SZRJN v Minister for Immigration
[2017] FCCA 520
•9 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZRJN v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 520 |
| Catchwords: MIGRATION – Application to review decision of Administrative Appeals Tribunal – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36, 424AA, 424A |
| Cases cited: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415; [2009] FCAFC 46 |
| Applicant: | SZRJN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2431 of 2015 |
| Judgment of: | Judge Barnes |
| Hearing date: | 9 March 2017 |
| Delivered at: | Sydney |
| Delivered on: | 9 March 2017 |
REPRESENTATION
| Solicitors for the Applicant: | In Person |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application be dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $6,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2431 of 2015
| SZRJN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 11 August 2015. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant, a citizen of India, first applied for protection in July 2011 relying on the Refugees Convention criterion. The application was refused. The Applicant unsuccessfully sought review before the then Refugee Review Tribunal. He was unsuccessful in a judicial review application to the Federal Magistrates Court, an appeal to the Federal Court and an application for special leave to appeal to the High Court.
Following the introduction of the complementary protection criterion and the decision in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235; [2013] FCAFC 71 the Applicant lodged a second application for a protection visa on 3 January 2014. That is the application that is the subject of the Tribunal review in issue in these proceedings.
In the 2014 application form the Applicant claimed that he was an active member of the All India Sikh Students Federation (the AISSF) and also a member of the Khalistan movement. He claimed he was “followed by the government agencies”; interrogated and tortured by the Punjab intelligence branch; that his movement was restricted and he had to present at a police station twice a week; and that he left India without notifying the authorities. He claimed to fear being arrested on return, detained, interrogated and tortured, in essence because of his affiliation with the AISSF.
The application was refused. On or about 17 June 2014 the Applicant sought review by the Tribunal. By letter of 16 March 2015 he was invited to a Tribunal hearing on 20 May 2015. At his request, he participated in that Tribunal hearing by video link.
In its reasons for decision the Tribunal set out the criteria for a protection visa and the history of the previous application. It recorded that following the decision in SZGIZ the second application was accepted as valid.
The Tribunal proceeded on the basis that it must confine its consideration to whether the Applicant satisfied the complementary protection criterion in s.36(2)(aa) of the Act (and s.36(2)(c)), as his claims had already been assessed under the Refugees Convention criterion. No issue was raised and nor is any apparent in relation to this aspect of its decision.
The Tribunal set out the claims made by the Applicant in his 2014 protection visa application. It referred to the discussion of those claims at the Applicant’s interview with the delegate in May 2014, at which he claimed that he had never taken part in any political or religious activities in India of a kind which attracted the adverse attention of the authorities; referred to a division and reallocation of family land by the authorities in 2007; and claimed that a First Information Report had been lodged against him and other members of the AISSF in December 2007 on the basis that they were creating a violent atmosphere and inciting a riot. He also claimed that in 2008, after being granted bail, he went to the Punjab and paid a bribe to obtain a police clearance, that his agent obtained a passport for him, and that as the police were not aware he was departing for Australia, he was not questioned at the airport.
The Tribunal also recorded in some detail the evidence and questioning of the Applicant and issues raised with him at the Tribunal hearing. Among other things, it recorded that the Applicant claimed that everything in his application was correct. He then claimed that he had left India because was a member of group in Uttar Pradesh that was in opposition to a new state government which was acquiring people’s land. He gave that group the name “All India Sikh Federation” (sic) and confirmed that this was the name of the organisation to which he belonged. He referred to land acquisition in early 2007 and the circumstances in which that occurred, including in relation to his father’s property. He claimed that he and others had opposed this action and that police had begun to visit their homes, pressuring them to leave their land and that they threatened to file cases against the family. He claimed they had filed a false case of opium smuggling against him towards the end of 2007. He suggested they would have filed more false cases, but he left the area in July 2008 and stayed in another area until he came to Australia in March 2009. The Tribunal recorded that it put to the Applicant inconsistencies in his evidence and with the information in his protection visa application. It set out his responses.
