BQC15 v Minister for Immigration

[2016] FCCA 966

FEDERAL CIRCUIT COURT OF AUSTRALIA

BQC15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 966

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in India – applicant disbelieved in critical respects – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

Applicant: BQC15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2230 of 2015

Judgment of: Judge Driver

Hearing date: 26 April 2016

Delivered at: Sydney

Delivered on: 26 April 2016

REPRESENTATION

The Applicant appeared in person
Solicitors for the Respondents:	Ms R Krishnan of Australian Government Solicitor

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2230 of 2015

BQC15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Administrative Appeals Tribunal (Tribunal).  The decision was made on 10 July 2015.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from India and had made claims of religious persecution.  Background facts relating to the applicant’s claims, and the decision of the Tribunal on them, are set out in the Minister’s written submissions filed on 18 April 2016. 

2. The applicant is a citizen of India who first arrived in Australia in April 2007 as the holder of a student visa[1]. His last substantive visa, a subclass VC 485 (temporary) skilled graduate visa, ceased on 3 November 2012[2].  He applied for a protection visa on 16 December 2013[3], and attended a Department interview on 27 June 2014[4].  His application was refused on 15 July 2014[5].  On 8 August 2014, he applied to the Tribunal for review of that decision[6].  He appeared before the Tribunal on 1 July 2015[7].  The Tribunal affirmed the delegate’s decision on 10 July 2015[8].

   [1] Court Book (CB) 51

   [2] CB 51

   [3] CB 1-39

   [4] CB 54

   [5] CB 50-66

   [6] CB 67-72

   [7] CB 80

   [8] CB 95-109

3. In summary, the applicant claimed that he was a Muslim from Viramgam, in the state of Gujarat.  In 2002, he banded with a group of Muslims to protect himself and his family during anti-Muslim riots in Gujarat. He had continued to live in India without incident until 2007, when he left for Australia. However, in 2013, on one of his trips back to India, he had been followed by suspicious people while shopping and threatened.  He fears that, should he return to India, he will be killed by anti-Muslim groups including the Virat Hindustan Sangam (VHS), Rashtriya Swayamsevak Sangh (RSS), Shiva Sena and Bajarang Dal[9].

   [9] CB 30-31, 54, 98 [14]-[15]

Tribunal decision

1. The Tribunal referred to extensive country information regarding the status of Muslims as a minority group in India, the 2002 Gujarat riots, communal violence in Gujarat, and the central government’s approach to religious tensions[10].

   [10] CB 98-105 [17]-[33]

2. The Tribunal accepted that the applicant was involved in defending his town against attackers during the 2002 Gujarat riots[11].  However, it had significant concerns with key aspects of his claims because:

   a)the applicant had given inconsistent evidence as to threats from attackers during the 2002 Gujarat riots[12];

   b)he had given inconsistent evidence about being threatened by anti-Muslim personnel during his trip to India in 2013[13];

   c)his account of being threatened in 2013 by anti-Muslim personnel who had identified him in the riots of 2002 was implausible[14].

   [11] CB 106 [38]

   [12] CB 106 [38]

   [13] CB 106-107 [39]-[41]

   [14] CB 107 [42]

3. In light of these concerns the Tribunal was not satisfied that the applicant had been truthful in relation to his claims of being threatened in 2013 as a result of his involvement in the 2002 riots. Nor was it satisfied that the applicant received threats during the riots themselves[15].

   [15] CB 107 [43]

4. While the Tribunal accepted that the applicant is a Muslim, it did not accept that he had a profile that would result in him facing a real chance of serious harm on the grounds of religion or that independent information established that Muslims in general faced a real chance of serious harm. The Tribunal noted that the applicant lived in India without incident from 2003 to 2007, and that his family had lived without difficulty since 2002. The Tribunal also noted that there had been no reports of communal violence in Viramgam since 2003. While accepting that there were reports by some groups that the Gujarat government was failing to arrest those responsible for the 2002 riots, it did not consider that this created any risk of harm to the applicant. Nor was it satisfied that the election of the Bharatiya Janata Party (BJP) in India has increased his risk profile[16].

   [16] CB 108 [50]-[51]

5. For the reasons given, the Tribunal was not satisfied the applicant had a well-founded fear of persecution by reason of his religion, or any other Convention reason, as a result of his participation in the 2002 riots, threats from anti-Muslim personnel, the actions of the BJP government, religious tensions and violence generally, or for any other reason. Nor was it satisfied he faced a real risk of significant harm[17].

   [17] CB 108 [53]-[56]

The present proceedings

1. These proceedings began with a show cause application filed on 11 August 2015.  The applicant continues to rely upon that application.  The grounds in that application are expressed in general terms:

   1. I was threatened in 2013 and any inconsistencies in my evidence are a result of the fear and risk of harm returning back to India.

