SZIAK v Minister for Immigration and Multicultural Affairs

REASONS FOR JUDGMENT 1 The appellant is an Indian citizen who arrived in Australia on 3 July 2002. He applied for a protection class XA visa, which claim was refused by the Department. He applied to the Refugee Review Tribunal (the "Tribunal") for review of that decision. The Tribunal affirmed the earlier decision. He sought judicial review of that decision. On 20 September 2005 the Full Court ordered that the matter be remitted to the Tribunal for further consideration. The matter was reheard on 17 November 2005. The Tribunal again affirmed the original decision. The appellant applied for judicial review of that decision in the Magistrates Court but was unsuccessful. This is an appeal from that decision. 2 The substance of the appellant's claim to be a refugee appears at pp 4-9 of the Tribunal's reasons which were handed down on 8 December 2005. He claims to have been born in Mahdu in 1957. He is Punjabi, Hindu and a Sikh. He was a farmer before coming to Australia, running his own farm from 1973 until March 2002. He claims to have left India from New Delhi, experiencing no difficulty in obtaining travel documents. His wife and children remain in India. 3 He claims to have left India for fear of his life. Since 1984 he had supported the movement for a separate state of Khalistan and given material support to members of the Khalsa movement. As a result he claims to have been subjected to persecution by the Congress Party and by the police. He claims that he and his parents have been harassed. The police have raided their premises. On a number of occasions he has left home in order to avoid police activity. He claims that his parents have had to pay the police on a monthly basis. 4 Although his claims indicate concern about the activities of other groups, his primary fear is of persecution by the Congress Party, the police and associated support groups. The Congress Party is presently in government in the Punjab. He claims that he will not enjoy government protection. He claims to have been an active leader of militants opposed to the Congress Party and associated groups and organisations. His brother is the head of his village and influential for that reason. 5 The appellant submitted a number of documents in support of his case. Two purported to be affidavits, one by his father and the other by somebody who is described as 'Davinder Singh Sarpanch'. I understand the Sarpanch to be the head of a village or in some similar position of authority. The affidavits seem to support the appellant's claim to fear harassment by the government. A third document, which was not in English, allegedly certifies that his father was imprisoned in 1983 and 1984. The relevance of this is not entirely clear to me from my perusal of the material. Although the appellant claimed that his father had been in prison in 1983 and 1984 the Tribunal's summary of the evidence does not indicate any assertion that he was there for a political reason. However the Tribunal may have understood the appellant to be making such an assertion. 6 The Tribunal questioned the appellant about the circumstances in which he left India. It seems that he had applied for visas to other countries and chose to come to Australia largely because he was granted a visa. He was asked how he had managed to leave India if, as he claimed, the police were looking for him. He said that he left from Delhi and that nobody knew that he was leaving. The Tribunal asked how he had managed to get a visa and again asked how he had been able to leave if the police were looking for him. He said that there were different police in New Delhi, and that he left secretly. His passport was issued in April 2001, but he did not leave until July 2002. The Tribunal asked why he had delayed departure if he were experiencing difficulties in India. He said that it was the election of the Congress Party government in February 2002 which finally influenced his decision. 7 The third aspect of his evidence to which I wish to draw attention is his statement to the Tribunal at the second hearing that after a raid on his home in March 2002 he was detained for 15 to 20 days and badly beaten. The Tribunal asked him when he had first raised these claims. He said that he had forgotten to mention them previously, and that this was the first occasion on which he had done so. He said that he had not mentioned them at the earlier hearing in the Tribunal because there were problems with the interpreter. He had not mentioned them to persons advising him in connection with his application because, 'I don't know the procedures', and he was not sure that he had to mention everything. He also said that he had told the Tribunal at the previous hearing that he was beaten but that the message did not 'get across' because of difficulties with the interpreter. 