FEDERAL COURT OF AUSTRALIA

SZESD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1406

SZESD v Minister for Immigration and Multicultural and Indigenous Affairs AND REFUGEE REVIEW TRIBUNAL

N 1198 of 2005

JACOBSON J

29 SEPTEMBER 2005

SYDNEY

THE COURT ORDERS THAT:

1.          The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

1.                       This is an appeal from a decision of Federal Magistrate Lloyd-Jones given on 20 June 2005 dismissing an application for review of a decision of the Refugee Review Tribunal (“RRT”) handed down on 18 December 2002.  The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. 

Background

2.                       The appellant is a Sikh male from the Punjab in India who arrived in Australia on 20 September 2001.  He lodged an application for a protection visa on 29 October 2001.

3.                       The appellant claims to have a well founded fear of persecution against the Indian government because of his membership since 1984 of the Khalistan Commando Organisation (“KCO”) which seeks a separate Sikh homeland.  He claims that as a president of the local branch Sikh activists have stayed, and stored ammunitions, at his house.  He claims that in 1992 the police raided his house and arrested the appellant and his brother and that whilst in detention he was tortured and falsely charged with harbouring extremists. 

4.                       The appellant claims that from 1993 he lived and worked in Dubai in the United Arab Emirates occasionally returning to India to determine the safety of the situation but the he was pursued by police.  When the police became aware of his location in Dubai in September 2001 the appellant had cause to and did move to Australia.

5.                       The RRT accepted that the appellant was a Sikh from India, that he had been living in Dubai, however, it had concerns about the appellant's credibility and found the appellant's claims exaggerated, vague and inconsistent.  The RRT cited as an example the fact that in his application for a protection visa the appellant indicated “N/A” to questions about whether he had been convicted of a crime or had charges pending against him, but in a later statement the appellant admitted that he feared being arrested and tried on return to India.

6.                       The RRT noted that at the hearing the appellant confirmed to the RRT that he was a member of the KCF and feared arrest and trial in India as a result of his illegal KCF activities.  However, he later claimed that he was forced to join and that his only involvement was in storing arms at his family's farm which he acknowledged was illegal.  The appellant said he knew nothing about the KCF except the name of the chief of the organisation in 1992 and he was unable to say when he ceased his association with the KCF. 

7.                       The RRT referred to three documents provided by the appellant shortly before the Tribunal hearing.  It gave no weight to the documents, observing that it was easy to get fake documents in India and the appellant seemed to know little about the contents of the documents.  An unsigned affidavit from the head man of the appellant's village stated that the appellant "is" a member of the KCF but this was inconsistent with the appellant's own evidence that he had not had association with the KCF for over a decade. 

8.                       The RRT considered that the arrest warrant was of poor quality and found it implausible that such a warrant would be issued "out of the blue" nine years after the alleged incident, after the appellant had appeared in court and as all the other evidence suggested that the case was closed.  Also, the appellant did not claim in his application for a protection visa that he was wanted by the authorities. 

9.                       The RRT did not accept that the appellant was a member of the KCF.  It observed that in addition to rejecting the documents relating to this claim, the RRT found the appellant's evidence about this matter to be unsatisfactory.  In particular there was no mention of the KCF in the application for a protection visa and his oral evidence at the hearing did not support his claim because he knew nothing about it.

10.                   The RRT accepted that the appellant might have stored arms for others who may have belonged to the KCF but it did not accept that this activity amounted to membership of the KCF by the appellant.  The RRT found it plausible and consistent with independent country information that the police discovered weapons and charged the appellant.  However, the RRT found the appellant's evidence about the case against him for storing arms was unsatisfactory. 

11.                   In his application for a protection visa the appellant claimed he was falsely charged with harbouring extremists.  At the hearing the appellant stated that the case against him was finished but on realising that this might "undermine his claim" the appellant said he did not know if it had finished but the lawyer said it was.

12.                   The RRT rejected the appellant's claim to be a member of the KCF and found that the case against him was closed.  It noted that the authorities took activities of the KCF seriously and observed that if the appellant was a member of the KCF, or if the case remained open, this would be inconsistent with the fact that he had been allowed to retain his passport, emigrate to the UAE and leave India and openly return on a number of occasions. 

13.                   The RRT concluded that the appellant did not have a well-founded fear of arrest and trial upon return to India in relation to arms activities or for being a member of a terrorist organisation.  It considered it to be implausible that the authorities would have retained or resumed interest in the appellant for an arms incident a decade ago.  The RRT observed that even if it was wrong in its conclusion and the appellant was arrested and charged upon return to India, the appellant had access to adequate state protection and the judiciary was independent.  Accordingly, if he were prosecuted it would be according to laws of general application and not persecution within the meaning of the Convention.

14.                   Finally, the RRT observed that in any case it considered it reasonable in the appellant's circumstances to relocate elsewhere if he feared harm or harassment in his home area.  The RRT rejected the appellant's assertion that the police would "find him any where in India" because this was not supported by the appellant's own evidence that he was not a person with a high militant profile.  Nor was it supported by independent country information which suggested that it was unlikely that the Punjabi police would pursue an individual to another part of the country. 

