SZISM v Minister for Immigration and Citizenship

Federal Court of Australia|2007-02-16|Before: Nicholson J

REASONS FOR JUDGMENT 1 This was brought on as an appeal from a decision of a Federal Magistrate (Scarlett FM) made on 24 August 2006: SZISM v Minister for Immigration & Multicultural Affairs [2006] FMCA 1330. In that decision, his Honour dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) dated 3 March 2006 and handed down on 23 March 2006. In that decision the Tribunal affirmed the decision of a delegate of the first respondent not to grant a protection (class XA) visa to the appellant pursuant to the provisions of the Migration Act 1958 (Cth) (the Act).

Non-appearance of the appellant 2 When the appeal was called the appellant, who is unrepresented, did not appear. Directions were given for the appeal to be called and a search made for the appellant in the vicinity of the courtroom, in the registry and on the ground floor of the building. This was done but without locating the appellant. A telephone call was placed to the appellant at his telephone number on the record of the Court. The result was that it was ascertained that the number had been disconnected. The first respondent tendered a letter dated 12 February 2007 addressed to the appellant at his address on the record and sent by express post. The letter enclosed a copy of the first respondent's submissions, confirmed the date, time and place of the hearing of the appeal and stated that, in the event of his non-appearance at the hearing of the appeal, the first respondent would move for the dismissal of the appeal. 3 Authority for the dismissal of the appeal resides in s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth). I was satisfied that, in the terms of that paragraph, the appellant had failed to attend the hearing of the appeal. Accordingly I made an order to that effect and other orders appropriate to resolve the matter. 4 Section 25(2B)(bc) relevantly provides a power for a single judge or a Full Court to vary or set aside an order under par (bb). In view of that possibility counsel for the first respondent, whose written submissions are relied upon in what follows, accepted that there would be utility in my setting down my reasons on how the appeal would have fallen to be resolved on what is presently before the Court. What follows are those reasons.

The appellant's claims 5 The appellant is a citizen of India. On 17 August 2005 the appellant lodged an application for a protection visa. He claimed to have a well-founded fear of persecution because of his political opinion and religion. The appellant claimed that he came from a Sikh family who were persecuted by Hindus and the governments of the appellant's home State and neighbouring State. He claimed to have been the Youth President of the Shiromini Akali Dal Party and that he was involved in various activist events and demonstrations. The appellant's claims involved being assaulted and detained by the police and that he had received threatening letters by Hindu activists. The appellant claimed that on 4 June 2005 he gave a speech demanding that Sikhs have their own state and on 20 June 2005 the appellant was arrested, but subsequently was able to escape. In the aftermath of this event, his entire family was arrested and beaten. The appellant claimed to have applied for a visa to come to Australia in the last week of June 2005, fearing persecution by the police of his State and the neighbouring State. Furthermore, some other members of the appellant's political party were also arrested. The application was refused by a delegate of the first respondent on 3 November 2005.

Tribunal's reasons 6 On 1 December 2005, the appellant made an application for review in the Tribunal. The Tribunal did not accept the appellant was a credible witness and consequently did not accept he was a member of the claimed party, that he gave a speech at a rally or the accounts of his arrest and escape. The Tribunal found the appellant was not an impressive witness and that he struggled to give further details relating to his claims. The Tribunal did not believe the appellant was capable of delivering a speech at a rally as on the evidence provided at hearing, the appellant was unable to say much about the speech besides 'a few bland generalities'. The Tribunal noted the appellant had cut his hair and did not wear a turban and explained that only 'purified' Sikhs did not cut their hair. However, the Tribunal considered independent country information which suggested that not cutting one's hair is fundamental to the Sikh religion and found this was relevant to the appellant's credibility. The Tribunal stated in its decision that it put to the appellant that his evidence regarding the claimed arrest and escape was difficult to believe. The credibility of the appellant was also affected by the Tribunal's consideration of country information which suggested that persons with an arrest warrant were unable to leave with a passport in their own name. 7 The Tribunal accepted that members of the political party were arrested but did not accept they were arrested for their political opinion and found that there would be redress in the courts for wrongful arrest. The Tribunal considered country information suggesting that simply holding views in favour of an independent Sikh state would not lead an individual to be arrested or harassed. 8 Having regard to the fact the appellant cut his hair and did not wear a turban, the Tribunal did not accept the appellant was a religious Sikh. Although the Tribunal accepted the appellant was a Sikh, it did not find that Sikhs constituted a persecuted group in India at the time of the Tribunal's decision. 9 The Tribunal considered the appellant's reference to discrimination against Sikhs and that the appellant's family had land taken from them. However, the Tribunal consulted country information which indicated the existence of an independent judiciary and thus found the appellant's family would not be left without a remedy if their land had been taken unlawfully. 10 The Tribunal also found the appellant was able to move to Delhi as relocation was reasonable, particularly in light of the fact the appellant had lived and worked in Delhi on and off for three years. The Tribunal was not satisfied the appellant had a well-founded fear of persecution for a Convention Relating to the Status of Refugees, 1951 and the Protocol Relating to the Status of Refugees, 1967 (jointly, the Convention) reason and affirmed the decision not to grant a protection visa.

