SZOOK v Minister for Immigration and Citizenship

Federal Court of Australia|2011-02-14|Before: North J

REASONS FOR JUDGMENT 1 Before the Court is an appeal from a judgment of the Federal Magistrates Court, delivered by Scarlett FM on 16 November 2010. The federal magistrate dismissed an application for review of a decision of the Refugee Review Tribunal, made on 21 July 2010. The Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Citizenship, not to grant the appellant a protection visa. 2 The appellant is a citizen of India, who follows the Sikh religion. He arrived in Australia on 12 November 2009. He filed an application for a protection visa on 21 December 2009. His claims were set out in a statement attached to the visa application.

THE CLAIMS 3 In his statement the appellant explained that he was born in 1990 in Punjab. He explained that he belonged to a very religious family of extremist Sikhs. He said that they had a severe clash with the Hindu Shiv Sena party, which he claimed is part of the Bharatiya Janata Party (BJP). He said that his father was arrested and his uncle was shot dead by the Indian security forces. The appellant said he was a member of the student wing, known as the Khalistan Student Movement and that the members of that movement had many clashes with the Hindu Student Federation. He claimed he was the main and active member of his student party. He said he was an activist in his college and was well known to the Hindu Student Federation. He claimed that the Hindu Student Federation wanted to kill him. He said that he was on a hit list and had received many threats of death. He said that his house had been raided and that he has a fear for his life at the hands of the Hindu Student Federation. He claimed that he was warned by the Hindu Student Federation that he would be killed, that his name was on a hit list, and that he had been searched by them a couple of times.

THE DECISION OF THE DELEGATE 4 The appellant was invited to an interview with the delegate of the first respondent. He did not accept the invitation. On 18 March 2010 the delegate refused his application for a protection visa. The decision record, which was sent to the appellant, outlined the reasoning of the delegate. In the decision record, the delegate referred to country information concerning the situation in the Punjab and also country information concerning the possibility of internal relocation for Sikhs in India. The delegate said: The applicant failed to respond to the invitation to an interview. As a result it has not been possible to determine the types of activities in which the applicant was involved, the details and dates related to his claims. There has been no opportunity to test the credibility of the claims. It is considered implausible that an applicant with such serious claims would forego the opportunity to discuss his case if his claims were genuine. 5 The delegate then referred to the fact that the appellant lived at the same address in India from his birth and that it was unlikely, if he held a genuine fear of persecution, that he would have remained at the same house. Shortly afterwards the delegate said: There are no details of the positions that the applicant claims to have held, his duties, his profile, and whether he was involved in extremist or violent activities in India. The level of the applicant's involvement cannot be established and whether he would need to, or would be able to, relocate within India cannot be established on the available information. However, the country information indicates that relocation is possible for Sikhs within India.

THE DECISION OF THE TRIBUNAL 6 The appellant then applied to the Tribunal for a merits review of the delegate's decision. Before the hearing, in a letter dated 4 May 2010, the Tribunal sought further information relating to the dates on which the appellant was searched by members of the Hindu Students Federation and details of the hit list published by the Hindu Students Federation, on which the appellant's name appeared. The appellant responded to that inquiry by a letter dated 24 May 2010. In relation to the inquiry concerning the searches, the appellant said that his house was searched by the Hindu Praja Party of which the Hindu Student Federation is a part and that he had no memory of how many times he was searched in his house. Then he said that it was not possible for him to get a copy of the hit list published by the Hindu Students Federation. 7 The appellant did not attend the Tribunal hearing, despite being advised of it. The hearing was conducted on 19 July 2010. On 21 July 2010 the Tribunal delivered its decision. The Tribunal set out the background of the case and the contents of the statement accompanying the visa application. It recorded the fact that the appellant did not attend an interview with the delegate. It set out the letter of request for further information sent by the Tribunal to the appellant and the appellant's response. The Tribunal set out the details of the invitation sent to the appellant to attend the hearing by the Tribunal. The Tribunal then briefly summarised country information which indicated the existence of communal tension and violence in the Punjab between Sikh groups and government authorities, and also between Sikh and Hindu political groups. 8 In its reasons for decision, the Tribunal explained that it regarded it as appropriate to proceed to make a decision despite the non-attendance of the appellant. The Tribunal recorded that the appellant did not contact the Tribunal to advise of any reasons for his non-attendance, nor did he seek a further opportunity to appeal. The Tribunal then said: 31. The material supplied by the applicant gives an overview of his political beliefs but is very scant and lacks details as to harms which he has experienced in the past. He has not provided any details of the timeframe when these events occurred. He claims only the very general fear that he will be killed on return because his name is on a hit list. The applicant did not attend the Tribunal to give evidence regarding his claims which could have provided further information. When further information was sought, he has indicated he cannot recall significant details of the claimed past attacks on his home, other than that they were numerous. While there is a suggestion that the applicant's memory was affected by these events, there is no further evidence of this. 32. The evidence is too general in nature and lacking in detail as to claimed past events to be seen as reliable in the Tribunal's view. The applicant has not taken an opportunity to provide further detail. While there is evidence of communal tensions between Sikhs and Hindus in India which has resulted in violence and harm to individuals, the Tribunal is not satisfied that the applicant is a person identified with any group advancing the Khalistan state, as claimed, or that he has ever suffered any harm as a result.

