FEDERAL COURT OF AUSTRALIA

SZMLF v Minister for Immigration and Citizenship [2008] FCA 1875

Federal Magistrates Court Rules 2001 (Cth) r 44.12(1)(a)

Migration Act 1958 (Cth) 

Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 

SZMLF v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1528 of 2008

BUCHANAN J

10 DECEMBER 2008

SYDNEY

THE COURT ORDERS THAT:

The application for leave to appeal is dismissed with costs.

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

BUCHANAN J:

1                     This judgment deals with an application for leave to appeal against a judgment of the Federal Magistrates Court of Australia (‘the FMCA’) given on 9 September 2008 in which the applicant’s application for judicial review was dismissed under r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) on the ground that it did not raise an arguable case for the relief claimed (SZMLF v Minister for Immigration and Anor [2008] FMCA 1317).

2                     The applicant is a citizen of India who arrived in Australia on 21 August 2007 and applied, on 2 October 2007, to the Department of Immigration and Citizenship for a protection visa.  A delegate of the first respondent (‘the Minister’) notified the applicant on 24 December 2007 that his application for a visa had been refused.  The applicant applied to the Refugee Review Tribunal (‘the RRT’) constituted under the Migration Act 1958 (Cth) (‘the Act’) for review of the delegate’s decision.  In a decision handed down on 29 May 2008 the RRT affirmed the decision of the delegate that the applicant was not entitled to a protection visa.  On 25 June 2008 the applicant lodged his application for judicial review in the FMCA which was later dismissed on 9 September 2008. 

3                     The essence of the applicant’s claim for a protection visa was that, as a Sikh member of the Congress Party in Punjab, he will be persecuted due to his political beliefs, particularly by members of the Akali Dal political party which articulates Sikh claims and leads the independence movement in Punjab.  The applicant claimed that he had been abducted by political enemies who had threatened to harm him if he did not leave the area or change political parties.  It is clear from the delegate’s decision that the applicant’s claims were doubted by the delegate who said:

The applicant has not provided any evidence of his claimed political activity or any periods of detention related to such activity.  He has not indicated any politically related problems prior to February 2007 but has provided no explanation of why that would be so in the circumstances he claims.  On three occasions in the last four years he has visited New Zealand for stays of nine months or longer.  His daughter is married and is now a resident of that country.  Most recently he visited that country from February 2007 until January 2007.  He has not indicated that the made or considered making an approach to New Zealand authorities for asylum during any of his visits.  It is evident that he would have been back in India only soon before the election of February 2007 and this places doubt on whether, during that brief time, he could have actively campaigned for Congress to a substantially influential degree.  In such circumstance I find it doubtful that his political efforts would have been noted by Akali Dal and caused him to be kidnapped in the lead up to polling day, especially as there is no indication that he had previously been a political target of Akali Dal.  Also, the fact that he was able to depart the country without difficulty in August 2007 with a passport and visa in his own name is strong indication that he was not of any substantial adverse interest to authorities at that time.

Practical protection from harm is available in India, including Punjab.  India has effective judicial and law enforcement agencies, is governed by the rule of law and has an infrastructure of laws designed to protect its nationals against harm, including of the nature claimed by the applicant.  India has a functioning police force and an independent judiciary and I have found no evidence to suggest that the applicant would not have the practical protection of the Indian state.

4                     The delegate, moreover, was satisfied that it was reasonable, if necessary, for the applicant to relocate to another part of India.  In that connection the delegate said:

Most importantly, I am satisfied that relocation to another part of India is a relevant and reasonable option for the applicant.  The Indian Constitution guarantees Indian citizens the right to move freely throughout the territory of India and to settle and reside in any part of the country.  These rights are subject to restrictions as imposed by law in the interests of the general public.  Punjabi Sikhs are able to relocate to another part of India and as Sikhs are a mobile community there are Sikh communities all over India.

The applicant’s fear must be well-founded in relation to the country as a whole.  If there are parts of the country in which the applicant would be safe from persecution, and the applicant can reasonably be expected to relocate to those parts, he will not have a well-founded fear of persecution in relation to the country as a whole.

Country information, in conjunction with the applicant’s person circumstances, indicates that it is open to him to move to another area of India in order to escape any fears of harm that he may have.

