FEDERAL COURT OF AUSTRALIA SZIJC v Minister for Immigration and Citizenship [2007] FCA 690 SZIJC v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 85 OF 2007 BRANSON J 30 APRIL 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 273 OF 2007 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZIJC Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: BRANSON J DATE OF ORDER: 30 APRIL 2007 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The name of the first respondent be changed to Minister for Immigration & Citizenship. 2. The appeal be dismissed. 3. The appellant pay the first respondent's costs fixed in the amount of $2 500.00. 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 273 OF 2007 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZIJC Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: BRANSON J DATE: 30 APRIL 2007 PLACE: SYDNEY REASONS FOR JUDGMENT Introduction 1 The appellant is a citizen of India who arrived in Australia on 1 August 2005 on a visitor's visa. Shortly thereafter, on 25 August 2005, he applied for a protection visa. A delegate of the then Minister for Immigration and Multicultural and Indigenous Affairs refused the application on 20 September 2005. This decision was affirmed by the Refugee Review Tribunal in January 2006. The appellant then applied to the Federal Magistrates Court for review of the Tribunal decision. On 22 December 2006 the learned Federal Magistrate dismissed the application for review. 2 The appellant claims that he fled India in fear after witnessing an incident in January 2005 where a policeman was shot and wounded. The appellant claims he was hired as a taxi driver to take three men to a nearby village. The appellant says he is unable to say precisely what happened but, after encountering a police roadblock on their journey, a shot was fired and a policeman was injured. The appellant claims he fled the scene and that he was later questioned and beaten by police who had taken him to the police station after coming to his home. He claims that some days later he was visited by two other men who threatened to kill him and his family if he were to assist the police with their investigation. Issues on appeal 3 The appellant's notice of appeal to this Court sets out two grounds of appeal. The first ground of appeal appears to challenge the conclusion of the Federal Magistrate that it was open to the Tribunal to find that the essential or significant reason that the appellant feared persecution was that he was a bystander or witness to a criminal act. The second ground of appeal appears to challenge the conclusion of the Federal Magistrate that it was properly open to the Tribunal to find that the appellant had exaggerated his experience in India in relation to the interest of the police in him. The Tribunal took the view that the police interest in the appellant was interest in him as a witness or bystander to the shooting incident rather than as an accomplice or someone who aided and abetted the person who fired the shot. I confirmed with the appellant today that my understanding of these two grounds of appeal is the correct understanding. 4 The appellant's main argument, as characterised in his written submissions which he adopted in Court today, is that the Tribunal misunderstood his claims in that it failed to recognise that he feared persecution because the police in India imputed to him a political opinion adverse to the police and supportive of terrorist activities. The appellant did not draw my attention to any material before this Court which suggests that he has previously raised this claim; that is, the claim to fear persecution in India on the ground of actual or imputed political opinion. In his original application for a protection visa under the heading, 'Why did you leave that country?' (that is, India), the appellant stated: 'I come from a poor family, my Father's farm was only a bit larger than an acre and hardly supported our family, because of it's [sic] small size when I finished school my Father purchased a taxi so that I could work off the farm and so earn more income to help the household. In January of 2005 … three men hired me to take them to [place] which is about 15 kilometres from [place] and as we travelled we encountered a Police Roadblock. They requested to check our ID's and the three passengers got out of the taxi. What happened I am not sure but I head [sic] a shot and I learnt afterwards one of the Policemen was wounded. I panicked and left the scene to go home. It was a foolish thing to do but I was scared. That night at about 9 o'clock the Police came to my home and took me to the Police Station in [place]. As would be expected they questioned me, beat me and said I was to be a witness to identify the three men who had attacked the Police. I was very scared at all of this, and my relatives and the village Headman managed to secure my release on a bail of 10000 rupees. … I have no idea why the Police were interested in the three men and why they acted as they did, but like many others, I am caught in events which I do not understand, but in being close to those events, being powerless and poor, unable to seek help it will be understood my need to seek safety and security outside of India.' 5 Under the heading on the protection visa application form, 'What do you fear may happen to you if you go back to that country?', the appellant included information concerning the plight of poor people in India and referred to an Amnesty International report of 2005 which stated that members of the security forces enjoy virtual impunity for human rights violations. He concluded under this heading: 'Thus you will see why I felt insecure and anxious and that the stress led me to seek to leave India.' 