In particular, the Tribunal recorded that it put to the Applicant the different information in his protection visa application as to the basis on which he feared harm. It considered his response in that respect, including that he did not make any claims in relation to the Khalistan movement. It also put to him that he appeared to be using the incorrect name for the AISSF and raised with him issues about where he had lived at various times and the ease with which he left India.
The Tribunal recorded that the Applicant had explained to it that he claimed to fear harm from the authorities in his home state of Uttar Pradesh because he had opposed the compulsory acquisition of his family land by local government officials. It observed that he provided no independent substantiation of any kind for his claims. The Tribunal was, however, prepared to accept that the Applicant was a member of a Sikh family who moved to a particular village in Uttar Pradesh some 30 or 35 years ago and established themselves as farmers, that his father possessed farm land of up to 40 acres, and that the Applicant may also have had uncles with farm land.
However, having considered the other aspects of the Applicant’s account, the Tribunal found, for reasons which it gave, that it had strong doubts about his claims to fear harm in India. It found that the Applicant had proved to be a generally unsatisfactory witness at the hearing, whose responses were frequently confused, vague and evasive. It found his evidence concerning his father’s landholding and legal cases which he claimed related to it was particularly difficult to follow, as was his evidence about the number and nature of cases he claimed had been lodged against him. It also found the Applicant’s evidence about his alleged activities in the “All India Sikh Federation” to be vague and lacking in circumstantial detail and was of the view that like other aspects of his evidence, it gave the impression of something he had memorised imperfectly, rather than genuine first-hand experience.
The Tribunal had regard to apparent contradictions in the Applicant’s responses at the hearing. It gave examples in that respect, in particular as to where and when the police had harmed him. The Tribunal also had regard to what it saw as significant inconsistencies between the claims in the Applicant’s protection visa application and his oral evidence at the Tribunal hearing. It was not satisfied that the Applicant had given a credible account of his experiences in India. It referred to his evidence in relation to matters such as where he lived at particular times; his schooling and employment; and whether his claim was that he was harmed by the police in Uttar Pradesh or interrogated and tortured by the Punjab intelligence branch and his movements restricted.
The Tribunal also found unconvincing the Applicant’s claims about his alleged involvement with political movements in India. It referred to his evidence that his statement in his protection visa application that he was an active member of the Khalistan movement was a mistake and that he had no explanation for this mistake. It also had regard to the fact that he had given an incorrect name for the All India Sikh Students Federation, had made the implausible suggestion that there were two organisations, and had given a confused and vague explanation of what his alleged active membership had involved. The Tribunal also found confused and unenlightening the Applicant’s explanation at the hearing as to an incident, or incidents, in which he and other alleged protestors had been involved in blocking access to the village.
Finally, the Tribunal found the Applicant’s claim to have been a target of police in Uttar Pradesh after 2007 with at least two false cases lodged against him for narcotic smuggling and inciting people to riot was not consistent with his ability to obtain a passport in the state capital in September 2008 and use it to travel to Australia in March 2009. It did not accept his explanation that the matter of the false case had not formalised itself within the 15 month period in issue.
Taking these considerations together, the Tribunal was not satisfied the Applicant had given a credible account of his experiences in India. It was not satisfied he was ever involved in a dispute with local government officials, or anyone else, over redistribution of the family land. It was not satisfied he was ever a member of the AISSF or the Khalistan movement or involved with them in protests in his village or any other way. It was not satisfied false cases had been lodged against the Applicant or that he ever came to the adverse attention of the authorities anywhere in India or that it was for these reasons he left India and came to Australia.
Hence, the Tribunal was not satisfied that on return to India the Applicant would face harm of any kind from the authorities at state or national level for these reasons. It noted that he did not claim to fear harm for any other reason in India and found that no other reason was apparent on the face of the information before it relevant to an assessment of the complementary protection criteria.
Having considered the Applicant’s claims individually and cumulatively, the Tribunal was not satisfied that he met the complementary protection criterion. It affirmed the decision of the delegate.
The Applicant sought review by application filed on 4 September 2015. He filed an application and a supporting affidavit. He has not filed any other documents. When given the opportunity today to make oral submissions in relation to the grounds in his application and to raise any other concerns about the Tribunal decision or procedures, he had nothing to say.
