SZROQ v Minister for Immigration, Multicultural Affairs and Citizenship

[2013] FCA 833

FEDERAL COURT OF AUSTRALIA

SZROQ v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 833

Citation:		SZROQ v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 833
Appeal from:		SZROQ v Minister for Immigration and Citizenship [2013] FCCA 424
Parties:		SZROQ v MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
File number:		NSD 946 of 2013
Judge:		FARRELL J
Date of judgment:		16 August 2013
Catchwords:		MIGRATION – judicial review – Refugee Review Tribunal – Federal Circuit Court – impermissible merits review – whether obligation to provide a second hearing – no obligation to provide particulars of country information
Legislation:		Migration Act 1958 (Cth) ss 36(2), 65, 91R, 424A, 425 Federal Court Rules 2011 (Cth) schedule 3
Cases cited:		Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 58 ALD 609 Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15 Minister for Immigration and Citizenship v SZMOK (2009) 110 ALD 15 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALD 224 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 56 SZROQ v Minister for Immigration & Anor [2013] FCCA 424
Date of hearing:	13 August 2013
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	30
Counsel for the Appellant:	The Appellant appeared in person
Solicitor for the First Respondent:	Ms F Taah of Australian Government Solicitor
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 946 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZROQ
Appellant

AND:

MINISTER FOR IMMIGRATION,  MULTICULTURAL AFFAIRS AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FARRELL J
DATE OF ORDER:	16 AUGUST 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs fixed in the amount of $2,100.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 946 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZROQ
Appellant

AND:

MINISTER FOR IMMIGRATION,  MULTICULTURAL AFFAIRS AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FARRELL J
DATE:	16 AUGUST 2013
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. By notice of appeal filed on 30 May 2013, the appellant appeals from a decision of the Federal Circuit Court of Australia: SZROQ v Minister for Immigration & Anor [2013] FCCA 424 (SZROQ), which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (Tribunal) made on 25 May 2012.

   BACKGROUND

2. The appellant is a citizen of India who arrived in Australia on 2 August 2009 on a student Subclass 572 visa. The visa was valid until 4 August 2010. On 21 October 2011, the appellant applied for a Protection (Class XA) visa pursuant to s 36(2) of the Migration Act 1958 (Cth) (Migration Act).  On 16 February 2012 a delegate (Delegate) of the first respondent (Minister) refused the appellant’s application.  The appellant applied to the Tribunal for review of the Delegate’s decision on 7 March 2012.

   CLAIMS TO PROTECTION

3. In his visa application, the appellant claimed protection on the basis of his religion, but provided no detail of the claim.  He said that he had attained 12 years of school and worked on a farm before coming to Australia.

4. At the interview with the Delegate on 31 January 2012, the appellant said that he was married in April 2009.  He came to Australia as a dependant of his wife who had a student visa.  His wife returned to India in August 2010.  He claimed to have joined the Babbar Khalsa party while he was studying.  He said that Babbar Khalsa belongs to the Sikh community and was formed in 1984 after an attack on the Golden Temple.  He claimed to have participated in about 15 protests.  He received threatening phone calls and was beaten by members of the Congress Party: he was warned to stop being a member of the Babbar Khalsa party.  The appellant claims that should he return to India, members of the Congress Party or their agents will bash him and/or kill him.

5. At the hearing before the Tribunal the appellant said that he paid no money to join the Babbar Khalsa party.  He attended eight to ten protests from 2004 to until 2005/2006 and during these protests he promoted Sikh rights by ‘raising slogans’ against the government and speaking out in public; as part of the protests he went to town halls and shouted slogans at mayors.  The appellant claimed to have been detained twice by the police in 2005; the first time for two or three days and the second time for 15 to 20 days.  He also claimed that after his second detention, the police made a file to keep a record of his activities.  The appellant claimed that in 2006 the police began visiting his house and troubling him; he was scared of the local police.  He could not afford to relocate within India.  Subsequently, and after the government allegedly started to catch members of the Babbar Khalsa party, the appellant claimed to have stopped participating in the movement in 2006.  He was not aware of the party’s alleged terrorist activities.