   2. I reserve my right to provide a transcript to support my claim because during the interview I was confused because of the 2002 events and the latest event of 2013.

   3. The Tribunal Member misunderstood my fear of persecution based on the evidence before him as well as my oral evidence.

2. The application was supported by a short affidavit filed with it which I received.  A further affidavit by Mr Toufic Laba-Sarkis was made on 22 August 2015.  It was filed on 27 August 2015.  Annexed to that affidavit is a transcript of the hearing conducted by the Tribunal on 1 July 2015.  It appears that Mr Laba-Sarkis’ affidavit was not served on the Minister, and I provided a copy to the Minister’s solicitor during the course of today’s hearing.  I received the affidavit subject to relevance. 

3. Only the Minister prepared written submissions in accordance with orders made by the Registrar on 17 September 2015.  However, the applicant handed up written submissions today which he addressed orally. 

4. The applicant sought to establish several propositions.  The first was that the transcript reveals misunderstanding by the Tribunal in relation to the threat that the applicant claimed was made to him in 2002.  The Tribunal reasoned that the applicant’s written statement provided with his visa application had been untruthful in relation to that threat because the applicant had retreated from it in his oral evidence.  The applicant sought to demonstrate that there was a misunderstanding about that purported retreat.  On my reading of the transcript, in particular at page 12, there was no such misunderstanding.  The applicant, in effect, conceded to the Tribunal at the hearing that the threat made was not made in the way claimed in his written statement. 

5. Secondly, the applicant sought to demonstrate that the Tribunal should have made some further enquiry in relation to his statement that nothing happened to him between 2002 and when he came to Australia in 2007.  The transcript records that the applicant gave simple answers in the negative to the Tribunal’s questions as to whether anything happened to him over that period.  The applicant’s evidence was clear on its face and there was no obligation on the Tribunal to make further enquiries. 

6. Thirdly, the applicant sought to assert some problem or difficulty with the Tribunal’s reasons concerning its adverse credibility finding in relation to the claimed threat in the marketplace in 2013.  The applicant said that he did not understand the Tribunal’s reasoning.  In my opinion that reasoning is perfectly straightforward.  The Tribunal was simply unwilling to accept that after a lengthy period in which nothing adverse happened to the applicant, someone would out of the blue, 11 years after the riots in 2002, single the applicant out for further threats arising from those riots.  The Tribunal found the claim highly implausible.  Its conclusion was open to it on the material before it. 

7. In other respects, the applicant’s written and oral submissions take issue with the merits of the Tribunal’s decision. 

8. The applicant asserted that he was under a disability at the time of the Tribunal hearing due to depression.  The applicant conceded that there was no medical diagnosis of the depression, although he said that he informed the Tribunal of the claim of depression and the transcript confirms that.  However, the transcript also confirms that the applicant was given a break from the hearing when requested and the Tribunal took into account at [41] of its reasons[18] that the applicant, like any person giving evidence in a stressful situation, might have been prone to some errors, although the Tribunal was not willing to accept that inconsistencies in the applicant’s claims or evidence could be explained by that.

   [18] CB 107

9. In oral submissions the applicant also asserted that the Tribunal had erred in not putting to him problems as between his evidence to the Tribunal and the evidence he gave to the Minister’s delegate.  That is not consistent with the Tribunal’s reasons at [40][19]. 

   [19] CB 106

10. In other respects the Minister’s submissions deal with the applicant’s written grounds.  I agree with those submissions. 

11. The application contains three unparticularised grounds.  None of these grounds raises an arguable case for the relief claimed.

Ground 1

1. The first ground asserts that the applicant “was threatened in 2013 and any inconsistencies in [his] evidence are a result of the fear and risk of harm of returning back to India”. It rises no higher than a challenge to the factual findings of the Tribunal, and cannot sustain a finding of jurisdictional error[20].

   [20] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272

Ground 2

1. The second ground purports to reserve the applicant’s right to provide a transcript “because during the interview [he] was confused because of the 2002 events and the latest event of 2013”.  It fails to identify any error on the part of the Tribunal.  Insofar as the applicant’s claimed confusion is concerned, the Tribunal did not accept that this state provided a satisfactory explanation for the inconsistencies in his evidence[21].  This finding was open to it for the reasons it gave.

   [21] [40]-[41]

Ground 3

1. The third ground asserts that the Tribunal misunderstood the applicant’s fear of persecution based on the evidence before it. In the absence of particulars, it cannot succeed. There is no evidence that the Tribunal misunderstood the applicant’s claims or evidence.

2. I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal.

3. I will, therefore, order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

4. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court’s scale. The applicant did not wish to be heard on costs. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 27 April 2016