SZCWE v Minister for Immigration and Citizenship

Federal Court of Australia|2008-07-04|Before: Reeves J

INTRODUCTION 1 This is an appeal against a judgment of Federal Magistrate Lloyd-Jones delivered on 21 December 2007 which dismissed an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal'). The Tribunal's decision was handed down on 24 October 2006 and affirmed a decision of a delegate of the first respondent to refuse to grant a protection visa to the appellant.

BACKGROUND - SUMMARY OF FACTS 2 The appellant is a citizen of India who arrived in Australia on 29 March 2003. On 24 April 2003, he made an application for a protection visa (class XA). A delegate of the first respondent refused that application on 17 June 2003. The appellant applied for a review of that decision and on 20 January 2004, a differently-constituted Tribunal ('the previous Tribunal') subsequently affirmed the delegate's decision. The appellant sought judicial review of that decision in the Federal Magistrates Court and on 5 May 2006, Federal Magistrate Driver ordered by consent that the appellant's application be remitted to a newly constituted Tribunal ('the Tribunal') to be decided according to law. 3 The appellant attended a rehearing before the Tribunal on 14 July 2006 and gave evidence himself, as well as calling a "Mr Lohara" and a "Mr Gill" to give evidence, by telephone from India. He presented his passport. He had presented a letter dated 4 August 2003 to the previous Tribunal purportedly written by a "Mr Mann" and purportedly with reference to himself although the subject of the letter was a "Mr Grewal". 4 In his visa application and at each hearing, before the Tribunal and the previous Tribunal, the appellant claimed to fear persecution in India because he was a Sikh and he had been associated with (past) militant activity by fellow Sikhs including a relative of his, "Mr Pala". According to the appellant, he had suffered physical harm and general discrimination from Hindus in his home region, the Punjab, and later in New Delhi. 5 In his application the appellant claimed that his home had been burnt down by Hindus in 1984 and that his brother had been burnt alive. He claimed to have been tortured when he went to the police, and that when he left the police station many Hindus were calling out "kill the Sikh", so he fled to a refugee camp "for some time". The appellant claimed that in 1987 he began working as a driver for Mr Pala and that he was arrested after a bomb-blast in 1990 and tortured by police seeking to locate Mr Pala. He claimed that Mr Pala was subsequently found to have been murdered by police. 6 The appellant claimed that he suffered extortion from local police and was beaten. He moved to a new village and worked as a bus driver where some of his passengers were workers from the insurgent "Khalistan Commando Force" ('KCF'). He allegedly transported KCF weaponry without knowing it, although he also claimed to have become a supporter and to have met the leader of the KCF, "Mr Zaffarwal". According to the appellant, police raided his bus company in 1993 but he managed to escape to a new life in New Delhi. He later became a driver for the Sikh leader (Mr Mann) and joined his political party. 7 The appellant claimed that in 2001 the leader of the KCF (Mr Zaffarwal) made admissions to police, which led to him being arrested in December 2002, interrogated and tortured. He stated that "I gave them Rs 120000 to get released. Since January 2003 I decided to leave India as the police in India will never let me live in peace…I will always remain the supporter of an independent state for Sikhs as we are now living as slaves in India". 8 Before the Tribunal the appellant gave further evidence to explain his previous account in relation to his use of two names, the fact he did not flee India until 2003, the likelihood of ongoing harassment after leaving the Punjab and after the death of Mr Pala, and the relevance of his links to the KCF and Mr Mann's political party in contemporary India.

