SZEPV v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 The appellant appeals against a judgment of the Federal Magistrates Court of Australia delivered on 14 March 2007 by which that Court dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal): SZEPV v Minister for Immigration and Anor [2007] FMCA 431. The Tribunal's decision was signed on 26 October 2006 and handed down on 21 November 2006. The Tribunal affirmed a decision of a delegate of the first respondent (respectively, the Delegate and the Minister) not to grant a Protection (Class XA) visa to the appellant. 2 The appellant is a citizen of India who arrived in Australia on 3 October 1999. On 1 November 1999 he lodged an application for a Protection visa with the Department that is now called the Department of Immigration and Citizenship. The Delegate refused to grant the visa on 11 December 1999. On 10 January 2000 the appellant applied to the Tribunal for a review of that decision. The Tribunal affirmed the Delegate's decision on 15 August 2001. Eventually, on 24 May 2006, Collier J of this Court set aside the Tribunal's decision and remitted the matter to the Tribunal for reconsideration: see SZEPV v Minister for Immigration and Multicultural Affairs [2006] FCA 673. 3 It is the reconsideration of the Delegate's decision by the Tribunal differently constituted that has given rise to the application to the Federal Magistrates Court and appeal to this Court. 4 The appellant's claims were that: (a) he was an Indian national of the Sikh faith; (b) he feared harm from the Indian authorities by reason of his association with the Khalistani freedom movement, his religion and his commitment to Sikh independence; (c) he was involved in peaceful protests for the creation of a separate Sikh state and he supported the party of Singh Mann; (d) he transported Khalistan commandos over the Indian border; (e) in 1984 there were atrocities committed against Sikhs and whenever there was an incident or trouble the police would harass him leading to his being detained for two days in 1994 and 10 days in 1998; (f) he was on the wanted list of the police because of his involvement in assisting terrorists to cross the border. 5 The Tribunal accepted that the appellant was a Sikh and that in the late 1980s and early 1990s he may have been viewed with suspicion by the police and subjected to questioning and surveillance on that account. The Tribunal also accepted that he may have been detained for two days in 1994 by reason of his ethnicity, religion or political opinion. 6 The Tribunal did not accept, however, that the appellant continued to be a person of adverse interest to the authorities by reason of his ethnicity, religion or political opinion. In particular, the Tribunal did not accept that he had been involved in transporting Khalistan commandos or that he was their accomplice. Consequently, it did not accept that his name was on a "wanted list" or that he was arrested in 1998 for 10 days for the reason that he was on a "wanted list". 7 The Tribunal accepted that the circumstances in which Sikhs in India were placed had improved considerably compared to what they had been prior to the mid 1990s. Accordingly, the Tribunal did not accept that the appellant faced harm if he were to return to India, by reason of his ethnicity, religion or political opinion, or a combination of those reasons. 8 The Federal Magistrates Court concluded that the findings made by the Tribunal were open to it on the evidence. That Court considered that the Tribunal had not, on the evidence, misconstrued the appellant's claims, or failed to consider them. That Court also rejected a complaint that the Tribunal had been biased. 9 By his notice of appeal to this Court filed on 4 April 2007, the appellant relies on two grounds as follows: (A) The Appellant submit that the learned Federal Magistrate erred in law when the judicial review application of Applicant was dismissed without considering the Applicant's argument that the Tribunal failed to evaluate in a constructive and articulate manner the Applicant's claims due to the following finding it made: "The Tribunal does not accept that the Applicant was involved in transporting Khalistan Commandos or that he was an accomplice to these commandos. At best the Tribunal finds that the Applicant may have occasionally provided lifts to persons seeking to cross the Indian border. The Tribunal found the Applicant's oral [evidence] about the transporting of terrorists to be unconvincing in that he was equivocal and defensive in providing relevant detail about this claim. The Applicant described his transporting of terrorists as random and more akin to picking up a hitch hiker [rather] than a systematic or orchestrated activity" (CB page 180 para 05). The Appellant submits that the Tribunal's finding that the "Applicant described his transporting of terrorists as random and more akin to picking up a hitch hiker" was wrongly made because of the detailed evidence the Applicant in his statement and oral evidence. Hence the Applicant that the cavalier manner in which the Applicant's claims