5                     The delegate also said:

The applicant has been widowed for thirteen years.  His immediate family comprises a 48-year-old daughter in New Zealand and a 38-year-old son in India.  His visits to New Zealand and Australia evidence a capacity for travel.  I find no financial, logistical or other barriers that would prevent the applicant from reaching internal safety within India.  Country information indicates that the basic norms of civil, political, religious and socio-economic rights can be satisfied by the applicant settling in another state of India.

For the above reasons, I find that the applicant may reasonably relocate within India in order to find effective protection.  Therefore I find that the applicant does not have a well-founded fear of persecution for a Convention reason, in the reasonably foreseeable future, in India as a whole.

6                     The RRT also doubted the applicant’s claims.  Indeed it concluded, after an examination of those claims, that they were fabricated.  The RRT said:

38.               In sum, the Tribunal does not accept that the applicant held an important elected position in the Congress partying 2007, and does not accept that he was an influential member of the Congress Party who could influence voters in this area.  The Tribunal does not accept that he returned to India in January 2007 for reasons of campaigning in the election.  The Tribunal does not accept that he was arrested and detained in February 2007 order [sic] to restrict his influence and campaigning at the time of the election, or indeed, that he was arrested and detained at all.  The Tribunal does not accept that he had any political profile in 2007.

39.               In light of these findings the Tribunal does not accept that he was arrested and detained without charge on 4 occasions in 2007 (February, March, April, June) because of his political opinion or for reasons of his membership of a particular social group.  The independent information reinforces this conclusion as it shows that in Punjab State in recent years the political situation has been relatively peaceful compared with the past and suggests that Punjab generally “remained peaceful” and “free of major political violence” in 2007.  The election result was not surprising as a change of government at each election is the norm.  The Tribunal was not able to find any information, in the internet searches conducted, on the targeting of Sikh supporters of the Congress (INC) party in Punjab in recent times.  Sources suggest that tensions between Sikhs and the Congress party have died down in recent years.  Overall, the independent information suggests the situation for Congress party supporters in Punjab has been relatively peaceful in recent years.  The independent information does not support the applicant’s claims that during and since the State election he and all Congress party members were constantly targeted by the police for arrest on the basis of their political opinion.  The Tribunal rejects his claim that the government has put a case against all Congress party members.

40.               The Tribunal finds that the applicant fabricated his story for the purposes of claiming refugee status.  The Tribunal rejects all of the applicant’s claims concerning his reasons for departing India, including those about being abducted and held illegally; being arrested 4 times without charges; paying bribes to be released from detention; and having his wheat crop damaged.  The Tribunal does not accept that the applicant has suffered any harm in India as a result of his claimed membership and activities with the Congress party.  The Tribunal does not accept that the applicant has suffered any harm in India as a result of his being a landowner/farmer and for refusing to pay bribes.  The Tribunal rejects his claim that he would be kidnapped at the airport on return.

41.               The Tribunal concludes that the applicant is able to return to live in his home in Punjab state and the chance that he would suffer harm amounting to persecution for reason of his political opinion actual or imputed, membership of a particular social group, religion, or for any other Convention reason, in the reasonably foreseeable future is remote.

7                     The RRT, like the delegate, also concluded that it would be reasonable for the applicant, if necessary, to live in India outside of Punjab state.  It said:

42.               The Tribunal also finds that the applicant would be able to live in most other States in India.  Independent information shows that “Although the majority of Sikhs in India reside in Punjab state…there are many Sikh communities in India located outside of Punjab state… In correspondence to the Research Directorate, a specialist in Indian affairs reported that Sikhs are located in every state in India, and in 579 districts out of a total of 593 districts”.  Citizens are not required to register their faith in India and Sikhs are able to practise their religion without restriction in every state of India.  There were no checks on a newcomer to any part of India arriving from another part of India, even if the person is a Punjabi Sikh.  Upon relocation Sikhs would have indiscriminate access to employment dependent on their skill level.  The Tribunal concludes that he is able to reside in any number of Sikh communities located outside of Punjab and would be able to practise his religion.  The Congress party is in government elsewhere in India including nationally.  Whilst the applicant is aged, he claims to still hold land and property in India and so has access to financial support.  Indeed, he indicated at the hearing a willingness and desire to work and he would not be prevented from seeking employment in India.  After considering cumulatively his particular circumstances, the Tribunal concludes that it would be reasonable for him to live in India outside of Punjab State.

43.               The applicant claimed at the hearing that he would be targeted anywhere in India, kidnapped at the airport and he would be unable to hide because of his age.  However, as discussed above the Tribunal rejects his claims concerning harm he suffered in Punjab in 2007.  The Tribunal concludes that he was not targeted in 2007 and would not be targeted for harm for a Convention reason if he returned to live in India or indeed, to live in Punjab.

