SZOAH v Minister for Immigration

[2018] FCCA 1476

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZOAH & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1476

Catchwords:
MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – whether the Tribunal misconstrued the meaning of significant harm – whether the Tribunal failed to comply with ss.424A and 424AA of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 48B, 424A, 424AA

Cases cited:

SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190; [2007] HCA 26
SZGIZ v Minister for Immigration & Citizenship (2013) 212 FCR 235; [2013] FCAFC 71

First Applicant: SZOAH

Second Applicant: SZOAI

Third Applicant: SZOAJ

First Respondent: MINISTER FOR IMMIGRATION & BODER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 112 of 2017

Judgment of: Judge Smith

Hearing date: 8 May 2018

Date of Last Submission: 8 May 2018

Delivered at: Sydney

Delivered on: 8 May 2018

REPRESENTATION

The first applicant appeared in person.

Counsel for the First Respondent: Mr H P T Bevan

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application be dismissed.

2. The first and second applicants pay the first respondent’s costs fixed in the amount of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 112 of 2017

SZOAH

First Applicant

SZOAI

Second Applicant

SZOAJ

Third 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 a decision of the Administrative Appeals Tribunal made on 16 December 2016. The Tribunal affirmed a decision of a delegate of the Minister to refuse to grant the applicants protection visas on 28 August 2014. The applicants are citizens of India. The first and second applicants are husband and wife respectively, and the third applicant is their child.

2. The applicants arrived in Australia on tourist visas in August 2008 and then returned to India. On 5 February 2009 the first applicant (applicant) returned to Australia on a tourist visa and has remained here ever since. The following month, the second and third applicants arrived in Australia, also on tourist visas, and they too have remained in Australia.

3. On 17 March 2009 the applicants applied for a protection visa[1].  That application was refused on 11 June 2009 by a delegate of the Minister.  The applicants sought review of that decision in the Refugee Review Tribunal[2] (RRT).

   [1] The second and third applicants applied as members of the family unit.

   [2] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

4. On 13 October 2009 the RRT affirmed the decision to refuse to grant the visas. On 10 November 2009 the applicants applied to this Court, which was then known as the Federal Magistrates Court, for judicial review of the RRT’s decision. That application was dismissed on 7 April 2010. On 28 September 2012 the applicants lodged a further protection visa application based upon what is known as the complementary protection criterion which had been introduced into the Migration Act 1958 (Cth) earlier in that year.

5. Although, at first, the Department took that application to be invalid in light of the operation of s.48B of the Act, the application was later accepted as valid in light of the decision of the Full Court of the Federal Court in SZGIZ v Minister for Immigration & Citizenship (2013) 212 FCR 235; [2013] FCAFC 71. As with the first application for a protection visa, the applicant made the primary claims and the second and third applicants based their application upon their membership of the applicant’s family group. The applicant’s claims in support of the visa application were summarised at [30] of the Tribunal’s reasons, which I set out below (without alteration):

   …

   •He answered “No” to Question 44: “Have you experienced harm in that country?”, that is in India.

   •The primary applicant claimed to have lived at the one address in India from 2008 2009, a village in Haryana near Chandigarh.

   •He is from the Punjab. His family traditionally support Congress. He became a member and supporter of CPI.

   •Because of Punjabi nationalism, people from the Punjab are expected to support radical Sikh parties such as Akali Dal and not Congress.

   •Nationalist Punjabis consider that the “Indra” Congress Party is against Sikhs and Sikhism.

   •Punjabi nationalists do not tolerate people who support “Indra” Congress because of the Blue Star operation conducted on the Golden Temple by the former Prime Minister, Indra Gandhi.

   •The primary applicant’s family sees “Indra” Congress as a party working for the masses.

   •Because of his political opinion, the primary applicant was frequently targeted by the Akali Dal and other Punjabi nationalists.

   •They even framed false charges against him to ·stop his political activities.

   •The primary applicant fears that due to his political opinion and continuous opinion against Punjabi nationalism, he will be singled out and targeted.

   •He fears that he will face a real risk of harm including torture, degrading, cruel and inhuman treatment in India.

   •He fears that even if he moved to other parts of India, the Punjabi nationalists will target him and harm him.