THE TRIBUNAL'S DECISION 9 The Tribunal accepted that the appellant was a Sikh, that he originally came from the Punjab and that he was related to Mr Pala relying on independent country evidence and accepting the appellant's evidence as plausible. The Tribunal also found that Mr Pala was a Sikh militant who was believed by police to have been involved in a bomb-blast in the Punjab in about December 1990. The Tribunal therefore accepted as plausible the appellant's claims that he and his family had been harassed and harmed by police during the time that he lived in the Punjab because they were related to Mr Pala and because they were Sikhs. The Tribunal also accepted as plausible that the appellant and his home had been targeted by Hindus in the Punjab because he was a Sikh; in retaliation for the actions of Sikh militants with whom he was perceived to have a connection. Finally, the Tribunal accepted the appellant's claims that he was a bus driver in the Punjab and that members of the KCF carrying ammunitions and weapons had ridden on his buses. 10 However, the Tribunal did not accept as credible the appellant's claims that everytime there was some Sikh violence in the Punjab, the police had continued to harass him and detain him, after he moved to New Delhi in 1994, because of his past relationships and activities in the Punjab. On this aspect, the Tribunal stated "[t]he independent evidence clearly indicates that the Militant Sikh Separatists Movement that committed acts of violence in the Punjab in pursuit of its cause was effectively crushed by 1993. Further, on the applicant's own rather confused oral evidence Mr Pala was killed more than a decade ago". 11 The Tribunal therefore did not accept that the applicant would have been of sufficient interest to the police that they would have tracked him to New Delhi in subsequent years". 12 In relation to the evidence given by the witnesses called by the appellant (Mr Lohara and Mr Gill), the Tribunal found that their evidence about the appellant's alleged problems with the police in New Delhi was vague and therefore gave "no weight to their evidence about these matters." 13 In relation to the appellant's involvement with the Mann Party the Tribunal accepted that he was a member and associated with the Party as he claimed. However, the Tribunal found that the appellant's evidence about his claimed persecution as a result was deliberately evasive. On this aspect, the Tribunal again rejected Mr Lohara's evidence because of its vagueness and gave it no weight. Whilst the Tribunal had doubts about the authenticity of the letter purportedly written by Mr Mann, it ultimately found that "even if the applicant continued his involvement with the Mann Party in India there is no real chance that he will be persecuted in the reasonably foreseeable future because of his membership or association with the Mann Party". 14 In summary the Tribunal stated that it did not accept that the appellant had any problems with the police after he left the Punjab and went to New Delhi because of his connection with Mr Pala or his associates, nor because KCF members had ridden on his bus and carried ammunitions and weapons, nor because Mr Zaffarwal had handed himself in to police in 2001. 15 The Tribunal ultimately concluded that there was "no real chance that the applicant will be persecuted by Hindus or Hindu groups because he is a Sikh if he returns to India". The Tribunal therefore rejected the appellant's claims to have a well-founded fear of Convention-related persecution in India and accordingly affirmed the decision of the delegate not to grant the appellant a protection visa.

THE FEDERAL MAGISTRATE'S DECISIOn 16 The appellant filed an Affidavit in the Federal Magistrates Court annexing the transcript of the hearing before the Tribunal. At the commencement of the hearing before the Federal Magistrate, his Honour gave leave to the appellant to file a further amended Application for review. In it, the appellant claimed that the Tribunal: 1. failed to take into account independent evidence which it was bound to take into account; and 2. failed in its fact-finding process by its 'gross error, manifest illogicality and unreasoned perversity', in the way it treated the corroborating evidence from the [appellant's] former lawyer in India by giving no weight at all on the basis it was vague, which treatment of the evidence was part of the reason for the Tribunal reaching a lack of satisfaction that the [appellant] is not a refugee. There followed some particulars which referred to parts of the transcript of the evidence before the Tribunal. 17 The Federal Magistrate rejected both grounds of review. In relation to the second ground, his Honour concluded the appellant's argument could not be sustained "as part of the evidence of both witnesses was accepted. However, the evidence about events after 1993 was vague or unresponsive. It was for this reason that the evidence was given no weight". The Federal Magistrate was satisfied the Tribunal had given rational reasons as to why parts of the evidence were given no weight.

