailand and Cambodia for political activities and that he actively campaigned for a separate Sikh state. Accordingly, the Tribunal did not accept that the appellant would be of interest to the Indian authorities by reason of any political activities outside that country.

7 The Tribunal concluded as follows:

‘Even if the Indian authorities had a record that of his past involvement in the Khalistan movement in India there is no country information to support a finding that this would result in him now being of interest to the authorities. The Tribunal does not accept the applicant’s claim that the Punjabi police continue to have an interest in the applicant because he used to be an active supporter of the Khalistan movement, his membership of the AISSF or for any other Convention related reason. The Tribunal finds the applicant’s fears are not well-founded.

The Tribunal is of the view that the chance that the applicant will be persecuted for his political opinion in the reasonably foreseeable future is remote. It follows that the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reason of his political opinion, race or religion (as a Sikh). The applicant has not suggested any other reason he fears persecution and none is suggested on the evidence before the Tribunal. The Tribunal is therefore not satisfied that the applicant has a well-founded fear of persecution for a Convention reason.’

8 The appellant sought judicial review of the Tribunal’s decision by an application filed in the Federal Magistrates Court on 13 October 2006. He filed an amended application on 17 January 2007 which, as the Federal Magistrate noted, largely re-agitated his factual claims. His Honour, however, distilled the following grounds from the amended application:

‘● The amount of the fear and the harm was not measured by the respondents.

● The Refugee Review Tribunal gave the verdict that the case of the applicant does not fall within the refugee law. It is submitted that in the refugee law and in the general laws of the refugee any person who cannot be given protection in any way can be given the protection.

● The RRT did not take into consideration the fact that the applicant was an active member of a political party and is a person of importance as far as the acts of violence against the applicant are concerned.

● The Tribunal did not make findings in relation to these claims, specifically whether the events might occur again and whether the applicant had a well founded fear of persecution on this basis.

● In these circumstances the Tribunal decision involved jurisdictional error.’

9 The appellant, who was unrepresented in the Federal Magistrates Court, did not file any written submissions in support of his application. His oral submissions apparently added nothing of substance to the amended application.

10 The Federal Magistrate pointed out that the Tribunal accepted some of the appellant’s claims but based its conclusions on country information about the current situation in the Punjab. The Tribunal’s credibility findings about the appellant’s activities outside India were open to it. The issues of concern to the Tribunal had been raised with the appellant at the hearing and discussed them with him. He had therefore been given an opportunity to comment.

11 His Honour considered that the appellant was merely ‘cavilling at the Tribunal’s factual findings’. The Tribunal had considered the appellant’s factual claims and had made findings as to the chance of the appellant being persecuted in the foreseeable future by reason of his political opinions. His Honour concluded as follows:

‘In my view the Tribunal considered the applicant’s claim and all aspects of the applicant’s claim, and the finding that it made was supported by the evidence. The applicant’s claims of jurisdictional error have not been made out, and I am not satisfied that any arguable case for jurisdictional error has been made out. I am mindful of the fact that the applicant is not legally represented. My own reading of the Tribunal decision and supporting material does not indicate any jurisdictional error.’

12 The notice of appeal filed by the appellant seems to raise much the same issues as the amended application. It appears that the appellant’s complaints are that:

• the Magistrate failed to determine the harm faced by the appellant;

• the evidence supported his claims; and

• the Tribunal ‘did not appl[y] the proper law and procedure’.

13 The appellant did not file any written submissions in support of the appeal. Nor did he put any oral argument when given the opportunity to do so.

14 For the reasons given by the Federal Magistrate, the Tribunal did address the question it was required to consider. The factual findings it made were open to it and were fatal to the appellant’s claim to have a well-founded fear of persecution in India by reason of his political opinion. The appellant has not raised any issue as to the procedure followed by the Tribunal that could constitute a jurisdictional error on its part.

15 The appeal must be dismissed, with costs.

I certify that the preceding fifteen (15) numbered Paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated: 21 February 2008

	The appellant appeared in person
Solicitor for the Respondent:	DLA Phillips Fox
Date of Hearing:	19 February 2008
Date of Judgment:	21 February 2008