   •The primary applicant is the guarantor for the money paid to his friend by a money lender. He friend did not pay the money and the money lender, who has significant influence among the authorities and criminal elements, will target him to extort money from him. The primary applicant will then be killed for failing to pay the money lender the money.

   •The primary applicant fears significant harm for those reasons if he returns to· India. The authorities will not protect him because the police and the lower judiciary are corrupt and ineffective.

6. The applicants were invited to a hearing to be conducted by the Administrative Appeals Tribunal on 19 February 2016.  Shortly before that hearing, a number of documents were provided by their representative, including court documents from India, a letter from an advocate in India, a further statement by the applicant, a summary sheet of the applicant’s health and two character references.  Further Indian court documents were also provided at the hearing.

7. In the statement provided to the Tribunal prior to the hearing, the applicant gave further details of his claims, which were summarised by the Tribunal at [36] of its reasons as set out below:

   …

   •He first became actively involved in politics in 1992 when a friend of his introduced him to the local Congress leader. At that point he was unemployed and had plenty of time for party work. He had read many newspaper articles about the Congress party and became aware that Congress leaders had done many good things for the poor and members of minority groups all over India. For that reason the party had a very good reputation in India.

   •He became involved in various activities to help increase the party’s popularity within the community.

   •He was born in a Lubana caste where most of the community were Akali Dal supporters. The primary applicant was given the responsibility to make them understand what the Congress party stood for.

   •As his work for the party increased its popularity and his profile improved within the party.

   •At the middle of 1988, (sic) the party leaders were discussing about appointing him as joint secretary in the area of Siwan. The party had a problem with him because he had no educational background which was required for that position. While the discussion was going on, he became· well known to members of the opposition party, Akali Dal, as they knew that his activities were reducing their popularity in the local community.

   •In the year of 1998, the Akali Dal secretary approached him and asked him to join their party. If he did he would be given a good position. He was also offered cash. He refused the offer because he knew that many of the Akali Dal leaders were violent, corrupt, and must use their political power for their own benefit.

   •On 8 March 1999, he was arrested by the police for murder. It was written in the First Incident group Report that someone called the taxi in his name and after that the taxi driver never returned to his base or to his home. The primary applicant was taken to the police station and interrogated brutally, but he had no knowledge about that incident. He was denied bail a couple of times and then was bailed after four months. While the primary applicant was in jail, his party was very helpful to him and gave him moral support, but could not stop him being beaten by the Akali Dal supporters. The applicant then knew that had been framed by the Akali Dal leader. But he had to be dealt with according to law. The judge dismissed the charge against him on 20 September 2000. He was very depressed during the trial time.

   •The primary applicant married on 16 March 2005 and moved to the Punjab to start a new life on 13 February 2006. At that time, the Punjab state government was Congress. Because of his lack of educational background, he had to depend on political help. The primary applicant’s local leader from Haryana gave him a reference to work with the Punjab leaders. Unfortunately the Congress Party lost in the local assembly election in the year 2006.

   •As soon as “we” lost in Punjab, the Haryana Akali Dal leaders informed the Akali Dal leaders in Punjab about the primary applicant. He was about to leave Punjab state and move back to Haryana where Congress had come to power, but he could not move to Haryana because there was a case filed against him on 23 October 2006, FIR No. 617, Section 420, 406 478 CRPC. Police came to arrest him at his address, but he was not at home. He was “taken Bail from High Court”. Case is still going on.

   •When he visited Australia “last year” he went back to India because of the pending case. He was told by his lawyer that he might end up in gaol for a long period. The case was politically motivated and they have “managed” some witness against him.

   •The primary applicant has a young family and his wife is not an educated woman. He is the only bread winner for his family. If he ends up in jail they have no place to go. He thought very carefully about his future and his family and the consequence of not attending the hearing. He knows that he might not be able to go back in future. The court will issue a warrant against him and it will remain in effect forever. But when he saw his baby’s face, he felt that he had no right to make his life difficult and did not want to go back to gaol where he had very difficult experience.

   •He fears returning to India because they will make him go to jail for a long time. The verdict will be against him as he was told by his lawyer. Being in jail is the biggest threat. Often there are fights between opposition party members.