Federal Magistrate’s Decision

15.                   Federal Magistrate Lloyd-Jones found no jurisdictional error in the RRTs reasons.  The learned Magistrate rejected the appellant's claim that the RRT had fallen into error in failing to consider whether the appellant committed a "serious non-political crime", pursuant to Article 1F of the UN Convention for Refugees (1951).  He noted that the RRT had referred to this article as it was faced with a claim that the appellant was a member and office-holder of a terrorist organisation so it needed to be mindful of this article in its deliberation. 

16.                   His Honour observed that the RRT brought this to the appellant's attention at the hearing and he commented at [20] that the RRT did nothing more than mention that this would be a consideration that would have to be taken into account if evidence of this nature existed.  His Honour concluded that the RRT did not make a finding on the subject and, therefore, it did not need to determine whether the acts were serious non-political crimes.

17.                   The Federal Magistrate rejected the appellant's claim on the application of review of bias.  He referred to and applied the principles stated by the High Court in Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 435 and the decision of Allsop J in NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [14].

18.                   The learned Magistrate considered a submission by the appellant that the RRT had fallen into error in giving no weight to documents submitted by the appellant; reliance was placed on section 424A of the Migration Act 1958 (Cth) (“the Act”).  However, the learned Magistrate concluded that the appellant's complaint related to the RRTs finding about the validity of the documents which was a finding of fact and not function of the Court to review.  See NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10].

Discussion

19.                   Four grounds are set out at the notice of appeal filed on 19 July 2005.  The first is that the Federal Magistrate failed to consider the submissions of the appellant's solicitor.  It is said that the appellant was denied the benefit of a fair hearing. 

20.                   This ground of appeal cannot succeed.  It is clear from the judgment that the Federal Magistrate addressed the appellant's submissions.  He was entitled to accept or reject them.  There is no evidence to suggest that the appellant was denied a fair hearing.

21.                   The second ground of appeal is that the RRT failed to satisfy itself about information provided by the appellant which went to proving the classification of KCF as a terrorist organisation.  However, the RRT is not obliged to refer to every piece of information it considered, nor is it required to refer to every contention in its written reasons; see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46] per French, Sackville and Hely JJ.

22.                   As the learned Federal Magistrate correctly observed at [16] to [21] of his reasons, although the RRT raised the possibility that Article 1F might be relevant to the appellant's claim, it made no finding about the issue.  Accordingly there was no error by the RRT in failing to refer to the documents or to the matters relied upon by the appellant.

23.                   In any event, as Mr Reilly submitted, the submission is a curious one because if the appellant did fall within Article 1F he would not be eligible for a protection visa.

24.                   Third, it was submitted that the Federal Magistrate overlooked the appellant's argument that the RRT contradicted itself in its reasons.  This seems to be a reference to the finding that the appellant was not a member of the KCF, whereas the RRT accepted that the appellant stored weapons for boys who may have belonged to the KCF and that the appellant was charged with an offence relating to this incident. 

25.                   However, it is clear from the RRTs reasons that there was no contradiction in its conclusions.  Insofar as this is submitted to be an illogical finding it cannot succeed.  These were matters of fact for the RRT.  The RRT was entitled to conclude that the appellant was not a member of the KCF, but that he may have assisted KCF members by storing arms for them.

26.                   The fourth ground of appeal is that the Federal Magistrate totally ignored the appellant's solicitor's argument about the RRT findings relating to "serious non-political crime".  However, as I said earlier, I can see no error in the approach of the learned Federal Magistrate at [16] - [21]. 

27.                   In his written submissions filed on 26 September 2005 the appellant's solicitor made a submission which appears to take issue with the RRTs finding that it was open to the appellant to re-locate.  This was not a ground of appeal.  But in any event the short answer is that the RRT made a finding which was open to it on the evidence.  I can therefore discern no jurisdictional error.

28.                   A further submission which was put, although it is not contained in the amended notice of appeal, is that there was said to be a contravention of section 424A of the Act.  Reference was made to the decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 (“SAAP”); no particulars were provided. 

29.                   As I understood the submission put by the solicitor for the appellant it was that the RRT had doubts about the appellant's membership of the KCF and this should have been put to the appellant.  The submission was that this should have been put to the appellant at the hearing.  That does not seem to me to be consistent with what the High Court said in SAAP but I will proceed upon the basis that the effect of the submission is that it should have been included in a letter providing particulars pursuant to section 424A.

30.                   Before turning to that I should observe there was no transcript of the hearing before the RRT and the submission as put to me orally would have to fail on that account.  In any event the information which the appellant's solicitor submits ought to have been put to the appellant was not "information" within section 424A of the Act. 

31.                   It is well established that information under section 424A does not encompass the Tribunal's subjective appraisal or thought processes.  Nor does it encompass a failure to mention a matter to the RRT.  The relevant principles were extracted by Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24]; see also SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306 per Hely J at [10] and [11].

32.                   Insofar as the reasons which I have set out do not cover all of the submissions put to me by the appellant's solicitor, I am satisfied that all of those submissions sought to suggest as grounds of jurisdictional error factual findings made by the RRT.  Although it was suggested to me that they fell within the well-known statement of principle in Craig v State of South Australia (1995 ) 184 CLR 595 at 179, I reject the submission.  It is well-established that a wrong finding of fact, even if there was such an incorrect finding, does not amount to jurisdictional error.

33.                   The order of the Court will be that the appeal be dismissed with costs.

Associate:

Date:                30 September 2005