SZEPV v Minister for Immigration and Multicultural Affairs [2006] FCA 673

FEDERAL COURT OF AUSTRALIA

SZEPV v Minister for Immigration and Multicultural Affairs [2006] FCA 673 SZEPV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS & REFUGEE REVIEW TRIBUNAL NSD 284 OF 2006 COLLIER J 24 MAY 2006 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY NSD 284 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZEPV

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: COLLIER J

DATE OF ORDER: 24 MAY 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal is allowed.

2. A writ of certiorari be directed to quash the decision made by the learned Federal Magistrate on 27 January 2006.

3. A writ of prohibition be directed to the respondent preventing him from giving effect to or acting upon the decision made to refuse the protection visa to the Appellant.

4. An order that a writ of mandamus be issued to the Tribunal compelling it to rehear and re-determine the appellant's application for review in terms of the criteria laid down in the article 1(A)(2) of the 1951 United Nations Convention on Refugees.

5. First respondent to pay costs 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

QUEENSLAND DISTRICT REGISTRY NSD 284 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZEPV

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: COLLIER J

DATE: 24 MAY 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal against a judgment of Lloyd-Jones FM of 27 January 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") dated 15 August 2001. The Tribunal affirmed a decision of a delegate of the Minister to refuse to grant a protection visa to the appellant. 2 The appellant is a citizen of India and, in his application for a protection visa, claims to come from a Sikh family and to have become interested in his religion. He claims he joined the Youth Akali Dal, an organisation run by Khalistani Sikhs. He claims to have been involved in spreading the religious and political message of the Khalistan Liberation Force and the Khalistan Commando Force and to have attended many organisations, Ghadwaras and religious meetings. The appellant claimed that Hindu "fascist" groups such as Shiv Sena and Bajrang Dal were opposed to the Sikh community and tried to destroy Sikh programs both by force and using government controlled media. 3 He also claimed that Sikh militants who were wanted by the police came to his local area to seek shelter, and as a result, the police began harassing the appellant and his family. He claims that he worked as a truck driver in various states in India and on one occasion the police arrested him without a warrant, detained him for 10 days and tortured him mentally and physically. The appellant says that since he has been in Australia, he has been working with the International Sikh Youth Federation. The appellant claims that if he returned to India, the Indian Government, along with Shiv Sena, Bajrang Dal and the army and police forces, will kill him. 4 In his written submission to the Tribunal, the appellant said that he disagreed with the delegate's decision and said that he had not been invited to an interview. He then made general claims about the "war" being waged by Hindu organisations (including the government) on religious minorities such as Sikhs, Muslims and Christians. 5 At the hearing before the Tribunal, the appellant said that prior to leaving India he lived in Himachal Pradesh for five years and before that he lived in Punjab. The appellant explained that he moved from Punjab when the police began harassing him because he gave shelter to terrorists and assisted them by transporting them across the border in his truck, including on one occasion when a terrorist was killed by police. The appellant told the Tribunal he did "home farming" until 1987. In between 1987 and 1995 he did both agriculture and truck driving and from 1995 he was a truck driver. The Tribunal pointed out during the hearing that the appellant had not mentioned transporting terrorists in his "written submission". The appellant claimed that the terrorists forced him to work for them. 6 The Tribunal did not find the appellant to be a credible witness, noting that his oral evidence often contradicted itself and was inconsistent with documentary evidence supplied by the appellant to the Tribunal. The Tribunal noted that the appellant did not tell them of his forced involvement in transporting terrorists in the hearing and then told the Tribunal that all his problems arose from that involvement. The Tribunal also noted that the appellant's evidence about when he started having problems was confused, as was his evidence about when he was arrested and the length of time he was detained. 7 The Tribunal noted aspects of three documents the appellant provided to the Tribunal that led it to conclude that the documents did not appear to be genuine. The Tribunal also noted that the appellant appeared to have little knowledge about the Sikh organisations he claimed to have been involved in. The Tribunal did not accept any of the appellant's claims to have suffered persecution in India and did not accept that he was involved in activities that might draw him to the attention of a "potential persecutor". The Tribunal accepted that the appellant is a Sikh and that up to the late 1980s Sikhs were at risk of persecution, but concluded on the basis of independent country information that the wholesale persecution of Sikhs ended in 1992 with the result that Sikhs generally are not a persecuted group in India today. 8 Before the Federal Magistrates Court, there were five grounds of review in the appellant's admitted application. The first ground was that the Tribunal committed a jurisdictional error in that after it concluded that the appellant was not a credible witness, it failed to consider whether he would suffer persecution if he was required to relocate within India. The Federal Magistrate held that because the Tribunal had concluded that the appellant was not involved in political activities as he claimed, it was not then possible for there to be an argument that the appellant would suffer serious harm if he was required to relocate within India. 9 The second ground was that the Tribunal's decision was unreasonable in the Wednesbury sense in deciding that evidence of the appellant's involvement in the ISYF was not relevant, because the appellant claimed that all his problems arose from his involvement with terrorists. Lloyd-Jones FM concluded that this aspect of the Tribunal's decision was not unreasonable in the Wednesbury sense. 10 The third ground of review relied upon by the appellant was that the Tribunal failed to comply with s 424A(1) of the Migration Act 1958 ("the Act") because the Tribunal relied on country information and concluded that the appellant was not reliable without giving the appellant an opportunity to rebut this finding. The Federal Magistrate concluded that the country information fell within s 424A(3)(a). Further, his Honour noted that without a transcript of the Tribunal hearing there was no evidence to suggest that the Tribunal had not put this information to the appellant orally. 11 The fourth ground was that the Tribunal had failed to comply with s 430(1)(c) and s 430(1)(d) of the Act. His Honour noted that the Tribunal had set out 17 different reasons why it did not accept the appellant's claims, and that the appellant was essentially seeking a merits review. Finally, the Federal Magistrate rejected the fifth ground of appeal that the Tribunal was biased, noting that this ground was completely unsupported by evidence and that no submission had been made in respect of it. 12 In the Notice of Appeal filed on 17 February 2006, the appellant appealed against the decision of the learned Federal Magistrate on two grounds. The first ground of appeal was that the learned Federal Magistrate failed to recognise that the Tribunal committed jurisdictional error in concluding that the appellant was not a credible witness. 13 In his submissions the appellant submitted that the finding of the learned Federal Magistrate in this respect was "... a mere endorsement of the Tribunal's decision and not the correct assessment of the evidence that the applicant gave the Tribunal during the hearing". In support of this ground the appellant has submitted that: The Tribunal's failure to assess the information given by the appellant in the correct perspective amounts to that the Tribunal failed to reach the required satisfaction in determining the appellant's application for refugee.