GROUNDS OF THE PRESENT APPEAL 18 Save that an allegation has been added at the beginning to the effect that the Federal Magistrate failed to hold that the Tribunal had erred and the grounds have been renumbered 1(a) and 1(b) respectively, the Notice of Appeal filed in this Court on 11 January 2008 raises identical grounds to those contained in the application for judicial review filed in the Federal Magistrates Court (see above). CONTENTIONS 19 At the hearing of the appeal before me, Mr Silva appeared for the appellant and Ms Sirtes appeared for the first respondent. Both had earlier filed written submissions and both supplemented those written submissions with oral submissions. In relation to ground 1(a), Mr Silva focused on the evidence the appellant had put before the Tribunal about the problems he had with police after he left the Punjab for New Delhi in 1994. In particular, he focused on the evidence of Mr Gill, the appellant's lawyer in New Delhi. At [9] of his written submissions, Mr Silva submitted that: Had the Tribunal believed Mr Gill's evidence, especially about the appellant's problems after Mr Zaffarwal handed himself in, in April 2001, the appellant had a case that he has well-founded fear of persecution if he returns to India. Therefore, the Tribunal's finding that Mr Gill's evidence about (the) appellant's problems with the police vague and thus it gave no weight to that evidence, becomes critical to the appellant's case. 20 Mr Silva submitted that the Tribunal's reasoning that the Militant Sikh Movement in the Punjab had been crushed in the mid 1990's did not address the evidence the appellant put before the Tribunal that he was of continuing interest and had been arrested in 2002, particularly because of his connection to Mr Zaffarwal who handed himself in to police in 2001. Mr Silva set out a detailed analysis of the evidence given by Mr Gill and submitted that the evidence was not vague as the Tribunal had found. 21 Turning to the Federal Magistrate's decision, Mr Silva submitted that his Honour's conclusion (at [18]) that the Tribunal did not ignore the evidence of Mr Gill, but had considered it and given it no weight, was in error because it neglected to appreciate that by giving Mr Gill's evidence no weight, the Tribunal had effectively rejected the evidence and therefore not considered it in the balancing process. 22 On the question of rejecting the evidence of corroborating witnesses, Mr Silva referred to the High Court's decision in Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 ('S20/2002') and Justice Madgwick's decision in SZIEW v Minister for Immigration and Citizenship [2008] FCA 522 ('SZIEW'). 23 In relation to ground 1(b), ie the alleged irrationality in the decision, Mr Silva relied upon the decision of Justice Tamberlin in SZEEO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 546 and the recent decision of Justice Greenwood in SZDTZ v Minister for Immigration and Citizenship [2007] FCA 1824 ('SZDTZ'). Based on these authorities, Mr Silva submitted there was no proper basis for the Tribunal to draw the inference that the evidence of Mr Gill was vague and that it was irrational or illogical for the Tribunal to give Mr Gill's evidence no weight. He submitted this was a critical reason why the Tribunal rejected the appellant's claims to suffer persecution for Convention-related reasons. 24 Ms Sirtes submitted that the conclusions of the Tribunal, including the weight it gave to various parts of the evidence, were all part of the Tribunal's fact finding role and were therefore matters for the Tribunal. She submitted that the evidence of Mr Lohara and Mr Gill had been properly considered by the Tribunal and given no weight because the evidence was found to be vague. This, she submitted, was also part of the Tribunal's fact finding role, referring to the High Court's decision in Abebe v The Commonwealth (1999) 197 CLR 510 ('Abebe ') at [197] per Gummow and Hayne JJ and the decision of the Full Court in Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198 ('Chand ') at page 11. In this respect, she pointed to the comments of Justice Finn in SCAF v Minister for Immigration Multicultural and Indigenous Affairs [2005] FCA 237 ('SCAF') at 34, that while such terminology may be unfortunate, it did not disclose jurisdictional error. In summary, Ms Sirtes submitted that the appellant had not demonstrated any jurisdictional error and that the decision of the Tribunal was therefore a privative decision for the purposes of s474 of the Migration Act 1958 (Cth) ('the Act'). 25 In reply Mr Silva submitted that the Tribunal had rejected all of the evidence of Mr Gill except the evidence about the appellant's relationship with Mr Pala. He informed the Court that the appellant was not relying upon the evidence of Mr Lohara in this appeal, because that related to his involvement with the Mann Party and that particular aspect was no longer under challenge. In conclusion, he submitted that the appellant was not seeking merits review but instead a review based upon jurisdictional error in failing to give weight to, and therefore rejecting, the corroborating evidence of Mr Gill - which was crucial to the Tribunal's rejection of the appellant's application for a protection visa.

