FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 1266

DALJEET SINGH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

T14 of 2001

FRENCH, MARSHALL and GYLES JJ

24 AUGUST 2001

BRISBANE

THE COURT ORDERS THAT:

1.         The appeal is dismissed.

2.         The appellant is to pay the respondent's costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

FRENCH J:

1                     This is an appeal from a judgment given by Heerey J on 30 March, in which he dismissed an application by the appellant for an order of review, under Part 8 of the Migration Act 1958 (Cth)of a decision of the Refugee Review Tribunal which had been made on 29 September 2000, affirming a decision of a delegate of the Minister not to grant the applicant a protection visa.  An earlier application for review by the Tribunal had been refused on jurisdictional grounds but that decision was set aside by the Court.

2                     It is not necessary for present purposes to canvass in any detail the factual aspects of the appellant's claims before the Tribunal and the Tribunal's findings of fact in respect of them.  They are set out comprehensively in the Tribunal's reasons and in his Honour's reasons for judgment. In essence, the appellant, who is a citizen of India, came to Australia in December 1998 claiming to be at risk of persecution in India by reason of the wrong belief of police in the region from which he came that he was associated with militant Sikh separatists.  On that basis it was said that he had a well-founded fear of persecution by reason of an imputed political opinion and, alternatively, by reason of his Sikh religion.

3                     His application for review of the decision not to grant him a protection visa was rejected by the Tribunal on grounds related to his credibility and the evidence that he sought to produce to support his claims, in particular, a letter from someone he said was a lawyer in India, and an alleged warrant for his arrest.  In addition, the Tribunal referred to country information relating to the status of Sikh separatism in India and the position of Sikhs at the time that the decision was made.

4                     His Honour in reviewing the Tribunal's reasons was not satisfied that there was any ground of review available within the permitted grounds under s 476 of the Migration Act.  The notice of appeal against his Honour's decision asserts error of law in respect of the contention that there was no evidence before the Tribunal to support the decision which it made.  In that respect, the finding of the Tribunal that the alleged warrant for the arrest of the appellant was not authentic is said to have been a finding on a particular fact in respect of which the Tribunal was bound by law to make a finding to the contrary, this by way of application of s 476(4)(a).

5                     It is sufficient to say that the attempted application of that limitation on the no evidence ground, s 476(1)(g), is misconceived for the reasons which his Honour gave.  That issue apart, the other matters which have been canvassed by counsel for the appellant invite the Court into the impermissible territory of review of the Tribunal's findings of fact, and are in large part complaints that the Tribunal failed to accept the evidence of the appellant.  In my opinion, the appeal should be dismissed.

marshall j:

6                     For the reasons given by Justice French, I agree that the appeal should be dismissed.

gyles j:

7                     I also agree.

Associate:

Dated:              24 August 2001