SZQDR v Minister for Immigration

[2016] FCCA 597

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZQDR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 597

Catchwords:
MIGRATION – Protection visa – review of decision of Refugee Review Tribunal –standard of interpretation at Tribunal hearing – failure to address claims – merits review – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 476

SZGIZ v Minister for Immigration & Citizenship (2013) 212 FCR 235; [2013] FCAFC 71

SZQDR v Minister for Immigration & Anor [2011] FCA 1433
SZRMQ v Minister for Immigration & Border Protection (2013) 219 FCR 212; [2013] FCAFC 142

Applicant: SZQDR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 779 of 2015

Judgment of: Judge Smith

Hearing date: 24 February 2016

Date of Last Submission: 24 February 2016

Delivered at: Sydney

Delivered on: 24 February 2016

REPRESENTATION

The Applicant appeared in person

Solicitor for the Respondents: Ms N. Blake, Clayton Utz

ORDERS

1. The application be dismissed.

2. The name of the second respondent be amended to Administrative Appeals Tribunal.

3. The applicant pay the first respondent’s costs fixed in the amount of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 779 of 2015

SZQDR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore & Revised)

Background

1. The applicant is a citizen of India who arrived in Australia on a business visa on 28 July 2010. On 7 September 2010, he applied for a protection visa. That application was unsuccessful before the delegate and the Tribunal. An application to this Court for judicial review was dismissed and an appeal from that judgment to the Federal Court was also dismissed: SZQDR v Minister for Immigration & Anor [2011] FCA 1433. Shortly after that time, the applicant became an unlawful non-citizen.

2. In March 2012, the Migration Act 1958 (Cth) was amended to include a new criterion for a protection visa. That is what is known as the complementary protection criteria in sub-s.36(2)(aa) of that Act. According to a decision of the Full Court of the Federal Court in SZGIZ v Minister for Immigration & Citizenship (2013) 212 FCR 235; [2013] FCAFC 71, there was nothing to stop an unsuccessful applicant like this applicant from applying for another protection visa on the basis of that new criterion and, on 5 December 2013, that is what this applicant did.

3. The applicant’s claims in respect of the new criterion were almost identical to those raised in his original protection visa application. They are set out at [17] of the Tribunal’s reasons:

   [Why he left India] I left India because of a fear of persecution. There was enmity against me after my sister got married to my friend. After the wedding people came to my house and asked the whereabouts me and [Mr X] and then ransacked the house, broke the windows and doors. I was attacked one night when going home from visiting my mother in hospital and was rescued by some security guards. I was admitted to a nursing home for treatment. They were determined to kill me because I allowed my sister marriage with [Mr X] who is their main enemy. I also wanted to join the Congress Party to gain protection from them. The CPI learned of this and took it seriously.

   [Has he experienced harm in India] I was attacked by the CPI when going from visiting my mother in hospital. I was admitted to nursing home for treatment but left when I realised my attackers were the same people who had attacked my mother.

   [What he fears may happen to him if he goes back to India] I fear of serious persecution if I go back to India.

   [Who do you fear may harm/mistreat you if you go back?] CPI members will kill me.

   [Why do you think this will happen to you if you go back?] Because my sister got married with [Mr X] and I became a member of the Congress Party.

   [Do you think the authorities of the country can and will protect you if you go back?] We are a Christian minority in India and there was enmity against [Mr X] with the police and CPI.

   In addition to that, he also claimed for the first time that he feared harm as a Christian. 

4. On 13 May 2014, a delegate of the Minister made a decision to refuse to grant the applicant a visa. The applicant applied to the Refugee Review Tribunal[1] for review of that decision. On 27 February 2015, the applicant attended a hearing conducted by the Tribunal. At [10] of its reasons, the Tribunal made the following comment about that hearing:

   … The Tribunal hearing was conducted with the assistance of an interpreter in the Malayalam and English languages. As the applicant speaks English, he answered some of the questions in English. The Tribunal was satisfied that he used the interpreter when necessary and that he understood the proceedings and was able to present evidence and arguments. …

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

The Tribunal’s decision

1. The Tribunal handed down its decision on 5 March 2015. The decision was to affirm the decision of the delegate. In essence, the Tribunal did not believe what the applicant said. It gave a number of reasons for its finding about the applicant’s credibility, including:

   a)it found the applicant’s evidence concerning where he had lived in India to be vague and changing;

   b)it found that the fact that the applicant had continued to go back to his home in India after working in Dubai indicated that he did not have a genuine fear of persecution;

   c)it found that the fact that the applicant continued living in his family home, giving his claimed persecutors plenty of opportunity to harm him, and yet not they had not harmed him, was inconsistent with the credibility of the claim;

   d)the Tribunal was concerned about the applicant’s changing evidence as to when he last experienced problems;

   e)the Tribunal was concerned about the applicant’s vague and not credible evidence relating to why the CPM (Communist Party Marxist) was so against the marriage of his sister to his brother-in-law;

   f)the Tribunal was concerned about the applicant’s changing evidence concerning his role within the Congress Party;

   g)the Tribunal was concerned with inconsistency in the details given by the applicant. Amongst these concerns was the fact that at the Tribunal hearing, the applicant said that he was attacked personally on the way home from a soccer game and rescued by security guards who took him in a van to a hospital. The Tribunal noted that that was inconsistent with the claim in his application form which was to the effect that he was attacked on his way home from visiting his mother in hospital; and

   h)the Tribunal was concerned about the applicant’s delay in leaving India, considering that the last attack claimed occurred in 2007 and he did not leave India until 2010.

