SZIWH v Minister for Immigration and Citizenship [2007] FCA 1147

FEDERAL COURT OF AUSTRALIA

SZIWH v Minister for Immigration and Citizenship [2007] FCA 1147 SZIWH v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 706 OF 2007

LINDGREN J

31 JULY 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 706 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZIWH

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: LINDGREN J DATE OF ORDER: 31 JULY 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the first respondent's costs of the appeal. 3. The costs referred to in Order 2 above be fixed at the sum of $1,900. 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 706 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZIWH

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: LINDGREN J

DATE: 31 JULY 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant appeals from a judgment of the Federal Magistrates Court of Australia given on 20 April 2007: SZIWH v Minister for Immigration & Anor [2007] FMCA 588. The Federal Magistrates Court dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal). The Tribunal's decision had been given on 20 April 2006 and was handed down on 16 May 2006. By its decision the Tribunal affirmed a decision of a delegate of the first respondent (respectively the Delegate and the Minister) not to grant to the appellant a Protection (Class XA) visa. 2 The appellant is a citizen of India who arrived in Australia on 20 November 2005. On 22 November 2005 he lodged an application for a Protection visa with the Department of Immigration and Multicultural and Indigenous Affairs (now the Department of Immigration and Citizenship). The Delegate refused to grant the visa on 16 February 2006. On 28 February 2006 the appellant applied to the Tribunal for a review of the Delegate's decision. 3 Importantly, the Tribunal invited the appellant to attend a hearing before it but he returned a notice to the Tribunal consenting to its proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it. 4 In its Reasons for Decision the Tribunal noted claims made by the appellant in his application for the visa as follows: · He is from the State of Punjab, India and he is of Sikh ethnicity and religion. · His family supported the Khalistan Movement (the Movement) fighting for a separate State for Sikhs. The Movement has been subjected to various types of discrimination. The main idea of the Movement is to fight against social injustice caused to the Sikh community due to religion and culture. After the BJP (Bhartiya Janta Party) came to power, Sikhs were harassed and branded terrorists. · He had a "lot of problems with the Ruling BJP and earlier the Indian Congress and in the course we had severe encounters". · In the beginning of 1984, the then Government attacked [the Sikh's] major Holy Temple and a lot of the appellant's close relatives died. · "After 8 years", his brother was killed and his parents sent him to a hostel far away from home. · He was arrested by the police, appeared before a Magistrate and was imprisoned for no reason. "One day", they came to his place and hit him with chains and steel rods. He was unconscious and was hospitalized for more than three months. His family was very worried and decided that it would be better for him to leave India as soon as possible. · He was told by some friends that the BJP and Congress members were planning to kill him. He went into hiding "for some time in other parts of India". He tried to return to Punjab but this made matters worse. · He fears that if he were to return to India, he would be persecuted and killed by his opponents. He fears for his life. (Original emphasis.) 5 The Tribunal described the appellant's claims as "a series of vague and general claims lacking in details". It gave illustrations as follows: For example, the applicant has claimed that his family supported the Movement but he provides no details about this alleged support. He claims that he had a "a lot of problems with the Ruling BJP and earlier the Indian Congress and in the course we had severe encounters", but he does not give any details about the nature of the problems or the encounters. He claims that he can remember experiencing harassment throughout his life but he does not provide any details. He claims that he was arrested but he does not give any details about the arrest. He claims that he went into hiding "for some time in other parts of India" but does not give any details about when and where he went. He claims that "One day", they came to his place and hit him with chains and steel rods, but he does not explain who "they" are or when the incident occurred. In sum, the applicant makes a series of vague assertions. (Original emphasis.) 6 The Tribunal stated that without further details, clarifications or corroborative evidence, and without having had the opportunity to explore the claims with the appellant at a hearing and to test his evidence, the Tribunal was not satisfied that his family supported the Khalistan Movement or that he had a "lot of problems with the Ruling BJP and earlier the Indian Congress in the course [of which he] had severe encounters". The Tribunal listed other claims made by the appellant as to which the Tribunal said it was not satisfied. The Tribunal said that having considered the evidence as a whole, it was not satisfied that the appellant was a person to whom Australia had protection obligations under the Convention relating to the Status of Refugees made at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees made at New York on 31 January 1967. 7 The appellant filed a discursive amended application before the Federal Magistrates Court in which he repeated many of his factual claims. In substance his complaint was that the Tribunal had not properly evaluated his claims. The learned Federal Magistrate set out the grounds in the appellant's amended application for review. The appellant appeared before the Federal Magistrate with the assistance of a Punjabi interpreter. He had made written submissions to the Federal Magistrates Court and said that he relied upon his amended application and his written submissions and did not wish to make oral submissions. The Federal Magistrate noted that the appellant, who was self-represented, appeared to have little understanding of the contents of his amended application for review or of his written submissions. The Federal Magistrate was satisfied that the appellant had been given an opportunity to advance his claims before the Tribunal and that nothing of significance was presented to show any error on its part. 8 This morning the appellant appeared again self-represented. He had not filed written submissions for the purpose of today's hearing. The grounds of appeal stated in his notice of appeal are as follows: 1. That the learned Federal Magistrate over looked the jurisdictional errors so committed by the Respondent N02 [sic]. The decision of the RRT [Refugee Review Tribunal] involves the legal errors. 2. The provisions of the Migration Act and the Regulations were not met in the above case. 3. That the RRT has misunderstood the whole claim of the appellant, the RRT has also committed the violations of the Refugee law as laid down by the UNHCR [United Nations High Commissioner for Refugees] as such the case requires the redetermination by the competent authority. The RRT did not gave to the actual fear to which the applicant/appellant is being made to face by the authorities back in the country of original of the appellant. The RRT did not considered the fact that the appellant had given all the facts and the figures as to the fear and the harm being faced to the appellant. 9 I invited the appellant to speak in support of his appeal but he said that he did not wish to say anything. I checked with him that he had received a copy of the written submissions of counsel for the first respondent, and he produced his copy. I also asked the appellant whether it was correct that he had received an invitation to attend the hearing before the Tribunal and had advised the Tribunal that he did not wish to attend, as this was the position revealed in the papers before the Court. At first he appeared to have difficulty understanding that question but after he was assisted by a friend in understanding it, he confirmed that he had received the invitation to attend the Tribunal hearing and had advised the Tribunal that he did not wish to do so. 10 No reason is shown why the Federal Magistrate erred or why the Tribunal committed any jurisdictional error. For the above reasons the appeal will be dismissed with costs. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.