THE JUDGEMENT OF THE FEDERAL MAGISTRATES COURT 9 The appellant then applied to the Federal Magistrates Court for a review of the decision of the Tribunal. The application for review was heard on 16 November 2010. On this occasion the appellant did attend. He was not legally represented, but was assisted by an interpreter in the Punjabi language. The appellant relied on three grounds set out in the reasons of the federal magistrate as follows: 22. First, that he had a real fear of being killed, due to growing tensions between the communities of Sikhs and Hindus in India and, as such, the Applicant claimed that his case was not dealt with in accordance with the law and procedure, that there had been an error of law and the proper law was not applied. The Applicant claimed there had been a mistake of law, which was a jurisdictional and legal error. 23. The second ground claimed that the Refugee Review Tribunal failed to consider the evidence which the Applicant placed on the file and that there was a legal and jurisdictional error in the decision. The Applicant had completed all the requirements of being a refugee. 24. The Applicant's third ground claimed that the various legal issues were left unaddressed and, as such, the Court has the power to overturn the statement of decision made by the Tribunal. However, the amount of tensions and sectarian violence is admitted. 10 In his reasons for judgment, the federal magistrate explained at [40] that the appellant had been validly invited to a hearing before the Tribunal. The federal magistrate carefully examined whether the statutory requirements of ss 425 and 425A of the Migration Act 1958 (Cth) (the Act) and associated provisions had been complied with. The federal magistrate then observed that the appellant had given no explanation of why he did not attend the hearing before the Tribunal "except to say that he just missed it". The federal magistrate concluded at [44]: The Tribunal rejected the Applicant's application because there was insufficient evidence to grant it. I am satisfied that no jurisdictional error is disclosed.

THE NOTICE OF APPEAL 11 Then on 3 December 2010 the appellant filed a notice of appeal in this Court. He provided three grounds as follows: 1. That the Learned Federal Magistrate has failed to determine the applicant was persecuted for the reason of his religion. The appellant belongs to a religious family. The appellant was not of the extremists views. But the applicant was restrained to freedom of the religion, as such the applicants evidence was not read which resulted in the error of law. The learned lower court only upheld the decision of the respondents. As such the decision suffers from legal and jurisdication error because the respondents have failed to go into the evidence of the applicant. The respondents violates the principle of natural justice, this was not given any importance in the matter of the applicant. The judicial interference of this honourable court is requested in the instant matter. 2. That the Appellants submits that the applicant was many a times confronted by his opponents, and was harassed, this matter and the evidence of the applicant was not read while making a decision. This is an jurisdictional read with the legal errors. The applicants case was and is based on the conventional based reasons and was not given any importance. This issue remains unanswered. It is the duty of the tribunal to address all the issues which the applicant has placed before them. By not answering these issues this is a clear a case of legal and jurisdictional error. The applicants matter was rather confused with the issues of the extremists Sikhs and it was further decided in the statement of decision that the applicant was put in the Coolum of the Khalistan movement. Although this issue was not addressed in any statement of judgment or the statement of decision. This constitutes a legal jurisdictional error coupled with the legal error as many of the questions went unanswered. The decision was made in arbitrary manners. 3. That the Respondent did not applied the proper law and procedure. This has resulted in the error of the law. The applicant/appellant has fulfilled all four key elements of being a refugee. As the applicant/appellant has submitted in his statement of claim.

CONSIDERATION 12 The essence of the first two grounds of appeal is a complaint about the fact finding of the Tribunal. Although the first ground is couched in terms of the Tribunal failing to go into the evidence of the appellant, and the second ground is couched in terms of the evidence of the appellant not being read by the Tribunal, it seems that the fundamental complaint of the appellant is that the Tribunal did not accept his evidence. There is no basis for any conclusion that the Tribunal failed to examine or read the statement provided by the appellant or the letter which he provided to it. The Tribunal refers to both documents and examines the contents of them. 13 The third ground of appeal is unparticularised and does not disclose any available ground of appeal. To the extent that there were statutory provisions which had to be applied to the circumstances of the appellant's case, those provisions were examined by the federal magistrate and he correctly found that the statutory provisions had been complied with. 14 The appellant appeared in person at the hearing of the appeal. Again, he was not represented but was again assisted by an interpreter in the Punjabi language. He made some short oral submissions which, if it were necessary, may explain the fundamental complaint which was attempted to be reflected in the notice of appeal. Although the judicial review function of the Court was explained to the appellant, nonetheless his oral submissions complained that the Tribunal did not believe his story. He said that that story was true, that his life was in danger in India. He said that if he returned to India, he would be killed. He understood that he had made a mistake in not attending the hearing before the Tribunal and urged the Court to give him one more opportunity to take his case to the Tribunal. 15 The role of the Court does not permit it to revisit the facts found by the Tribunal. No grounds have been made out which demonstrate any relevant error made either by the Tribunal or the federal magistrate and consequently the appeal must be dismissed. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

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