SZEPQ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 133

FEDERAL COURT OF AUSTRALIA

SZEPQ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 133

IMMIGRATION – refugee – protection visa – whether finding of lack of credibility based on erroneous fact amounts to jurisdictional error. Migration Act 1958 (Cth)

SZEPQ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL N2109 of 2005 TAMBERLIN J SYDNEY 10 FEBRUARY 2006

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY 2109 OF 2005

BETWEEN: SZEPQ

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: TAMBERLIN J

DATE OF ORDER: 10 FEBRUARY 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. Appeal allowed. 2. Decision of the Federal Court Magistrate be set aside and the matter remitted to the Refugee Review Tribunal for determination in accordance with law. 3. Costs awarded in favour of the appellant. 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 2109 OF 2005

BETWEEN: SZEPQ

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: TAMBERLIN J

DATE: 10 FEBRUARY 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 In this matter the applicant claimed to be a citizen of India who arrived in Australia on 30 November 2003 and lodged an application for a protection visa with the Department of Immigration. Thereafter, a delegate of the Minister refused to grant a protection visa. On 31 March 2004, the applicant applied to the Refugee Review Tribunal for a review of that decision. The Refugee Review Tribunal affirmed the decision of the delegate not to grant a protection visa. 2 It is apparent from a consideration of the decision of the Tribunal that a central plank of the applicant's case was that his father had extensive involvement in the activities of the Khalistan Liberation Army and this had led to persecution. The applicant based his claim for refugee status on the fact that he would be identified with the Khalistan Liberation Army, although he assured the authorities that he had only preached the Sikh religion and had not taken part in any terrorist activities. The applicant alleged that the Indian police did not trust him, and that he had been taken by them to an unknown destination where he had been tortured. He said that his brothers and uncle bribed the police. 3 The applicant told the Tribunal he later married and went to live with his in-laws, but the police came to know of his whereabouts and again persecuted him. He also stated that he came to Australia as a member of an agricultural delegation and had experienced no trouble leaving India. In addition, the applicant claimed he was the President of the Khalistan Liberation Army in a subdistrict in Jalandhar in the Punjab. He stated he was an ordinary member of the Khalistan Liberation Army prior to 1990, and was its President from 1995 to 1998. The applicant said he feared returning to India because he was blacklisted by the police for being a supporter of the liberation of Khalistan - which I understand is a Sikh movement for an independent state - and a member of the Khalistan movement. 4 Nevertheless, it was put to him by the Tribunal member that the Sikh militant movement was no longer active in the Punjab. The Tribunal pointed out that the applicant had been able to leave India without a problem, and put it to him that if had he been blacklisted, he would not have been able to leave India or obtain a passport. The applicant stated that he had paid money to an agent to convey him to Australia. 5 It was also put to the applicant that India is a parliamentary democracy where people are able to express their political opinion. The applicant stated that if the Tribunal needed more documents, he would require more time to organise their production. It was further put to the applicant that his leader was one of the people who make decisions in India, whereupon he stated that the elections were won when he was imprisoned. 6 The Tribunal had regard to a great deal of country information and a significant proportion of this is listed in the course of the decision. In its findings and reasons, the Tribunal made a strong finding that it did not accept the applicant as a witness of truth. It said his evidence was vague and implausible, and the Tribunal expressed satisfaction that the applicant had tailored his evidence in order to enhance his claim to refugee status. In particular, in coming to this conclusion, the Tribunal member referred to the fact that the applicant had claimed to be President of a local branch of the Khalistan Liberation Army whose leader was Singhmann, a member of parliament. The Tribunal stressed that the applicant claims to be on a police blacklist for his membership of this organisation even though the Khalistan Liberation Army does not appear to be known to independent sources and certain evidence suggests that the Sikh movement is no longer active in the Punjab. The Tribunal also highlighted that the applicant was able to leave India legally with a passport in his own name. 7 It seems to me that the central finding –based on the findings of a lack of credibility and the fraudulent fabrication of evidence to support the applicant's claim- was the firm and clear determination that no such organisation as the Khalistan Liberation Army existed. The Tribunal suggested that if the organization had existed in Khalistan from about 1984, it would have been known to sources such as the US State Department, the Australian Department of Foreign Affairs and Trade, the United Kingdom Home Office and the United Nations High Commission for Refugees. As documented at page 86 of the Appeal Book, the Tribunal member said "I do not accept the organisation does not exist." This is an error, and obviously means that the member did not accept that the organisation existed. For this reason, the Tribunal did not accept the applicant was on a police blacklist because of his membership of the Khalistan Liberation Army. 8 When the matter came for hearing before me, on appeal from the decision of Federal Magistrate Smith, my attention was directed to a communication from the Australian Department of Foreign Affairs and Trade (Document No.:CX2551 of 6 July 1992), which expressly refers to the Khalistan Liberation Army and states that no such organisation is known. Notwithstanding that, in the next paragraph the document states that: