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[2007] FCA 2036
Federal Court of Australia
2007-12-18
Jacobson J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 This is an application for leave to appeal from orders of Scarlett FM made on 9 July 2007 refusing to grant the applicant leave to reinstate his application for review of a decision of the Refugee Review Tribunal. 2 The Tribunal's decision was dated 30 August 2006 and was handed down on 20 September 2006. The Tribunal affirmed a decision of a delegate not to grant the applicant a protection visa. 3 The applicant sought judicial review of the decision of the Tribunal. That application was listed for final hearing before Scarlett FM on 20 February 2007 but the applicant did not attend the court on that day. The Federal Magistrate dismissed the application because of the applicant's failure to attend the hearing. 4 The applicant is a citizen of India who arrived in Australia on 28 February 2006. He applied shortly thereafter for a protection visa but a delegate of the Minister refused to grant the visa on 27 April 2006. 5 The applicant claims to have a well foundered fear of persecution in India because of his political profile. He claims to be a Sikh from Punjab who belongs to a family of freedom fighters. He claims that in 1994 he joined the Khalistan Commando Force and that he was later detained and tortured. 6 The Tribunal accepted the applicant's evidence about the nature and level of his involvement with the Khalistan movement. It accepted that he had joined the Khalistan political party in 1994 and that he had been detained by the police in 1995. The Tribunal also accepted that the applicant's brother joined the Khalistan party and that his whereabouts were unknown. 7 The Tribunal made reference to country information about the movement for a separate Sikh state. The movement is called the Khalistan movement and comprises a number of pro‑Khalistan groups. The Tribunal accepted, on the basis of the country information, that there was a period of widespread violence in the Punjab which began in 1984 and that there were serious human rights violations and that Sikhs were persecuted. 8 However, the Tribunal found that the country information indicated that the human rights situation in the Punjab had returned to a state of "normalcy" by 1998 and that independent country information showed that the political and human rights situation had improved markedly since the end of the period of militancy. 9 The Tribunal also referred to country information which indicated that people who were not high profile militant suspects were not at risk in the Punjab and that Sikhs with some slight perceived connection to the militancy would not be targets for the Punjabi police. 10 The Tribunal accepted that the applicant and his brother were connected with the militancy in their support for a separate Sikh state until the mid‑1990s, but it did not accept that the applicant's activities resulted in him being perceived as a leader of a militant organization. Nor did it accept that he was suspected of anti‑state or terrorist activities. 11 The Tribunal concluded that the applicant was not of interest to the Indian authorities at the time of his departure from India in February 2006. It was satisfied on the evidence that the applicant would not face serious harm if he returned to the Punjab. The Tribunal then said: The Tribunal found the applicant's evidence about collecting funds in Cambodia for the Khalistan movement vague and general. The applicant claimed that he visited people's houses whilst in Cambodia and collected funds, although he did not directly ask for money. The applicant did not provide any evidence as to who was asked to donate funds, and what funds were collected or what information was given to donors. The Tribunal finds that he has fabricated his claim about his political activity in Cambodia. The Tribunal concludes that this evidence was submitted to bolster the applicant's claims.