   •The applicant is very depressed and traumatised over his hopeless situation and continues to experience ongoing psychological effects of all that he has been through in India. He has much difficulty in sleeping at night because of all the worry and all the past traumas continue to haunt him.

   (Emphasis in original, without alteration)

8. The Tribunal made its decision on 16 December 2016 affirming the decision of the delegate.  It did not accept the applicant as a credible witness and found that the documents relied upon by him concerning his court cases in India were not genuine.

9. For present purposes, the reasons for those findings are summarised accurately by the respondent in his written submissions at [7]. As a consequence of the credit findings, the Tribunal rejected all of the applicant’s claims. In particular, it did not accept that the applicant had been involved in Congress Party political activities and come to the adverse attention of the Akali Dal or any other opposition party; that he had suffered any harm in India because of those political activities; that there had been charges laid against him in 1999 or 2006, or that those charges were politically motivated; that there was a real risk that the applicant would be harmed because of his political activities; or that he was a guarantor for money paid to a friend and consequently would be targeted by the lender for extortion and killed.

10. As a consequence of those factual conclusions, the Tribunal concluded at [77] that it was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, that there was a real risk that he would suffer significant harm.  For that reason, the Tribunal concluded that the applicant did not satisfy the criteria in sub-s.36(2)(aa) of the Act, and it followed that the second and third applicants also did not satisfy the criteria in sub-s.36(2)(c) of the Act.  For that reason, the Tribunal found that the applicants could not be granted a visa and so affirmed the decision of the delegate. 

11. The applicants now bring this application for judicial review of the Tribunal’s decision. 

Consideration

First Ground: “The Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958.”

1. It is said that “[t]he Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicants upon his returns (sic) to India.”  The applicants filed no written submissions in support, or explanation of, that ground. 

2. The applicant, who appeared today at the hearing on behalf of all of the applicants, said he could not understand the ground because it was in English and his wife had prepared it for him. The question of what constitutes significant harm under s.36(2A) of the Act did not arise on the findings of the Tribunal. That is because all of the claims made by the applicant which supported the contention that he faced a real risk of significant harm within the meaning of sub-s.36(2)(aa), as understood in light of s.36(2A), were rejected by the Tribunal. As the question did not arise, it follows that the Tribunal did not make any error in connection with that question. The first ground is rejected.

Second Ground: “The second respondent failed to comply with the mandatory requirement under section 424A(read with section 424AA) [sic] of the Migration Act ...”

1. The applicants complain that “[t]he Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act.” It may be accepted for present purposes that the factual assertions contained in this ground are correct, although there is no evidence of what occurred at the hearing that might support the contention concerning s.424AA.

2. It is clear, however, the Tribunal did not write to the applicants in terms that might have been required by s.424A of the Act if such an obligation arose. However, the applicants have not established that any such obligation arose. They have not identified any information that the Tribunal considered would be the reason, or part of the reasons for its decision, and I can see none on the material before the Court. The only information that the Tribunal appeared to have considered was information put before it or sent to the Department for the purposes of the application for the protection visa.

3. On its face, none of that information was adverse to the applicant’s case. Thus, not only did the information not fall within s.424A(1) of the Act but even if it had, it would have fallen into the exception found in s.424A(3): see SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 at [17]; [2007] HCA 26. For those reasons, there was no obligation on the Tribunal to give clear particulars of any information under s.424A of the Act and its failure to do so did not give rise to jurisdictional error.

Third Ground: “The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act.”

1. This ground is an assertion that has been made to this Court on many occasions.  Without any particulars, it is meaningless.  The Tribunal’s decision was based upon its rejection of the applicant’s factual claims.  That rejection was based upon a close analysis of the applicant’s written claims, his oral claims and the documents provided by the applicant in support of both of those claims. 

2. Each of the reasons given by the Tribunal in connection with those matters showed a close attention to that material and was based upon a reasonable assessment of that material. The conclusion was eminently open to it on the material. For each of those reasons, the third ground is rejected.

Conclusion

1. I am not satisfied that there is any jurisdictional error in the Tribunal’s decision.  The application must be dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:  14 June 2018