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[2005] FCA 1506
Federal Court of Australia
2005-10-26
Sundberg J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 This is an appeal from the decision of the Federal Magistrates Court dismissing an application to review the decision of the Refugee Review Tribunal affirming the Minister's delegate's refusal to grant the appellant a protection visa. Pursuant to s 25(1A) of the Federal Court of Australia Act, the Chief Justice directed that the appeal be heard and determined by a single judge. The appellant's claims and the evidence before the Tribunal are contained in its reasons, and are summarised in the Magistrate's judgment. It is not necessary to set them out again. 2 The appellant's grounds of appeal are: "a. The Federal Court erred in not finding that the RRT acted in bad faith or with bias. b. The Federal Court erred in finding no reviewable Legal error in the decision of the RRT. c. The RRT failed to make a careful and thorough review of the applicant's case and the Federal Court erred in not finding this. d. The Federal Court erred in not finding a jurisdictional error in the decision of the RRT. e. The Federal court erred in not finding that the matter should be remitted to the RRT and that the decision of the RRT be questioned or set aside."
Because of the unhelpful nature of all but the first ground, it is appropriate, since the appellant is not legally represented, to treat him as asserting error in relation to each of the matters he put to the Magistrate.
3 The Magistrate rejected the appellant's claim that the Tribunal had erred in dismissing his claim to fear persecution from members of the general Indian community, in particular Hindus, who oppose the creation of a separate Sikh state (Khalistan), which the appellant and other family members supported. After noting that the Tribunal was not required to accept that the applicant and his family would be harmed for their pro‑Khalistani views, and that in concluding that his fear was not founded it had relied on considerable country information, the Magistrate said: "The question of the accuracy of that country information is one for the Tribunal and not for the court. It is clear from its reasons that the Tribunal did rely on country information in making its assessment of the future and that the conclusion that it reached was open to the Tribunal on the basis of the material it used. Both the choice and weight of such material were matters for the Tribunal. The court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at 11 and 13). There is no jurisdictional error in the manner in which the Tribunal proceeded to make its findings." 4 The Tribunal gave detailed consideration to a range of country information, which it set out in its decision. It expressed its conclusion, based on that material, as follows: "In view of the virtual elimination of Sikh militancy both in the Punjab and other parts of India since the mid‑1990s, and the political stability which has prevailed as a result, and taking into account that neither the applicant nor his parents have ever belonged to any Sikh political organisation supportive of Khalistan and are not identified as militant Sikhs, the Tribunal finds that there is not a real chance that if he returned to India the applicant would be persecuted by reason of his political opinion by the Indian authorities or by Hindus or by moderate Sikhs who do not support Khahlistan."
The country information, and other material to which the Tribunal referred in that passage, amply support its conclusion. No error on the Magistrate's part has been shown in her rejection of this ground of review.
5 The Magistrate concluded that there was no substance in the appellant's claim that the Tribunal erred in rejecting his claim to a fear of harm from extended family members as a consequence of a property dispute amongst them arising out of the division of his grandfather's property about a decade earlier. The Tribunal accepted that there was a family dispute, but concluded that "the motivation of the different branches of the family to harm each other does not arise for a Convention reason". No error has been shown in the Magistrate's rejection of this ground of review. 6 One of the appellant's contentions before the Tribunal was that he feared harm arising as a possible consequence of a war or conflict, whether conventional or nuclear, between India and Pakistan. The Magistrate recorded the Tribunal's view that this was not Convention‑related, but did not herself deal with the issue. That is doubtless because it was not mentioned in the appellant's contentions of fact and law filed in the Magistrates Court, and quoted by her Honour at [5] of her decision. Had it been pursued before the Magistrate, it would have to have been rejected, for the reason given by the Tribunal. 7 The only specific ground of appeal (see [2]) is that the Magistrate erred in not finding that the Tribunal acted in bad faith or with bias. The Magistrate said that this allegation would appear to have been lightly made without any foundation whatsoever. On the appeal nothing was said that lent any credibility to this ground of appeal. 8 The appeal is dismissed with costs.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.
Solicitor for the Respondent: Australian Government Solicitor
MZWBP
Minister for Immigration & Multicultural & Indigenous Affairs