SZFJN v Minister for Immigration & Multicultural Affairs [2006] FCA 300

FEDERAL COURT OF AUSTRALIA

SZFJN v Minister for Immigration & Multicultural Affairs [2006] FCA 300 SZFJN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS and REFUGEE REVIEW TRIBUNAL NSD 2518 of 2005 MADGWICK J 20 MARCH 2006 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2518 of 2005

BETWEEN: SZFJN

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: MADGWICK J

DATE OF ORDER: 20 MARCH 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed with costs assessed in the sum of $4000.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2518 of 2005

BETWEEN: SZFJN

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: MADGWICK J

DATE: 20 MARCH 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT HIS HONOUR: 1 This is an appeal from a judgment of the Federal Magistrates Court given by Federal Magistrate Scarlett on 7 December 2005. His Honour dismissed an application seeking judicial review of a decision adverse to the appellant made by the Refugee Review Tribunal ('the Tribunal') on 18 November 2004 and handed down on 9 December 2004. 2 The appellant's claim was that he was an Indian citizen of Hindu ethnicity and religion, and an active member of the Congress Party, which he claimed upheld the rights and privileges of Hindus. He lived in the State of the Punjab and had received threats to his life from the Akali Dal Party and had been beaten by supporters of the Akali Dal. He feared persecution by adherents of the Akali Dal because of his political opinion. He alleged that a few months before he came to Australia in January 2002, the government of the Punjab had changed and the Akali Dal had come to power. The Akali Dal is a party representing the interests of Sikhs which mainly operates in the Punjab. It seems that in 1997 a coalition formed by the Akali Dal and the Hindu Nationalist Party, known as the BJP, won state elections. However, there were more recent elections in February 2002 which were won by the Congress Party, and a large proportion of the Punjab Sikh population apparently voted for the Congress Party. National elections for the Lok Sabha, India's lower house of Parliament, were held in 1999 and again in 2004. The appellant had claimed to be the 'Organisor Secretary' of the Congress Party for the city of Hoshiapur and furnished purported letters from the local President of the party which indicated that, in 1998 and 1999, the appellant occupied that office in the party. The Tribunal Member rejected the credibility and reliability of the appellant's evidence and was not satisfied: '...on the basis of all of the evidence that the applicant was a high profile member and campaigner for the Congress Party as he has claimed. Indeed, the Tribunal is not satisfied that the applicant was an ordinary member of the Congress Party. ... His evidence was internally inconsistent and contrary to independent country information.' 3 The Tribunal gave reasons for those conclusions. The appellant did not, in answering questions put by the Tribunal Member, display 'the level of knowledge that might be expected from someone who claims to have had such a serious involvement and high profile'. 4 He originally claimed that the Congress Party had been in power in the Punjab when he joined that Party in 1998 but, as indicated above, that is wrong. Later he said that the Akali Dal were in power in 1997 and he was not sure how long they had been in power. He was not aware, so the Tribunal found, that the 1999 elections were national elections and he said that the Lok Sabha election was a State Punjab election. 5 Of the written material, the Tribunal Member said: 'The Tribunal has considered the letter and statements attesting to the applicant's membership and role in the Congress Party and his duties as an organising secretary with the Party in the election period of the Lok Sabha in 1999. However, the Tribunal prefers to rely on the independent country information in coming to its findings. On the basis of all of the evidence before it the Tribunal is not satisfied that the applicant was a member, organising secretary or high profile campaigner for the Congress Party in elections for the Lok Sabha in 1999 or in elections for the Punjab State Legislature in 1997 or 2002. The Tribunal therefore does not accept that the applicant was targeted by members of the opposing Akali Dal Party for reasons of his political activity as an organiser and campaigner for the Congress Party as he has claimed. It therefore does not accept that he was threatened and physically assaulted by a group of unidentified persons who were acting for the Akali Dal Party. It does not accept that he has suffered harm at the hands of members of the Akali Dal Party for reason of his political opinion or any other Convention reason.'