FEDERAL COURT OF AUSTRALIA

SZDZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1782

SZDZY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ANOR

NSD 1800 OF 2005

GRAHAM J

5 DECEMBER 2005

SYDNEY

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The Appellant pay the First Respondent’s costs.

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

REASONS FOR JUDGMENT

1                     The appellant was born in Murtzapur Kurukshetr in India on 10 February 1980.  He claims to be able to speak, read and write Punjabi and Hindi.  He indicates that he has some limited ability to express himself in and to understand the English language.

2                     The Appellant secured an Indian passport on 22 October 1998.  He entered Australia on 17 January 2004, travelling via Singapore on his Indian passport and “a tourist visa” issued to him in Mumbai on 12 January 2004.

3                     On 29 January 2004 the Appellant applied for a Protection (Class XA) Visa.  That application contained extensive material in handwritten form dealing with why the Appellant left India, whom he thought may harm or mistreat him if he went back to India and why he thought that harm or mistreatment may befall him if he went back.  His application for a protection visa was considered by a delegate of the Minister, who refused that application on 4 March 2004.

4                     On 25 March 2004, the Appellant filed an application for review of the Minister's delegate's decision with the Refugee Review Tribunal (“the Tribunal”).  In that application he stated his reasons for making his application as follows:

“I believe I am a refugee because as I told the Department of Immigration and Multicultural and Indigenous Affairs I belonged to the Haryana Vikas Party and was a youth worker.  My party worked against the Congress and the INLO.  Because of my involvement in politics I have been arrested by the authorities and locked up illegally for days.  I have had the security forces and the police treat me in a most inhumane manner.  I have been subjected to beatings, electric shocks and have even been drowned in a big gallon of water.  I also told the DIMIA that in October 2003 I was beaten very badly by my political opponents.  I was kidnapped and taken away.  I was threatened by them that they would kill me.  After this attack I was in hospital for two days.  I have also suffered because due to my political activities my family have also been targetted.  Our political opponents have got the police to trouble my family members.  I was very afraid that due to my activities my father or mother would be seriously hurt by the police.  There are a number of other incidents that have happened to me.  I have now engaged a migration agent and he will prepare my submissions to present to you.  I know that because of the Muslim fear as well as my affiliation in politics I will be persecuted in India.  That is why I claimed for protection visa in Australia.”

5                     When I invited the Appellant to address me in support of his appeal to this court from a decision of the Federal Magistrates Court, I asked the Appellant to explain what he meant when he contended in his written submissions that he had been denied natural justice in the Tribunal.  His response was to the effect:

“I could not obtain proof of evidence, for example, some letters from India. I asked the Tribunal for more time.  The Tribunal said, I don't know whether they gave me some time or not. Those documents would have supported my refugee claim. I could have obtained those documents from my village and the member of parliament for the local area. Those documents could have been quite crucial if I had them here. Those documents could have confirmed my refugee claim.”

6                     As can be seen from the above statements, the appellant points to nothing which, had it been before the Tribunal, may have influenced its judgment or decision in the matter.

7                     The transcript of the interview between the Tribunal member and the Appellant is before the court.  That transcript provides no support whatsoever for the suggestion that the Appellant sought more time from the Tribunal to enable him to advance any further material in support of his case.  The Tribunal affirmed the decision of the Minister's delegate and handed down its reasons for decision, dated 31 May 2004, on 23 June 2004. 

8                     One matter relied upon by the Appellant in his application for constitutional writ relief in the Federal Magistrates Court was an allegation that the Tribunal member had misinterpreted the information provided by the appellant that the symbol of his political party, the Haryana Vikas Party (“HVP”) was an elephant “...whereas I told the member that the party sign was a pair of children”.

9                     The transcript of the hearing before the Tribunal member includes the following:

“PG:  …when you're voting and you see on the ballot paper a number of symbols each party has a symbol what is the symbol of HVP party?

SS:  I don't remember exactly what it looks like, it was an elephant.”

10                  This evidence would seem to me to be entirely inconsistent with the matter raised by the Appellant in paragraph 2 of his statutory declaration, dated 5 January 2005, in support of his application for relief in the Federal Magistrates Court.  The Tribunal made a finding of fact in relation to this rather basic issue saying:

“He was unable to identify the party symbol, a pair of children, suggesting that it might be an elephant.”

11                  The Tribunal referred to the Applicant's claims including a claim that he had been kidnapped by Congress Party people in October 2003 and that he had been harassed by Muslims.  His evidence before the Tribunal in relation to these matters included the following: 

“PG:  You say you've had problems with the Congress Party.  Can you tell me what happened?

SS:  When I was going for campaign for the party with the leaders we were being harassed by people belonging to Congress Party.

PG:  Can you tell me what happened?

SS:  We used to go out for campaign, they were also out for campaign and on few occasions we had a confrontation with them and we had a fight with them.

PG:  You claim that you were detained. Can you tell me the circumstances of this?

SS:  You mean to say when I was detained.

PG:   Yeah and why?

SS:   I was arrested in October 2003.

PG:   By who?

SS:   By the people belonging to the congress party.

PG:  Were these police man or just congress party member?

SS:  We were being harassed by people belonging to the security force and police man also collaborating with them.

PG:  Tell what happened to you?

SS:  After I was arrested they tortured me they gave me electric shock on my head and on my feet.

PG:  Is this in the police station?

SS:  No that was some where else.

PG:  Whereabouts?

SS:  I don't know the place because they were taking us in the night time very far away.

PG:  What happened to you after they tortured you?