6. The appellant submitted to the Tribunal that he would be precluded from applying for government jobs in India because of his membership of a particular social group, specifically, the Jatt caste, who according to the appellant are prohibited from applying for such positions after the age of 23 or 24.  The appellant also mentioned that his wife had applied for a divorce and he feared that his parents-in-law will torture him upon his return to India, because they believe that the appellant owes them money for helping him and his wife to travel to Australia and they would take “any lengths to get the money”. 

   THE TRIBUNAL’S DECISION

7. In its decision record handed down on 25 May 2012, the Tribunal stated that it was not satisfied that the appellant was a member of Babbar Khalsa.  The Tribunal found that the appellant had failed to provide any information about the structure or activities of Babbar Khalsa and noted that the appellant was unable to name the leader of the organisation; he was unaware that it was a paramilitary group and part of its focus was to attack moderate Sikhs or that it had been responsible for setting off bombs at two cinemas during the time the appellant claimed to be a member.  Based on the appellant’s ignorance of Babbar Khalsa, the Tribunal did not accept that: the appellant was ever a member of Babbar Khalsa, that he had ever been detained by police for that reason, that members of the Congress Party would persecute him because of his claimed membership of Babbar Khalsa or that he will engage in any activities associated with Babbar Khalsa upon his return to India.  Accordingly, the Tribunal did not accept that the appellant had a well founded fear of persecution on the basis of his membership of Babbar Khalsa.

8. The Tribunal stated that it was prepared to accept that the appellant was a Sikh, sympathetic to pro-Sikh causes and had attended pro-Sikh protests and rallies, but it found no country information that suggested that a mere supporter (as opposed to an activist) of pro-Sikh movements was under any threat from the government or the Congress Party.  Accordingly, the Tribunal did not accept that the appellant had a well founded fear of persecution for supporting the Sikh cause.

9. On the claims regarding employment discrimination, the Tribunal was unable to find any age discrimination in the form described by the appellant.  The Tribunal noted that a Union Public Service Commission Recruitment website had stipulated age limits for various categories of Indian public sector jobs but none were in the terms described by the appellant.  While the Tribunal accepted that the policy could fall within the definition of discriminatory conduct, it did not accept that it amounted to persecution.  Further, the Tribunal noted that there was a lack of evidence to suggest that these policies applied in the private sector and noted that the appellant had not previously worked in the public sector.  For these reasons, the Tribunal did not accept that the appellant had a well founded fear of persecution because of his membership of a social group.

10. Regarding his fear of torture by his parents-in-law, the Tribunal considered that this claim did not fall within a Convention reason. Further they had taken court proceedings to recover the alleged debt. The Tribunal did not accept that they would resort to torturing the appellant while they have legal proceedings on foot. The appellant acknowledged that they had not made an explicit threat; he had inferred it. Accordingly, the Tribunal did not find that the appellant met the complementary protection criteria in s 36(2)(aa) of the Migration Act.

    THE PROCEEDINGS BEFORE THE FEDERAL CIRCUIT COURT

11. The appellant applied to the Federal Circuit Court of Australia for judicial review of the Tribunal’s decision on 21 June 2012.  He relied on the following grounds:

    1.The applicant claimed he would face employment discrimination because he was a member of the Jatt caste. The Tribunal found at paragraph 68 that “given the family resources (the farm), the tribunal does not accept that the applicant will face any significant economic hardship or denial of access to basic services or denial of capacity to earn a living”. The last time the applicant worked on the farm was in 2004 and there was no evidence before the Tribunal that the applicant’s father had capacity to employ the applicant on the farm or otherwise support the applicant. In the circumstances, the Tribunal’s finding involved jurisdictional error.

    2.The Tribunal found at paragraph 59 of its decision that “the applicant was unable to provide any information about the organisation’s structure”, being the structure of Babbar Khalsa. The Tribunal did not ask the applicant questions about the structure of Babbar Khalsa. In the circumstances the Tribunal’s finding involved jurisdictional error.