2. On the basis of those concerns, the Tribunal found that the applicant had fabricated his account of events upon which he based his protection claims and it made the following findings about them:

   On the basis of the adverse credibility finding, the Tribunal does not accept that: the marriage between the applicant’s sister and his brother-in-law caused any difficulties; that anyone has threatened to harm the applicant, or has attacked the applicant’s home, his relatives, or the applicant (nor that he has memory problems for this reason); that anyone has sought to cause harm to the applicant while he was in India, or since he has been in Australia; that the applicant’s claims about his brother-in-law and his family are true; that his mother was hospitalised because she was concerned about the applicant’s problems or for any reason relating to the applicant’s claims; that the applicant came to Australia with a fear of persecution; or that he has ever had a fear of harm in India. Further, the Tribunal does not accept that the applicant has assisted or was a member of the Congress Party, or that members of the CPI/CPM have ever sought to harm him, or that he has ever had problems for political reasons. The Tribunal considers he has fabricated his claims.

3. The Tribunal then turned to consider the applicant’s claim concerning Christianity. While accepting that the applicant was a Christian and attended church in Australia and would attend church on return to India, it was not satisfied that there was a real risk that he would not be able to practice his religion or face any pressure to change it.  It found that there was no real risk of significant harm to the applicant concerning his religion. 

4. In summary, the Tribunal concluded that the applicant had not suffered harm in the past for the reasons he claimed and was not satisfied that there was evidence before it to support the claim that he faces a real risk of significant harm in India. For that reason, the Tribunal was not satisfied that the applicant satisfied the complementary protection criterion. The Tribunal went on to consider the possibility that the applicant might satisfy one of the other criteria in s.36 of the Act, but found that he did not. For those reasons, the Tribunal affirmed the decision of the delegate.

Consideration

1. The applicant now seeks judicial review of the Tribunal’s decision under s.476 of the Act. In order to succeed in his application, he must establish that the Tribunal’s decision is affected by jurisdictional error. In other words, he must establish some serious error that affects the Tribunal’s decision.

Ground raised at hearing

1. Before turning the grounds in the application, I note that the applicant raised a new ground at the hearing today. He said that the interpreter at the Tribunal hearing did not express his real reasons and did not interpret properly. When I asked him for specific examples of that allegation, he was unable to do so, but said that if he listened to the CD again he would be able to recognise them. He sought an adjournment in order for him to do so. 

2. For reasons that I gave at the hearing, I refused that adjournment. In those circumstances, while it may be accepted that errors in interpretation might give rise to jurisdictional errors (see, for example, SZRMQ v Minister for Immigration & Border Protection (2013) 219 FCR 212; [2013] FCAFC 142), there is no factual basis upon which such a claim might be established and the ground is rejected.

3. It ought to be noted in any event that the evidence before the Court does not give any suggestion of any difficulty in interpretation. First, as noted in the Tribunal’s decision, the applicant was able to speak English at the hearing, although he also used an interpreter. There is no suggestion that the applicant ever raised any concerns about the interpretation at the hearing. Secondly, with the exception of some of the inconsistencies mentioned in the Tribunal’s reasons, the applicant’s claims have been made consistently on the same basis since his first protection visa application. 

Grounds of application

Ground 1

1. I turn, then, to the grounds in the application itself. The first ground is that the Tribunal failed to address the applicant’s claim in the way it was made. The first particular of the ground is that the applicant stated in his protection visa application that he left India because of a fear of persecution and there was enmity against him after his sister got married to a friend. That claim was dealt with on two bases: first, it was considered expressly in the Tribunal’s reasons at [36] to [38], and secondly, it was dealt with at a higher level of generality by the Tribunal’s rejection of all of the applicant’s evidence at [52] and [53]. 

2. The second particular of the ground is that the applicant was attacked by the CPM when going from visiting his mother in hospital. As I have noted above, this particular claim was subject to express consideration by the Tribunal at [42] of its reasons.

3. The third particular is that the Tribunal failed to consider whether or not the applicant in India was at risk of harm from CPM and not able to access effective protection. Contrary to that suggestion, the Tribunal expressly rejected the applicant’s claims (see [53]). 

4. It is clear upon review of the material that what is actually meant by ground 1 is not a failure to address or consider the applicant’s claims, but rather a failure to accept them. That allegation does not amount to an allegation of jurisdictional error, but only represents a disagreement with the factual conclusions made by the Tribunal. For that reason, even if the applicant is correct that the Tribunal ought to have made different findings, that does not give rise to any power in the Court to interfere with the Tribunal’s decision. 

Ground 2

1. The second ground is that the Tribunal had no jurisdiction to make its decision because its reasonable satisfaction was not arrived at in accordance with the provisions of the Migration Act. That ground does not have any meaning without any particulars. It is a formulation of a ground that this Court has seen on quite a number of occasions. It does nothing to advance the applicant’s case. 

Ground 3

1. The third ground is that the Tribunal’s decision was unjust and made without taking into account the full gravity of his circumstances and the consequence of his claims. It is said that the Tribunal did not consider that the applicant had been under immense and intimidating pressure from the CPM. Once again, this ground is similar to grounds raised in a number of other cases. Without any particulars, I take it simply to mean that the Tribunal did not accept the applicant’s claims and, as such, I reject it as not giving rise to any jurisdictional error. 

Conclusion

1. For those reasons, I find that there is no jurisdictional error established in the Tribunal’s decision and I dismiss the application.

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

Date: 30 March 2016