8 The Tribunal did not accept the appellant as a witness of truth, primarily because it concluded that his claim to have been arrested was a recent invention. It appears to have accepted that he may have mentioned the beatings at the earlier hearing but considered that he had conceded not having mentioned the period of detention. There can be no doubt that the alleged incident was serious. One would have expected him to have mentioned the detention, had it occurred. The Tribunal cannot be criticised for inferring from the appellant's failure to do so at an earlier stage that it was a recent invention designed to bolster his case. 9 This finding would not necessarily justify the Tribunal in concluding that everything that he had said was untruthful. However it would be a basis for inferring that his evidence was generally unreliable. This appears to be the course which the Tribunal adopted. Its view was confirmed by concerns about his evidence dealing with the way in which he had left India. The Tribunal considered it inconsistent with his claim of harassment that he was able to obtain a visa and leave the country without difficulty. It also considered that if family members were being harassed in the way that he claimed, they would not have continued living in the area in which they had lived for 30 years. The reliability of the appellant's evidence was very much a matter for the Tribunal. I can see no justification for going behind its conclusion concerning that issue. 10 The Tribunal dealt separately with the three documents to which I have referred. It did not accept that the document relating to his father's imprisonment was a genuine document. This conclusion appears to have been at least partly based on the appearance of the document. The Tribunal's concerns were reasonable in the circumstances although no doubt care must be exercised in assessing documents from other countries, particularly in the case of a large emerging democracy such as India where office procedures and standards may not be the same as those which obtain in Australia. However the real basis underlying the Tribunal's rejection of the document was its rejection of the appellant as a reliable witness. The only evidence as to the authenticity of the document could have come from him, and the Tribunal was not willing to act on his evidence. Similarly, the reliability of the affidavits depended upon his evidence as to their provenance. It is not possible to challenge the Tribunal's conclusion that they did not offer reliable evidence of the facts contained in them. 11 The effect of these findings was that there was no reliable evidence upon which the Tribunal could act in concluding that the appellant had a well-founded fear of persecution for a Convention reason. 12 I have given some thought to the relevance to this case of considerations such as those addressed by the Full Court in Rajadurai v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 118. In particular I have considered the extent to which it was obligatory or desirable that the Tribunal address the appellant's claim to have a well-founded fear of persecution and the possibility that some or all of his claims may have been true, notwithstanding the Tribunal's view of him as a witness. In the context of this case that is not an exercise which could have been rationally undertaken. Once the appellant's evidence was held to be unreliable there was nothing, apart from the country information, upon which the Tribunal could act. The best that the Tribunal could make of that evidence from the appellant's point of view was that he might have a well-founded fear of persecution, by which I mean that there might be a bare possibility of it, as there would be in the case of anybody of the appellant's background coming from the Punjab. That would not be a proper basis for concluding that the appellant had the required well-founded fear. 13 I turn to the appellant's grounds of appeal. Given my view that the Tribunal's decision depended upon its finding as to his credibility it is difficult to imagine any basis upon which judicial review could be available. The grounds of appeal are a little difficult to understand. The first ground seems to be that the Tribunal was not entitled to reject the whole of the appellant's claim by virtue of its finding of recent invention. I have explained my understanding of the Tribunal's process of reasoning. This ground offers no basis for any valid criticism of the decision. The second ground appears to be that the Tribunal acted unreasonably. This is a further attack upon the reasoning process to which I have referred. Again it poses no valid basis for an attack upon the decision. 14 Some aspects of the appellant's written submissions suggest an assertion that the Tribunal must, notwithstanding a fatal finding as to credibility, still proceed to address all other aspects of the application. As a general proposition I do not accept that proposition as correct. In any event, in this case the determination of issues of credit effectively resolved all relevant matters raised by the appellant. The appeal must be dismissed. 15 I propose to order that the costs be taxed. What that means is that the court officer will eventually fix them. That can be an expensive process in itself. It would be more sensible from the appellant's point of view if he were to take advice and then see if he cannot negotiate a figure with the Minister. 16 I order that the appellant pay the first respondent's costs of the appeal. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.