12. In response to ground one, the Federal Circuit Court found that in finding that the appellant would not face employment discrimination based on his caste, the Tribunal had relied upon country information from the Indian Public Service Commission. His Honour held that that information provided the Tribunal with a sufficient basis to lawfully find that the appellant would not face employment discrimination on the basis of his caste: [12] and [14] SZROQ.

13. As to ground two, his Honour found that the statement of the Tribunal should be considered in the context of the Tribunal’s record of decision.  His Honour found that the Tribunal was not speaking just of Babbar Khalsa’s structure, but also of its activities.  In particular, his Honour found that the Tribunal was referring to the appellant’s unawareness of Babbar Khalsa’s status as a paramilitary organisation that had been accused of terrorist activities, of which the appellant had denied awareness.  As a result, his Honour held that it was open to the Tribunal to make the finding that the appellant had been unable to provide any information about Babbar Khalsa’s structure and activities: [16]-[19] SZROQ.

14. At the hearing at the Federal Circuit Court, the appellant suggested that he should have been given, but was denied, a second hearing before the Tribunal.  His Honour noted that the appellant did not point to any evidence that would suggest that the Tribunal should have given the appellant a second hearing, nor did the appellant point to any part of the decision that suggested that the Tribunal perceived or had been told he was nervous such that a second hearing would have been considered: [21]-[22] SZROQ.

15. For these reasons, his Honour held that the appellant did not demonstrate jurisdictional error on the part of the Tribunal and his application was dismissed.

    THE APPEAL PROCEEDINGS

16. The appellant filed a notice of appeal on 30 May 2013.  It relied on the following grounds.  The grounds were numbered 2 to 8 in the notice of appeal, but for convenience I have numbered them conventionally.  Spelling and grammatical errors were in the original notice:

    1.   The Federal Magistrate erred in law in deciding my application not finding that the Tribunal did not consider that I was not a victim of persecution for my political belief prior to my departure from India as a member of Babbar Khalsa.

    2.   The Honourable Federal Magistrate did not find that there was a lack of procedural fairness in the decision of the Refugee Review Tribunal as the Tribunal failed to consider that I was detained by police and my fear of harm as a member of Babbar Khalsa is genuine and well founded and I was not accept by Tribunal as a credible witness.

    3.   The Honourable Magistrate made errors of jurisdiction not considering the Tribunal’s failure to give me a reasonable opportunity to respond to independent evidence in the possession of the Tribunal which suggests that I shall not be a victim of harassment for my political belief if returned to India.

    4.   The Federal Magistrate made error to find that the Tribunal failed to accept that the persecutions I experienced in India were genuine and well founded and my life was under threat in India and the Tribunal refused my claim on the ground that I am not a credible witness for my claims though I presented the facts of my persecutions before the Tribunal at the time of hearing.

    5. The Federal Magistrate erred in not finding that the Tribunal erred in law amounting to jurisdictional error in finding that I do not have genuine fear of persecution for a convention reason and I do not meet the criteria set out in s.36(2) of the Act of Protection visa;

    6.   The Federal Magistrate erred in not finding that the Tribunal refused my application on the ground that I could be relocated in another part of India. The Tribunal failed to find that it is not possible for a person like to be relocated to other parts of India due to existing socio-economic conditions which may not be favourable for me to be relocated.

    7.   The Federal Magistrate erred in law not finding that the Tribunal failed to consider that I was discriminated for my religious belief and I had very limited access to public service. The Tribunal failed to consider that I shall be the victim of significant harassment for my political and religious belief if I return to India now or in the foreseeable future and my persecution is Convention related.

17. The appellant appeared in person with an interpreter before this Court.  He provided no written submissions but did provide some oral submissions as follows:

    ·Ground 1: The Tribunal did not listen to the appellant’s story or read his case carefully enough.  The Tribunal finished its consideration of his claims after the hearing on 16 May 2012 by providing the decision letter a few days later without giving him an opportunity to provide proof of his claims.  The Tribunal should also have made inquiries with the police and about his membership of Babbar Khalsa.  The appellant confirmed that at the Tribunal hearing, the Tribunal member did not ask him to provide further evidence of his claims and he did not offer to do so.

