SZRIE v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 The appellant is a citizen of India who arrived in Australia on 2 August 2009 on a Subclass 573 student visa. He applied for a protection (Class XA) visa on 9 June 2011. The appellant's claim, of fear of persecution was based on his political opinions. He claimed that he was an active member of the All India Sikh Student Federation (AISSF) and a supporter of the Khalistan Movement, which seeks a separate Sikh nation. He appeals from the decision in the Federal Magistrates Court dismissing his application for review of the decision of the Refugee Review Tribunal (the Tribunal), which upheld the refusal of a protection visa by a delegate of the Minister for Immigration and Citizenship (the Minister). 2 In order to understand the decision of the Federal Magistrate it is necessary to consider the basis of the Tribunal's decision. The Tribunal decision was summarised at [12]-[20] of the Federal Magistrate's decision: SZRIE v Minister for Immigration and Citizenship [2012] FMCA 940. The Tribunal made it clear that, for the reasons it elucidated, it did not believe that the appellant was telling the truth. It reiterated this conclusion with respect to the appellant's reasons for having left India, the reasons for his claimed fear of returning to India and his history of interrogation and mistreatment by the police. It did not accept that members of opposition parties in Punjab, including supporters of the creation of a separate Sikh nation of Khalistan, faced repression at the hands of the authorities. 3 It did not accept that the appellant had been threatened by members of other political parties. It did not accept that there was a real chance that if the appellant returned to India he would be threatened, injured, killed or otherwise persecuted by reason of his actual or imputed political opinion. The Tribunal's reasoning cited the appellant's evidence and was based upon the credibility of that evidence. 4 In his application before the Federal Magistrate, the appellant relied upon four grounds: [1] The Tribunal failed to consider an integer of Applicant claim, in failing to consider whether or not a Sikh in India was at risk of harm from radical Hindus, and not able to access effective protection whilst the Tribunal formed the view that the applicant was a credible witness. 2. The Tribunal had no jurisdiction to make the said decision because its 'reasonable satisfaction' was not arrived in accordance with the provisions of the Migration Act. 3. The member of the Tribunal erred in that it ought to have held that on the evidence before the Tribunal it was open to the Tribunal to find that the applicant was a refugee within the meaning of the Act. In such circumstances the Tribunal erred in that: (a) it failed to properly apply the consideration that applicant's for refugee status ought to be given the benefit of the doubt in circumstances where the Tribunal entertained the possibility that the applicant's claims are plausible, which was the case here. 4. The Tribunal has failed to investigate applicant claims, specially the grounds of persecution in India. Therefore, the Tribunal's decision dated 7 March 2012 was effected by actual bias constituting judicial error. Therefore the applicant submit that the Tribunal failed to analyse properly the 'future harm' the applicant may face if he has to go back to India. Hence, due to this failure, the Tribunal had committed a serious jurisdictional error by failing to assess or carry out the 'real chance' test, before dismissing the applicant clam. [Errors in the original.] 5 The Federal Magistrate dismissed the application after a consideration of each ground (at [28]-[59]). It is not necessary to discuss each aspect of the Federal Magistrate's decision, as the grounds of appeal differ in part from those before the Federal Magistrate. The grounds of appeal from the decision of the Federal Magistrate are that: 1. The FM failed to consider that the Tribunal had denied the applicant procedural fairness reaching adverse conclusions that applicant claims were implausible, being conclusions that were not obviously open on the known material. 2. The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the RRT. The Tribunal has failed to investigate Applicant claims, specially [sic] the grounds of persecution in India.