SZCDK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1217

FEDERAL COURT OF AUSTRALIA

SZCDK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1217 SZCDK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL NSD 823 OF 2005 STONE J 7 SEPTEMBER 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 823 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZCDK

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: STONE J

DATE OF ORDER: 7 SEPTEMBER 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 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 823 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZCDK

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: STONE J

DATE: 7 SEPTEMBER 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from the judgment of a Federal Magistrate delivered on 10 May 2005 dismissing an application for review of a decision of the Refugee Review Tribunal ('Tribunal') made on 3 November 2003 and handed down on 27 November 2003. The Tribunal affirmed a decision of a delegate of the first respondent to refuse to grant the appellant a protection visa.

Background 2 The appellant, a citizen of India, arrived in Australia on 15 February 1992 on a visa to remain in Australia until 29 February 1992. On 3 October 2002, she lodged an application for a Protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 22 April 2003, the delegate of the first respondent refused the application. 3 The appellant's claims that as a Sikh she would suffer persecution by the Hindu and Muslim activists and by the Sikh Militant Movement on account of her Sikh religious beliefs. 4 In her protection visa application, the appellant claimed that she had been practising her religion since she was a child. After completing ten years of schooling she joined her father, a well-known Sikh religious leader, to assist him with his religious activities. This, according to the appellant, involved travelling from one village to another within the Punjab to 'spread the Sikh religion'. The appellant stated that she and her father were, between 1985 and 1988, 'some of the leaders of the Sikh religion who attended various conferences and mounted campaigns in the Punjab area'. 5 The appellant claimed that her father's activities and her families' general religious beliefs made them a target for Hindus and Muslims. She stated that her family were harassed in mid- and late-1988 on 'several occasions'. In the most serious of these, the appellant claimed that her father was 'assassinated' by Hindu activists because of his involvement in the Sikh religion. She stated that prior to her father's murder the family had received messages from 'these assassins' some of whom were said to be Hindus and other Muslims. Her father was warned to 'quit the religion' because the family was imputed with the religious beliefs of Sikh militants. 6 The appellant claimed in her protection visa application that after her father's murder she continued his religious activities because of her strong faith in the religion. She stated that in early 1989 she survived an 'attempted assassination' and subsequently received a message that she would be killed just as her father was if she continued her religious activities. 7 In addition, the appellant claimed that as a result of her father's death her family had no means of earning a living and consequently she was forced to marry a man, a Sikh religious leader, who she moved in with. While living with her husband and her in-laws, she 'noted that they were members of the Sikh Militant Movement'. After attempting to convince her husband to cease such activities, she claimed that he threatened to kill her. The appellant stated that she then divorced him and ran away in late 1990. 8 The appellant claimed that on her return to her family's home she was threatened by the Sikh Militant Movement and in December 1991 her family's home was attacked and destroyed. She stated that she escaped death because she was not home at the time. 9 The appellant stated that in these circumstances she decided to leave the Punjab as the Sikh Militant Movement was so strong that the authorities could not control them. In support of this the appellant claimed that despite reporting her father's murder to police, as well as all of the threats to her family, the police did nothing as they were 'scared' of the Sikh Militant Movement. The appellant therefore obtained a visa to visit Australia in 1992 and 'fled from India'. 10 In a statement attached to her protection visa application, the appellant stated that since her arrival in Australia in 1992 she had been monitoring the situation at home 'with much interest'. Family and friends advised her that religious conflicts were continuing. The appellant also stated in her visa application that she had been in communication with her mother and sister who had advised her not to return to India because it was not safe for her to do so. The appellant claimed that despite the time that had elapsed since her departure from India, her mother and sister had advised that the Sikh Militant Movement was still interested in her and 'would kill me whenever that they see me, irrespective of the number of years that it takes'. 11 In this statement, the appellant also claimed that relocation within India was unreasonable as she had no skills to utilise to earn a living.