    ·Ground 2: The Tribunal failed to provide procedural fairness because it did not believe the appellant’s claims.

    ·Ground 3: The independent evidence (country information) which was used by the Tribunal to assess his claim was not relevant.  In the eyes of the police he is a criminal because of his membership of Babbar Khalsa.  If he returns to India he will be arrested.

    ·Ground 4: The appellant reiterated his complaint that the Tribunal did not give him another opportunity by a second hearing to provide evidence to support his claims and to make his point more clearly.

    ·Ground 5: The Tribunal misapplied the law.

    ·Ground 6: The Tribunal failed to take account of the fact that the appellant cannot afford to relocate within India.  He is not rich and could not afford to buy a house.

    ·Ground 7: The appellant offered no submissions on this ground.

18. These submissions were provided in response to questions by the Court in relation to each ground; it was apparent that the complaints raised by the appellant though given in relation to specific grounds (1-5), they are also generalised complaints about the Tribunal’s decision.

19. The Minister provided written submissions and his representative provided oral submissions in relation to the grounds raised by the appellant.

    CONSIDERATION

20. The grounds of appeal were not, with one exception, raised in the appeal to the Federal Circuit Court.  The exception is the argument which the appellant raised before his Honour that he should have been given, but was denied, a second hearing before the Tribunal.

21. The common thread of Grounds 1, 2, 4, 6 and 7 and the submissions made by the appellant at the hearing is that the Tribunal did not, but should have, believed the appellant’s claims.  The Minister submitted that these grounds and arguments should be dismissed as inviting impermissible merits review.  So long as the Tribunal applies the correct legal test and does not reach a conclusion which is so unreasonable as to authorise review, the merits of a case, including matters of weight to be given to items of evidence and the credibility to be attached to witnesses are for the Tribunal to determine: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 58 ALD 609.

22. The Tribunal’s decision record contains standard paragraphs dealing with the provisions of the Migration Act and High Court authority relevant to its task: [6]-[21]. Noting that there were no corroborative documents supporting the appellant’s claims, the Tribunal uncontroversially determined that its first step was to assess the credibility of the appellant: [54]. I do not consider that the Tribunal erred when it said at [55]-[56]:

    The tribunal was very mindful of the comments of Kirby J in S20/2002 [Re Minister for Immigration and Multicultural Affairs; ex parte S20/2002 (2003) 77 ALJR 1165 at [134]] that:

    “….it affords no foundation for the Tribunal to proceed to a premature evaluation of the “plausibility” of his story.  On the contrary, that may be a path fraught with dangers.  Claims of extreme persecution may often at first seem to a person far removed from the context in which the events are said to have taken place, to be far-fetched.”

    By the same token the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well founded” or that it is for that reason claimed. It remains for the applicant to satisfy the tribunal that all of the statutory elements are made out. Although the concept of the onus of proof is not appropriate to administrative enquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision maker is not required to make the applicant’s case for him or her. Nor is the tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Ano (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

1. While the Tribunal does not state explicitly that it did not find the appellant a credible witness, it states expressly that it does not accept the appellant’s claims that he was a member of Babbar Khalsa [58], or that he was involved in political activity in a significant way [62], or that he was detained by police or that members of the Congress Party would harm him for that reason or that he would engage in activities associated with Babbar Khalsa if he returns to India [60], or that the Indian Government’s public service employment policies amount to persecution within s 91R of the Migration Act [68]-[69]. The Tribunal also did not accept that the complementary protection provisions of s 36(2)(aa) of the Migration Act applied to the appellant because it did not accept that if he returned to India he would face harm for participating in activities with Babbar Khalsa or face significant harm from employment discrimination by reason of his Jatt caste or significant harm from his parents-in-law [73]-75].