12 The Tribunal went on to say that the applicant had not made any claims that he intended to return to India and become a militant, and the Tribunal did not accept that he engaged in activities of that nature in the past. 13 The Tribunal did not accept the applicant's claim that the Punjabi police continued to have an interest in him. It was of the view that the chance that the applicant would be persecuted for his political opinion in the reasonably foreseeable future was remote. 14 The Federal Magistrate set out the background to the application to reinstate the application for judicial review. He recorded the reasons given by the applicant for his failure to attend court when the matter was listed for final hearing and also when an earlier application for reinstatement was listed before the Federal Magistrate in June 2007. The Federal Magistrate was of the view that the applicant had not given a satisfactory explanation for his failure to attend the hearing and that he had not shown any reasonable prospects of success. 15 The Federal Magistrate gave attention to the question of whether the applicant's case had any merits at [11] of his reasons for judgment. He permitted the applicant to file an amended application for judicial review in order to determine whether there was an arguable claim of jurisdictional error. He observed at [11] that the applicant claimed that the Tribunal erred in law in failing to ask the applicant the correct questions and that the particulars of the claim put forward by the applicant related, in particular, to the passage of the Tribunal's reasons which I have quoted above. 16 The Federal Magistrate said at [12] that the applicant claimed, in his amended application, that the Tribunal did not ask the applicant any questions about who was asked to donate funds to the Khalistan movement or other questions relating to that topic, and that the finding made by the Tribunal was therefore not open to it. The Federal Magistrate also recorded at [12] the claim made by the applicant that the finding of the Tribunal relating to the lack of any statement about his intention to return to India was not open. 17 The Federal Magistrate was of the view that the matters put forward by the applicant did not give rise to any claim of jurisdictional error because they were based upon a misconception of the provisions of the Migration Act 1958 (Cth). In particular, the Federal Magistrate observed at [13] and [14] that the Tribunal did not have a duty to investigate the claim or make its own inquiries, and that it did not need evidence before it to make a finding that it was not satisfied ofthe necessary prerequisites in accordance with s 65 of the Migration Act. 18 The applicant is not legally represented. His application came before me on 27 November 2007. He requested an adjournment on that day because of the serious inconvenience he had suffered in the circumstances in which he was brought before the Court that day. He requested time to obtain legal representation. I thought it was appropriate in all the circumstances that were before me on that day to grant an adjournment and the matter was adjourned to today. 19 The application for leave to appeal is supported by an affidavit of the applicant sworn on 9 July 2007 which sets out the procedural history and explains the reasons for his failure to attend court on previous occasions. He says at [17] that the grounds of review which he raised in the Federal Magistrates Court were serious enough to constitute jurisdictional error in the decision made by the Tribunal. A draft notice of appeal is attached to the affidavit. It repeats, in substance, the two alleged errors which were rejected by the Federal Magistrate. The draft notice of appeal also raises as a further possible ground a breach of s 424A of the Migration Act by the Tribunal. 20 The short answer to the first two grounds of appeal which the applicant wishes to raise is to be found in the observations of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [40]. The proceedings in the Tribunal were not adversarial. It was for the applicant to establish his claims for the Tribunal to reach the necessary state of satisfaction. If it did not do so, as was the case, it was bound to refuse to grant the applicant protection visa. 21 The authorities of the Court have made it clear that as a general rule there is no duty on the Tribunal to carry out its own inquiries. This is not a case where the Tribunal failed to complete the exercise of its jurisdiction by omitting to take administrative steps which were necessary to complete the exercise of jurisdiction. See SZJBA v Minister for Immigration & Citizenship [2007] FCA 1592 at [48] to [56]. 22 As to the ground which relied on s 424A of the Migration Act, the draft notice of appeal does not give any particulars of the information said to enliven that provision of the Act. When the applicant was before me on 27 November 2007, I asked him what was the information of which particulars were required to be given under section 424A(1). Whilst I take into account the fact that the applicant was not legally represented when he answered that question, it is necessary to record that he told me only that the Tribunal did not consider his claim properly and that it thought he was not a credible witness. 23 Having considered the matter myself, I am unable to see that a ground of review by reason of breach of s 424A could be made out. Insofar as the applicant seeks to contend that the Tribunal was bound to express its doubts about his evidence to him and give him an opportunity to comment, that does not constitute "information within the well established authorities." See VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24]. See also SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at [18]. 24 When the applicant appeared before me this morning he said only that his claims for refugee status are true and that the Tribunal wrongly ruled against him. He insists that his claims are still true. It is clear from what I have set out above that the decision of the Federal Magistrate is not attended by sufficient doubt to warrant the grant of leave to appeal. Whilst I understand that the applicant considers the decision of the Tribunal to be unjust, he does not point to injustice of the kind which would enliven the discretion to grant leave to appeal. It follows that I propose this morning to dismiss the application for leave to appeal. 25 The orders I will make, therefore, are that the application be dismissed with costs. 26 I will order the applicant to pay the costs of the first respondent pursuant to Order 62, rule 4(2)(c), assessed in the amount of $2000. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.
Solicitor for the respondent: Sparke Helmore
Date of Hearing: 18 December 2007
Date of Judgment: 18 December 2007
SZJUR
Minister for Immigration & Citizenship