8                     In the proceedings in the FMCA it was necessary for the applicant to present a case establishing jurisdictional error on the part of the RRT in order to succeed in his application for judicial review of the RRT decision.  The FMCA found that the applicant’s original application contained no grounds of any relevance or substance.  However, the applicant had the benefit of a free referral to legal advice.  Following that referral he filed an amended application.  The amended application advanced a case based upon the proposition that the applicant had been denied procedural fairness by the RRT in that the issues upon which the RRT decision turned had not been fairly disclosed to him (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152).  The FMCA rejected this argument.  The FMCA said:

14.         It is incorrect to contend that the delegate made no findings in relation to the credit or reliability of the applicant's claims.  I have extracted above a paragraph from the delegate's reasoning where, plainly, the delegate did not accept the credibility of the claims made by the applicant.  This is clearly not a case, as in SZBEL, where the applicant could have participated in a review proceedings in the Tribunal under a misapprehension that the truth of any aspect of his refugee claims was not in contention.  Rather, in my opinion, the converse would have appeared (cf. SZBEL (supra) at [47]).

15.       The argument presented in the amended application does not identify any particular matter which the applicant was inadequately warned was in issue, and I can identify no such matter.  As I have indicated above, it appears to me that the essential elements in the Tribunal's reasons for disbelieving the applicant were very fairly put to the applicant in the course of the hearing.  I consider that it is not reasonably arguable that the applicant was not on notice that the Tribunal might disbelieve the whole of his refugee claims.  In my opinion, it is not reasonably arguable that reasoning of the High Court in SZBEL would have application to the decision of the present Tribunal. 

16.         I therefore do not consider that the argument in paragraphs a), b) and c) of the amended application has any prospect of success. Nor, for the same reasons, do I consider that the alternative argument presented in paragraphs d), e) and f) of the particulars raises any other ground of merit.

17.         In his submissions to me today, the applicant suggested that the Tribunal's behaviour during the hearing was "hostile", but he has not presented any evidence to the Court to give any substance to that statement. He also criticised the Tribunal for giving emphasis to his travel to New Zealand. However, in my opinion, the Tribunal's reasoning concerning that travel was plainly relevant to its assessment of his history, and lends no support for any suggested bias or closed mind on the part of the Tribunal or other jurisdictional error.

9                     The decision of the FMCA dismissing the applicant’s case as one that did not raise an arguable case for relief under r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) was an interlocutory decision.  Accordingly, leave is required to appeal to this Court. 

10                  The grounds of appeal to be relied on in this Court, if leave to appeal was granted, were said, in the application for leave to appeal, to be set out in an accompanying affidavit.  The affidavit repeated the factual basis of the applicant’s claims and made broad assertions that the FMCA and the RRT had failed to apply the law correctly.  A direction to provide a draft notice of appeal setting out particularised grounds of appeal was not complied with.  Neither was a direction to file and serve written submissions. 

11                  At the hearing of the appeal the applicant said little.  He repeated his claim to be a refugee and to be in fear of his life and asked that his case be considered carefully and properly.

12                  It is well established that leave to appeal will not be granted where it is futile to do so.  The conventional test for the grant of leave against an interlocutory decision is that set out in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 namely, “whether the decision at first instance was attended with sufficient doubt to warrant it being reconsidered and whether substantial injustice would result if leave were refused, supposing the decision at first instance was wrong”.

13                  I am prepared to accept that the applicant would suffer at least the possibility of substantial injustice by being refused leave to appeal if the decision of the FMCA was wrong.  However, in my view, the decision of the FMCA is not attended with any doubt.  The judgments which were made by the RRT (whose decision was the subject of the application for judicial review in the FMCA) were ones committed to it to make under the Act.  It was necessary for the applicant to show that the decision of the RRT was affected by jurisdictional error.  The allegation that he was denied procedural fairness in the respects articulated was untenable.  I can see no error of any kind in the conclusion reached about that issue by the FMCA.  Nor is there any other jurisdictional error in either the processes or the decision of the RRT which is apparent from the RRT’s decision.

14                  In the circumstances it would be futile to grant leave to appeal.  The application for leave to appeal will be dismissed.  It is appropriate to dismiss it with costs.

Associate:

Dated:         10 December 2008