Federal Magistrate's reasons 11 The appellant filed an application for review in the Federal Magistrates Court on 19 April 2006. The application raised three grounds. The first ground alleged the Tribunal was wrong in not accepting the appellant's claims regarding his inability to deliver a speech and had misinterpreted his statements. The second ground asserted that the Tribunal was wrong in finding relocation was possible. The final ground claimed the Tribunal did not consider the facts that showed the Indian Government tortured members of the Sikh community and that the Tribunal did not show the appellant any adverse material. Before the Federal Magistrate, the appellant also sought further time to obtain documents and legal advice as the appellant was unable to have his mail redirected to him when he was absent from Sydney. 12 Scarlett FM heard the application on 24 August 2006. The appellant gave sworn evidence. On the same day, his Honour dismissed the application and ordered the appellant to pay the first respondent's costs. 13 His Honour rejected the appellant's application for an adjournment as the appellant was given an opportunity under the Refugee Review Tribunal Legal Advice Scheme but had not responded to an invitation to attend an interview with a barrister that was referred to him. Scarlett FM considered the appellant's explanation regarding his mail but found that the appellant being absent from Sydney was within the appellant's control. 14 In consideration of the appellant's grounds of appeal, his Honour found the appellant's grounds were attempts at challenging the factual findings of the Tribunal. It was up to the appellant to provide the Tribunal with information that the Government was torturing members of the Sikh community and the decision indicated that the Tribunal clearly showed the appellant the country information it relied on.

Grounds of appeal 15 On 14 September 2006 the appellant filed a notice of appeal in this Court which states the following: '1. The Refugee Review Tribunal has made procedural mistakes in considering my case. 2. Section 424A of the Migration Act was not applied correctly. 3. The Tribunal failed to provide natural justice. 4. The Tribunal made findings that are incorrect. 5. The Tribunal has denied me procedural fairness.' Grounds 1, 3 and 5 allege jurisdictional error on the part of the Tribunal arising out of a breach of the requirements of natural justice or a breach of the procedural requirements of the Act.

Procedural fairness: grounds 1, 3 and 5 16 No particulars have been provided by the appellant to support these grounds. No error of this sort is apparent. The appellant attended a hearing before the Tribunal during which the Tribunal member specifically put matters that were adverse to his claims to the appellant for comment. There was no failure on the part of the Tribunal to afford the appellant natural justice.

Section 424A of the Act: ground 2 17 The information which the Tribunal relied on in reaching its conclusions adverse to the appellant is independent country information and as such falls within the exception contained in s 424A(3)(9a). In any event, it appears from the Tribunal's reasons that it put the substance of each of the matters arising out of the country information to the appellant for comment.

Incorrect findings: ground 4 18 It lay within the province of the Tribunal to make findings of fact. Error of fact is not an error of law. Only if there was no evidence to support a particular finding of fact would the Tribunal be in error of law in making a finding of fact. It is not particularised by the appellant nor is it apparent that there was any absence of evidence to support the findings made by the Tribunal. The Tribunal rejected the appellant's claims on the basis of a finding of credibility adverse to the appellant. No reviewable error in the reasoning of the Tribunal has been demonstrated.

Conclusion 19 If the appellant had attended the hearing and had not made any submissions, the above reasons would have been the reasons for which I would have dismissed the appeal. However, as the appellant did not attend the hearing of the appeal, it was dismissed on the ground of that non-attendance, as set out above. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholson.

Federal Court of Australia Act 1976(Cth)ss 25(2B)(bb)(ii), 25(2B)(bc)

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