SZKDL v Minister for Immigration

[2018] FCCA 2729

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZKDL v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2729

Catchwords:
MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred by misconstruing the meaning of significant harm – whether the Tribunal’s decision was arrived at with “reasonable satisfaction” – whether the Tribunal erred by failing to investigate the claim of persecution – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 36

Migration Amendment (Complementary Protection) Act 2011 (Cth)

Cases cited:

SZGIZ v Minister for Immigration & Citizenship (2013) 212 FCR 235

Applicant: SZKDL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1681 of 2017

Judgment of: Judge Smith

Hearing date: 6 August 2018

Date of Last Submission: 6 August 2018

Delivered at: Sydney

Delivered on: 6 August 2018

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Mr J McGovern, Clayton Utz

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1681 of 2017

SZKDL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. This is an application for judicial review of the decision of the Administrative Appeals Tribunal made on 1 May 2017.  The Tribunal’s decision was to affirm a decision of a delegate of the Minister for Immigration to refuse to grant the applicant a protection visa. 

2. The applicant is a citizen of India who arrived in Australia on a tourist visa on 19 June 2006.  On 29 June 2006, he lodged an application for a protection visa.  That application was unsuccessful and he applied to the then Refugee Review Tribunal (RRT) for review of that decision.  The RRT affirmed the decision to refuse to grant the applicant a protection visa and the applicant applied to this Court, then known as the Federal Magistrates Court of Australia, for judicial review.  That application was unsuccessful, as was an appeal to the Federal Court of Australia and an application for special leave to appeal to the High Court of Australia. 

3. In March of 2012, the Migration Act 1958 (Cth) was amended[1] to include a new criterion for the grant of a protection visa by insertion of sub-s.36(2)(aa) into the Act.  In SZGIZ v Minister for Immigration & Citizenship (2013) 212 FCR 235, a decision of the Full Court of the Federal Court, it was held that an applicant who had previously applied for a protection visa on the basis of sub-s.36(2)(a) of the Act was entitled to make a further application in reliance on the new criterion in sub-s.36(2)(aa), and that is what the applicant did.

   [1] Migration Amendment (Complementary Protection) Act 2011 (Cth), which commenced on 24 March 2012.

4. On 21 August 2013, the applicant lodged a further protection visa application claiming to satisfy the new criterion in sub-s.36(2)(aa).  The claims that he made in support of that application were that he was a member and supporter of Shiv Sena, a group who work for the betterment of Hindus in India and that he and his family also supported the Bharatiya Janata Party (BJP) and the local BJP member.  He claimed that due to his support of those two parties he faced harm from the Congress Party and from Islamic fundamentalists.  The applicant claimed that he would be unable to seek state protection as the police were corrupt and ineffective.  He claimed that during riots in Ahmedabad in 2002 a friend of his was killed and that his business was burnt in an arson attack between 2002 and 2005.  The applicant also claimed that his wife had received phone calls asking about him. 

5. On 25 September 2015, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa and the applicant applied to the Administrative Appeals Tribunal for review of that decision.  The applicant attended a hearing conducted by the Tribunal on 10 March 2017.  On 1 May 2017, the Tribunal made its decision to affirm the decision of the delegate. 

6. The Tribunal accepted that the applicant had, for some years before he departed India, supported the BJP and Shiv Sena however, concluded that he did not hold a position in either party and just did low level tasks.  As a consequence, it found that his political and social profile had been low and also found that he had not been confrontational in his activities with, and in support of Shiv Sena and the BJP. 

7. The Tribunal accepted that the applicant had experienced the 2002 riots in Ahmedabad.  In light of country information, it accepted that he saw a friend die in the riots, but it did not accept that the applicant himself was targeted or harmed during, or in the aftermath of those riots.  Further, it did not accept that the applicant’s shop was burnt by an arsonist because of his political or social profile and did not accept that the applicant had to stay away from his home at times because of such adverse action. 

8. The Tribunal did not accept that the applicant had come to the serious and ongoing adverse attention of the Congress Party, Muslims or other agents, or that he now feared to return to India for the reasons that he had given.  It did not accept that the applicant was now of adverse interest to the Congress Party, Muslims or other agents. The Tribunal went further and stated that the applicant’s activities and circumstances of the past, which it accepted, would not cause him any difficulty on his return to India.  That said, it accepted that the applicant may resume his support of those two political parties but did not accept that he would become any more involved than he had been beforehand.  In light of that, and the political circumstances in Gujarat State and Ahmedabad, the Tribunal did not accept there was a real risk of significant harm from the Congress Party, Muslims, Islamic fundamentalists, their agents or any other agent. 