were dealt with was a jurisdictional error. (B) The Appellant further submits that the learned Federal Magistrate yet failed in not recognising the Applicant's argument that the Tribunal contradicted its own position when dealing with the Applicant's claims and thereby had made unreasonable findings as follows: "The Tribunal does not accept that the Applicant has a political profile imputed or otherwise. At the hearing the Applicant provided unconvincing oral evidence about his political activities. He claimed to be associated with groups promoting Sikh independence such as Simarnajit Singh Mann Party. However when asked to describe his activities, he provided vague and general detail to the effect that he had delivered messages between Members of the Party in different states". The Appellant submit that the Tribunal failed to consider its own findings which were stated in the Amended Application to Federal Magistrates Court and thereby failing to deal with the jurisdictional commitment under Sec. 91R of the Migration Act as to the Applicant's future fears, which amounts to a jurisdictional error made by the Tribunal. (Original emphasis.) 10 The appellant has provided written submissions in support of these two grounds. In relation to the first ground, the appellant submits that the Federal Magistrate erred in law because he failed to evaluate "in a constructive and articulate manner" the appellant's claims for refugee status. In particular, the appellant complains that the Tribunal's finding in relation to the transporting of terrorists was an erroneous finding because of detailed evidence that the appellant had given in his original statement in support of his visa application and in oral evidence at the hearing before the Tribunal. The appellant complains of "the cavalier manner" in which this claim was dealt with. Although the appellant in his written submission refers to "detailed evidence" that he gave in "his original statement (866)" the copy of his "Application for a protection visa (866)" in the Appeal Papers makes no mention of his transporting terrorists across the Indian border. 11 According to the Tribunal's reasons for decision, the appellant said, for example, that he would be involved in a delivery of apples to Delhi and someone would come and ask for a lift. He said he would pick up one person and then he would have a number of people insisting that they provide them with a lift too. The appellant stated that a gun was held to his head and he was forced then to drive the terrorists as they demanded. 12 In the "Findings and Reasons" section of the Tribunal's Reasons for Decision, the Tribunal stated that it did not accept that the appellant was involved in transporting Khalistan commandos or that he was an accomplice to them. The Tribunal found that at best the appellant may have occasionally provided lifts to persons seeking to cross the Indian border. The Tribunal said that it found the appellant's oral evidence about the transporting of terrorists to be unconvincing in that he was equivocal and defensive in providing detail about this claim. The Tribunal stated that "The applicant described his transporting of terrorists as random and more akin to picking up a hitch-hiker rather than a systematic or orchestrated activity". 13 While this finding does not address the appellant's allegation in oral evidence before the Tribunal that a gun had been held to his head and that he had been forced to drive the terrorists where they demanded, the thrust of the finding is that, in accordance with the appellant's evidence that one individual followed by others would ask for a lift, the position was far removed from a systematic transporting of terrorists. The appellant's own evidence in relation to this matter is somewhat difficult to reconcile with his claim of persecution on the ground that he supported the Khalistan commandos. In any event, even if the Tribunal's finding could be criticised as inadequate in some respect, it is a finding of fact and does not give rise to jurisdictional error. 14 In relation to the second ground of appeal, in his written submissions the appellant complains that the Federal Magistrate failed to recognise and deal with the appellant's argument that the Tribunal had "contradicted its own position when dealing with the applicant's claims and thereby had made an unreasonable finding". The particular "unreasonable finding" referred to by the appellant in his written submission was that the Tribunal did not accept "that the appellant had a political profile imputed or otherwise", and had provided unconvincing oral evidence about his political activities. 15 The appellant's present complaint is nothing more than a criticism of the factual conclusions reached by the Tribunal. This is far from demonstrating jurisdictional error. 16 I agree with Mr Mitchell, counsel for the first respondent, that neither ground of appeal demonstrates that the Tribunal's decision was vitiated by jurisdictional error. 17 For the above reasons the appeal should be dismissed with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.