SS:  After that my parents told me that this country is not good for you. You should leave this country.

PG:  So were you detained or kidnapped on any other occasion?

SS:  I told you about October 2003.

PG:  Any other occasion in which you were detained?

SS:  They caught me two or three times.

PG:  Can you tell me when?

SS:  I don't remember the date.

PG:  You say you've had problems with Muslims as well.  Can you tell me what happened with the Muslims?

SS:  They were also collaborating with them and they were coming to our house in the night time and they were threatening us and beating them.

PG:  Who were collaborating with whom?

SS:  It could be that they were collaborating with congress party but I'm not sure.

PG:  They came to your house, what did they do when they came to your house?

SS:  They were beating us up, they were taking me away from my home.

…

PG:  ... Can you tell me what happened when the Muslims took you away?

SS:  They used to take me to a jungle which is about 8 kilometres away from our home and they were beating me up.

PG:  Why were they beating you up?

SS:  They were annoyed with me that I was forcing their youth to join our party. They did not like this.

PG:  ... So what do you feel would happen to you if you went back to India?

SS:  I have a fear of life.

…

SS:  ...I have a fear for the people belonging to congress party as well as from Muslims who used to kidnap me and torture me.

PG:  It would be possible for you to move somewhere else out of your state and work elsewhere.

…

SS:  The congress party people they have strong links everywhere they can even find out where I'm living.”

12                  Whilst the above evidence indicates that the appellant made claims that he was being harassed by people belonging to the security force with the collaboration of the police and also by Muslims it seems clear that his concern was about being harassed by members of the Congress Party and by Muslims in his local area.

13                  The Tribunal considered the Appellant's claims and accepted that he was connected with the HVP.  The Tribunal also found that it was possible that he suffered some harassment from supporters of opposing parties, however, it did not accept that he was targeted by the security forces for his political opinion.  The Tribunal was not satisfied that what had occurred to him amounted to persecution in the convention sense.

14                  Counsel for the Respondent has drawn the Court's attention to a judgment of Von Doussa, Moore and Sackville JJ in Chand v Minister for Immigration and Ethnic Affairs in which the Court found that the Tribunal was required to evaluate all the evidence put before it.  The court pointed out that where there was conflicting evidence questions of credit of witnesses may have to be resolved.  It also pointed out that the Tribunal was entitled to attribute greater weight to one piece of evidence as against another and to act on its opinion that one version of the facts was more probable than another.

15                  Counsel for the Respondent has also drawn the Court's attention to the joint judgment of Gummow and Hayne JJ in the High Court in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [197] where their Honours made observations about challenges to factual findings by the Tribunal.  Their Honours pointed out that the weight to be given by the Tribunal to various pieces of information was a matter for the Tribunal.

16                  Insofar as the Appellant seeks to challenge factual findings of the Tribunal on this appeal, his case must fail in circumstances where it was open to the Tribunal to make the findings which it did make. 

17                  The Tribunal also concluded that there was freedom of movement of citizens within India which allowed an opportunity to the Appellant to relocate to some other place within India where he may safely live free from any fear of persecution for reasons of political opinion. 

18                  The Tribunal concluded that it was not satisfied that the Appellant was a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol. 

19                  On 15 July 2004, the Appellant filed an application in the Federal Magistrates Court for judicial review of the Tribunal's decision.  On 19 December 2004 the Appellant filed an amended application, which was heard by a Federal Magistrate on 31 August 2005.  The Federal Magistrate’s decision, handed down on 15 September 2005, dismissed the Appellant's application for judicial review and ordered the Appellant to pay the Respondent's costs in an amount of $4800. 

20                  Counsel for the Respondent has drawn my attention to paragraph 34 of the Federal Magistrate's decision in which reference has been made to the decision of this Court in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at 11.  The learned Federal Magistrate summarised that decision by saying:

“The question of the accuracy of independent country information is one for the Tribunal and not for the Court.  It is not jurisdictional error for the Tribunal to base a decision on independent country information that is not true.  The question of the accuracy of the independent country information is one for the Tribunal, not for the Court.  If the Court were to make its own assessment of the accuracy of the independent country information it would be engaging in merits review.  The Tribunal is not bound by the rules of evidence in conducting its review and may obtain information it considers relevant.”

21                  Apart from the matter to which I have earlier referred, the Appellant has indicated on two occasions when invited to supplement his written submissions that he has nothing further to add.  The Appellant filed a notice of appeal to this court on 26 September 2005 and in support of that notice of appeal he filed brief written submissions dated 15 November 2005.

22                  Insofar as those submissions seek to challenge findings of fact made by the Tribunal the appeal must fail for the reasons earlier indicated.  The only additional matter on which the Appellant appears to rely is his assertion that the country matter relied upon by the Tribunal was old country information and that updated country information would throw a different light on the matters taken into account by the Tribunal.

23                  As earlier observed, it was not the function of the Tribunal to seek to locate further country information and it was not jurisdictional error for the Tribunal to base its decision on independent country information that may happen to be wrong.  As indicated earlier, there appears to be no basis whatsoever for a submission that the Appellant was denied natural justice in relation to the question of country information.  There was nothing before the Tribunal to suggest that the Appellant wanted an opportunity to provide supplementary information.

24                  The material which the Appellant put before the Tribunal was simply not sufficient to satisfy it that, owing to a well-founded fear of being persecuted for reason of political opinion, the Appellant was unable or owing to such fear unwilling to avail himself of the protection of India.  In the circumstances the appeal should be dismissed with costs. 

Associate:

Dated:              13 December 2005

The Appellant appeared in person.