9. At [39], the Tribunal found that whilst the applicant stayed and worked in Australia, and the fact that he had sought protection, this would not cause him harm on return to India.  The Tribunal found, in conclusion, there was no real risk that the applicant would be subjected to any form of harm that might satisfy the definition of significant harm in the Act. 

10. For those reasons, the Tribunal was not satisfied that the applicant met the criteria in sub-s.36(2)(aa) of the Act and so affirmed the decision of the delegate.

Consideration

1. The applicant’s amended application for review contains three grounds. 

2. The first is that the Tribunal misconstrued the risk and fear of significant harm in sub-s.36(2A) of the Act. There are no particulars given of that ground and the applicant did not make any submissions either in writing or orally in support of it. Section 36(2A) provides:

   (2A)A non-citizen will suffer significant harm if:

   (a)the non-citizen will be arbitrarily deprived of his or her life; or

   (b)the death penalty will be carried out on the non-citizen; or

   (c)the non-citizen will be subjected to torture; or

   (d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)the non-citizen will be subjected to degrading treatment or punishment.

   (Emphasis in original)

3. There is nothing in the Tribunal’s reasons to support the applicant’s assertion in ground 1. First, in attachment A to its reasons, the Tribunal set out an accurate summary of the requirements of sub-s.36(2)(aa): Court book, page 124. In that summary, it accurately referred to the requirement that there be a real risk that the applicant will suffer significant harm and, secondly, it referred to the exhaustive definition of significant harm in s.36(2A) and by reference to s.5(1) of the Act.

4. Secondly, the Tribunal’s reasons themselves focused upon both the real risk of significant harm, as well as the individual acts or omissions that might constitute significant harm: see for example, [38] and [40]. Given, then, that the Tribunal not only set out an accurate summary of the requirements of sub-s.36(2)(aa) but also addressed its reasons to the requirements in that section, I am not satisfied that the Tribunal acted on some misunderstanding of what those requirements were. The first ground is rejected.

5. The second ground is that the Tribunal had no jurisdiction to make the decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Act.  Once again, this ground is not particularised and no submissions were made in support of it.  It is a template ground and, in reality, has no sensible meaning.  If it be taken to be an assertion that the Tribunal misconstrued the task before it, then, for the reasons I have given in respect of ground 1, it must be rejected. 

6. If it is to be understood as an assertion that the Tribunal’s decision was unreasonable for some other reason, then it must also be rejected. The Tribunal largely accepted the applicant’s claims and to the extent that it did not, the Tribunal gave reasons for that, including vagueness of some of the applicant’s evidence and the changeability of other parts of his evidence: Tribunal’s decision at [33].

7. The Tribunal then assessed its finding in respect of what the applicant said against country information that it also had regard to, and in that manner, approached the fact-finding element of its task on the basis of the material before it.  Once it had done so, as I have already found, it then applied a proper understanding of the relevant law to those facts in order to reach its ultimate conclusion.  For those reasons, the second ground is rejected. 

8. The third ground is that the Tribunal failed to investigate the applicant’s claims, especially the grounds of persecution in India.  Once again, it is difficult to understand what the ground means in the absence of particulars and submissions, and the ground is a template one with which the Court is well familiar. 

9. The Tribunal’s reasons disclose that it did, in fact, make enquiries about the applicant’s claims.  For instance, at [29], it stated that it conducted internet searches into the name of the political leader that the applicant said he had been a supporter of.  Further, it is apparent from paragraphs such as [38] that the Tribunal located, and had regard to, independent information concerning the country’s circumstances that might affect the applicant on return to India.  It may be, in certain circumstances, that a failure to make an obvious enquiry about a fact critical to the outcome of the decision might lead the Tribunal into jurisdictional error, but the applicant has not identified any obvious enquiries that the Tribunal could have made and I have been unable to identify any for myself.  For each of those reasons, ground 3 is rejected. 

Conclusion

1. I am not satisfied that the Tribunal’s decision is affected by jurisdictional error.  Accordingly, the application must be dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:     12 October 2018