SZJUR v Minister for Immigration & Citizenship [2007] FCA 2036

FEDERAL COURT OF AUSTRALIA

SZJUR v Minister for Immigration & Citizenship [2007] FCA 2036

SZJUR v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD1304 OF 2007

JACOBSON J

18 DECEMBER 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD1304 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZJUR

Applicant

AND: MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: JACOBSON J

DATE OF ORDER: 18 DECEMBER 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed with costs. 2. The applicant to pay the costs of the first respondent pursuant to Order 62, rule 4(2)(c) of the Federal Court Rules, assessed in the amount of $2,000.00. 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 NSD1304 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZJUR

Applicant

AND: MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: JACOBSON J

DATE: 18 DECEMBER 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application for leave to appeal from orders of Scarlett FM made on 9 July 2007 refusing to grant the applicant leave to reinstate his application for review of a decision of the Refugee Review Tribunal. 2 The Tribunal's decision was dated 30 August 2006 and was handed down on 20 September 2006. The Tribunal affirmed a decision of a delegate not to grant the applicant a protection visa. 3 The applicant sought judicial review of the decision of the Tribunal. That application was listed for final hearing before Scarlett FM on 20 February 2007 but the applicant did not attend the court on that day. The Federal Magistrate dismissed the application because of the applicant's failure to attend the hearing. 4 The applicant is a citizen of India who arrived in Australia on 28 February 2006. He applied shortly thereafter for a protection visa but a delegate of the Minister refused to grant the visa on 27 April 2006. 5 The applicant claims to have a well foundered fear of persecution in India because of his political profile. He claims to be a Sikh from Punjab who belongs to a family of freedom fighters. He claims that in 1994 he joined the Khalistan Commando Force and that he was later detained and tortured. 6 The Tribunal accepted the applicant's evidence about the nature and level of his involvement with the Khalistan movement. It accepted that he had joined the Khalistan political party in 1994 and that he had been detained by the police in 1995. The Tribunal also accepted that the applicant's brother joined the Khalistan party and that his whereabouts were unknown. 7 The Tribunal made reference to country information about the movement for a separate Sikh state. The movement is called the Khalistan movement and comprises a number of pro‑Khalistan groups. The Tribunal accepted, on the basis of the country information, that there was a period of widespread violence in the Punjab which began in 1984 and that there were serious human rights violations and that Sikhs were persecuted. 8 However, the Tribunal found that the country information indicated that the human rights situation in the Punjab had returned to a state of "normalcy" by 1998 and that independent country information showed that the political and human rights situation had improved markedly since the end of the period of militancy. 9 The Tribunal also referred to country information which indicated that people who were not high profile militant suspects were not at risk in the Punjab and that Sikhs with some slight perceived connection to the militancy would not be targets for the Punjabi police. 10 The Tribunal accepted that the applicant and his brother were connected with the militancy in their support for a separate Sikh state until the mid‑1990s, but it did not accept that the applicant's activities resulted in him being perceived as a leader of a militant organization. Nor did it accept that he was suspected of anti‑state or terrorist activities. 11 The Tribunal concluded that the applicant was not of interest to the Indian authorities at the time of his departure from India in February 2006. It was satisfied on the evidence that the applicant would not face serious harm if he returned to the Punjab. The Tribunal then said: The Tribunal found the applicant's evidence about collecting funds in Cambodia for the Khalistan movement vague and general. The applicant claimed that he visited people's houses whilst in Cambodia and collected funds, although he did not directly ask for money. The applicant did not provide any evidence as to who was asked to donate funds, and what funds were collected or what information was given to donors. The Tribunal finds that he has fabricated his claim about his political activity in Cambodia. The Tribunal concludes that this evidence was submitted to bolster the applicant's claims.