The first ground in the application is that the Tribunal failed to comply with s.424A read with s.424AA of the Migration Act 1958 (Cth) (the Act). It sets out some of the obligations under that section. The particulars to this ground are that the Tribunal did not issue any written invitation under s.424A of the Act and made no attempt to and did not comply with the requirements set out in s.424AA of the Act.
The Applicant has not particularised any information that he says attracted obligations under s.424A(1) of the Act. I gave him the opportunity today to indicate what information it was that he said the Tribunal had not put to him and he was unable to identify any such information.
It is the case that there is no evidence of any s.424A letter, but nor is there anything in the material before the court to indicate that there was any information that enlivened such obligation. The Tribunal’s decision was based on inconsistencies between the written account presented by the Applicant in his protection visa application and his oral evidence at the Tribunal hearing and other deficiencies in the Applicant’s evidence at the Tribunal hearing.
Inconsistencies and the Tribunal’s thought processes are not in themselves information for the purposes of s.424A of the Act (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 at [18]) and written information that the Applicant gave during the process that led to the decision under review, such as in his protection visa application, is outside the operation of s.424A(1) of the Act (see s.424A(3)(ba)). Insofar as the Applicant alleged a failure to comply with the requirements of s.424AA of the Act, that section provides an alternative means by which the Tribunal may discharge its obligations under s.424A(1) by putting evidence to an applicant in accordance with the requirements of that provision during a Tribunal hearing (see SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415; [2009] FCAFC 46).
As indicated, there is nothing to suggest that any material gave rise to an obligation under s.424A(1) of the Act such as to enliven the opportunity for the Tribunal to comply with s.424AA of the Act. There is nothing in the Tribunal’s account of what occurred at the hearing relevant to this issue and there is no evidentiary basis for an assertion that the Tribunal unsuccessfully attempted to comply with the requirements of s.424AA of the Act, if that is what was intended by this ground. Ground 1 is not made out.
Ground 2 is a generalised and unparticularised ground which, as the First Respondent said, can be described as a familiar “template” ground. It is that the Tribunal “had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act”.
The Applicant was unable to assist in any way in explaining what was intended by this ground. There is nothing in the material before the court to suggest that the Tribunal had no jurisdiction or that it failed to act reasonably, either in the exercise of any discretion or in its decision. In terms of procedures, the Applicant sought a hearing by way of video link. The Tribunal agreed and he had that opportunity. No issue arises in that respect. The credit finding was reasonably open to the Tribunal on the material before it for the reasons it gave.
Ground 2 is not such as to establish or disclose any jurisdictional error.
Finally, in the affidavit accompanying his review application the Applicant claimed to be an active member of the AISSF and also a member of the Khalistan movement and to have been tortured by the authorities and continued:
The Tribunal decision was unjust and was made without taking into account the full gravity of my circumstances and the consequences of the claim.
Insofar as this is a contention that the Tribunal failed to have regard to integers of the Applicant’s claims, it is not made out. As the Tribunal recorded, at the hearing the Applicant expressly disclaimed any reliance on claims in relation to the Khalistan movement. Indeed, when asked why he would have said in his application that he was a member of the Khalistan movement if he was not such a member, he said that he wrote it by mistake.
As to the AISSF claim, the Tribunal considered the claims the Applicant presented in that respect as explained and elaborated on at the Tribunal hearing. However, as indicated, for reasons which it gave which were reasonably open to it on the material before it, the Tribunal made an adverse credibility finding and was not satisfied that the Applicant was ever a member of the AISSF or, indeed, the Khalistan movement or involved with them in protests in his village or in any other way. It cannot be suggested that the Tribunal failed to consider these claims. Beyond this, insofar as the Applicant takes issue with the Tribunal’s findings, he seeks impermissible merits review.
There is nothing in the material before the court to support any general contention of procedural unfairness or that the Tribunal decision was otherwise “unjust”.
As no jurisdictional error has been established on any basis contended for by the Applicant, the application must be dismissed.
As the Applicant has been unsuccessful he should pay the Minister’s costs. The costs sought are (appropriately) less than those provided for in the Schedule to the Federal Circuit Court Rules.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 21 March 2017
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