6 Under the heading, 'Who do you think may harm/mistreat you if you go back?', the appellant stated: 'As I have discussed the Police have treated me badly, beaten me and I have no faith in the Authorities as India is very corrupt and people such as I who are poor have no protection against the Police.' 7 Under the heading, 'Why do you think this will happen to you if you go back?', the appellant stated: 'As I have stated I do not know the reason why the three men were against the Police but my running away because I was scared was a foolish action, and because I was detained there will always be that suspicion.' 8 The written decision of the delegate of the Minister records that the delegate was not satisfied that the appellant had put forward any claim to fear serious harm or mistreatment in India as a result of his race, religion, nationality, political opinion or membership of a particular social group. The delegate noted rather that the appellant's claims related to his being a potential witness to an attack on the police. 9 On his application for review by the Tribunal of the decision of the delegate, the appellant repeated the story of the incident during which one of three passengers in his taxi shot at police at a checkpoint. He claimed that the police continued to search for him because he could give information about the incident. The following passages appear in the reasons for decision of the Tribunal: 'The applicant was asked by the Tribunal why the police would kill him and he said that they kept questioning his father about his whereabouts. … He was asked why he thought the police would kill him when they needed him as a witness and he responded that it was because they wanted to ask him questions about the three men. He was asked again why would this lead them to kill him and he said he did not know. … He responded he could not say why they were still seeking him. … The applicant stated that apart from these difficulties with the Police he had no other problems in India. … The Tribunal explained to the applicant that it appeared that harm that he feared was not for any Convention ground. He confirmed that he had not been involved in any political groups, that he had not suffered any difficulties because of his religion or because of his ethnicity. He explained that the Police wanted him as a witness, they wanted him to identify the men who had injured one of them.' 10 It appears that before the Federal Magistrate the appellant challenged the conclusion of the Tribunal on the basis, first, that it should have found that he had a well-founded fear of persecution on the grounds of membership of the particular social group constituted by poor people in India, and secondly, that the Tribunal should have accepted that he faced a risk of serious harm from the police in India as they saw him not merely as a witness but as someone who had aided or abetted the shooting of an officer. It does not appear, however, that any suggestion was made to the Federal Magistrates Court that the police viewed the conduct of the appellant as being politically motivated. 11 In Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 112, Gleeson CJ said the following at paragraph 1: 'It may not be surprising that, at the fifth level, an appellant will look for a new way of putting a case that has already failed on four occasions. The case put to this Court may bear little relationship to what was previously advanced, considered, and rejected. There is a risk that criticism of the reasoning of a decision-maker at an early stage might overlook the forensic context in which such reasoning was expressed; a context that may have changed almost beyond recognition. Proceedings before the Tribunal are not adversarial; and issues are not defined by pleadings, or any analogous process. Even so, this Court has insisted that, on judicial review, a decision of the Tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant's lawyers, at some later stage in the process.' (citation removed) 12 Although the Chief Justice was in the minority on the outcome of that appeal, nothing said by the other members of the High Court undermines the authority of his Honour's observation. In particular, nothing said by McHugh and Kirby JJ at paragraph 39 of that judgment is inconsistent with what the Chief Justice said in paragraph 1. 13 In the present case the appellant has not earlier advanced a case to have a well‑founded fear of persecution on the ground of actual or imputed political opinion. In the circumstances the learned Federal Magistrate did not err in concluding that it was open to the Tribunal to find that the essential or significant reason why the appellant fears persecution in India is that he was a bystander or witness to a criminal act. For the same reason, the appellant's claim that the Tribunal assumed that the police were interested in him merely as a witness when the true position was that he claimed to have been harassed and hounded by the police, not as a witness but as an accomplice, should also be rejected. 14 The only other matter put to the Court by the appellant today is a claim that his wife and child who remain in India will be in greater danger if he returns to India than if he remains here. That does not seem to have been a claim earlier advanced and it is not clear how, had it been advanced, it would have assisted the Tribunal in determining that the appellant has a well-founded fear of persecution in India for a Convention reason. 15 For the above reasons the appeal is dismissed. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson. Associate: Dated: 11 May 2007 Counsel for the Appellant: The Appellant appeared in person Counsel for the Respondent: Mr T Reilly Solicitor for the Respondent: Sparke Helmore Date of Hearing: 30 April 2007 Date of Judgment: 30 April 2007