CONSIDERATION 26 An appeal to this Court from a judgment of the Federal Magistrates Court is directed to the correction of error on the part of the Federal Magistrate whose judgment is appealed from. 27 Mr Silva has submitted that the learned Federal Magistrate erred at [17] to [18] of his reasons in his consideration of the Tribunal's treatment of Mr Gill's evidence. Specifically he submitted that, his Honour failed to detect that fact that the Tribunal did not give any weight to Mr Gill's evidence and therefore did not consider it at all in assessing the credibility of the appellant's claims. 28 At [18] of his decision, the learned Federal Magistrate found that the Tribunal had identified "elements of the evidence given by the two witnesses and then clearly stated why it gave it no weight". Earlier his Honour pointed out that this evidence was directed to the problems the appellant claimed he had had with police after 1993, when he moved from the Punjab to New Delhi. 29 His Honour was clearly referring to the following part of the 'Findings and Reasons' section of the Tribunal's decision: Thus, given Mr Pala had been dead since shortly after the December 1990 bomb blasts or 1994 and Sikh violence in the Punjab had virtually ceased in 1993, the Tribunal does not accept that the applicant would have been of sufficient interest to the police that they would have tracked him to New Delhi in subsequent years. The Tribunal notes that Mr Lohara told the Tribunal that the applicant had been suspected by the police because he was a relative of Mr Pala. However, the Tribunal found Mr Lohara's evidence about what sort of problems the applicant had experienced vague. Even when asked directly about the sorts of problems the applicant had experienced Mr Lohara did not elaborate. Mr Gill too said that the applicant had problems with the police because of Mr Pala and Mr Zaffarwal. However, for a lawyer who claims to have helped the applicant whenever he encountered these problems, the Tribunal also found his evidence about the applicant's alleged problems with the police vague. Hence, the Tribunal has given no weight to their evidence about these matters. 30 In my view, when the whole of this section of the Tribunal's decision is read, it become apparent that when it used the word "vague" on each occasion (above), the Tribunal used that word in the sense that it thought the evidence of both Mr Lohara and Mr Gill was not explicit or precise (see Macquarie Dictionary 4th ed at page 1555), or lacking in detail. I believe this meaning emerges from the three sentences that occur between each use of the word "vague" and particularly the statement at the end of the first sentence: "Mr Lohara did not elaborate". In those sentences I believe the Tribunal makes it clear that it endeavoured to obtain elaboration or details about the sorts of problems the appellant had experienced with police in New Delhi and was unable to obtain it. 31 While the expression used by the Tribunal in the concluding sentence that it "has given no weight to their evidence" could be interpreted to mean, as Mr Silva submits that it should, that the Tribunal rejected Mr Gill's evidence completely and therefore did not properly consider it, I believe that when that expression is read in the context of the decision as a whole, a fair reading of it suggests that the Tribunal is not rejecting Mr Gill's evidence completely without due consideration , but rather it is saying that on a consideration of that evidence and the evidence of Mr Lohara, neither witness provided any details or specifics to support the appellant's claim that he was persecuted by police in New Delhi in the period after 1993. 32 Since I believe it is clear from a fair reading of the Tribunal's decision that the Tribunal did consider the evidence of Mr Gill and dealt with it in the way indicated above, the appellant cannot gain any support from the four decisions Mr Silva referred to: S20/2002, SZIEW, SZEEO or SZDTZ. 33 In my view, the critical question the Tribunal had to determine in this matter should be kept firmly in mind. That question was whether, based upon the appellant's claims of past persecution, there was a real chance the appellant would suffer persecution if he were to return to India. The evidence of the appellant and his witnesses was obviously directed to answering this question in the affirmative. Nonetheless, in my view, the process of assessing this evidence fell squarely within the fact finding jurisdiction of the Tribunal. As the High Court observed in Abebe at [197]: In the end, the criticisms made by the applicant of the Tribunal's reasoning are criticisms of the factual findings it made and are criticisms that fasten upon the weight that the Tribunal attributed to various pieces of information it had available for consideration. But what weight the Tribunal gave to those various pieces of information was for it to say. The Full Court decision of Chand is to similar effect (see page 11). 34 It follows, in my view, that the learned Federal Magistrate did not make any error in his review of the Tribunal's treatment of Mr Gill's evidence. It further follows that the Tribunal committed no jurisdictional error in its treatment of Mr Gill's evidence or the appellant's claims more generally. 35 For these reasons, this appeal must be dismissed.

ORDERS 36 I therefore order that this appeal be dismissed. I will hear the parties on the question of costs. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate: Dated: 4 July 2008 Counsel for the Appellant: Mr T Silva

Solicitor for the Appellant: Silva Solicitors

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