2. I consider that the Tribunal’s reasons for not accepting the appellant’s claims are rational and logical and that they are open to the Tribunal. Those reasons include the appellant’s apparent lack of awareness of significant matters related to Babbar Khalsa which he might reasonably be expected to know if he was a member: for instance, that it is a paramilitary organisation, the names of its leadership and that during the period of his claimed membership Babbar Khalsa was involved in bombings of cinemas and activists were arrested with explosives and weapons [59]-[60]. The Tribunal did accept that the appellant is Sikh, supports Sikh causes and attended pro-Sikh rallies while in India but country information did not indicate that support for the Sikh community (in the absence of being an activist) would expose the appellant to risk [62]. Contrary to the appellant’s contention, the Tribunal is entitled to take into account country or other independent information about the prevailing circumstances in a country or region of a country in assessing claims where that information is relevant and available, as here. It is true that the individual circumstances of the appellant cannot be ignored and must be taken into account, but where there is no corroborative evidence offered by the appellant, for instance, in relation to his detention, it is open to the Tribunal to prefer the country or independent information as to prevailing circumstances.

3. It is also open to the Tribunal to think, where the appellant says that legal proceedings have been commenced by the appellant’s parents-in-law to recover the debt which they claim, that he will not face torture by them in the absence of an explicit threat.  It is also open to the Tribunal to consider that the appellant does not relevantly face persecution as a member of the social group comprising the Jett caste by reason of the Indian Government’s employment policies when the published policies which are referred to in the Tribunal’s decision record would indicate that government service is open to a person of the appellant’s age and he has never been employed by the Government.  It is open to the Tribunal to note that there are other possible avenues of earning an income which might include employment by private enterprise or work on the family farm. 

4. It is not open to this Court to interfere with these findings of the Tribunal: to do so would involve impermissible merits review.  For these reasons I reject grounds 1, 2, 4, 6 and 7 and the associated submissions made at the hearing and I consider that his Honour did not err in rejecting the grounds of appeal to the Federal Circuit Court.

5. I must therefore also reject Ground 5 because if it was open to the Tribunal to consider that the appellant was not a member of Babbar Khalsa and that he was therefore not exposed to the harms derived from that membership as he claimed, the Tribunal cannot have misapplied s 36(2) in that respect. Nor can the question of relocation have any relevance as suggested in Ground 6. In relation to the appellant’s claims to significant harm from employment discrimination or torture by his parents-in-law, given the Tribunal’s findings which were open to it, the Tribunal also did not misapply s 36(2) in those respects.

6. As to Ground 1 and the appellant’s oral submissions concerning Ground 4, the appellant’s contentions that the Tribunal had an obligation to conduct enquiries with the Indian police or into his membership of Babbar Khalsa or to provide him with a further hearing cannot be maintained. The duty imposed upon the Tribunal by the Migration Act is a duty to review. The Tribunal has no obligation to make its own inquiries: Minister for Immigration and Multicultural and Indigenous Affairs vSGLB (2004) 78 ALD 224 at [43] per Gummow and Hayne JJ. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review: Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15 at [25]. However, that is not the case here. Further, both at the hearing in this Court and before his Honour, the appellant admitted that the Tribunal did not invite him to provide further evidence and he did not ask for the opportunity to do so: contrast NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1; see also Minister for Immigration and Citizenship v SZMOK (2009) 110 ALD 15 at [65]. The function of the Tribunal is to respond to the case that the applicant advances: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321 per Kirby J at 337; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58]-[60]. The appellant was given the opportunity to present evidence and arguments as required by s 425 of the Migration Act at the hearing on 16 May 2013, and he did so. As to the appellant’s oral submission before his Honour in the Federal Circuit Court that he should have been offered another opportunity for a hearing because he was scared and made mistakes, his Honour did not err in rejecting that submission. The fact that the appellant may have been ill at ease or did not present his case in the best light will not be enough to ground a finding of jurisdictional error or constitute a breach of s 425 of the Migration Act: NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 56 at [51]-[52] per Branson J.

7. As to Ground 3, by reason of s 424A(3) of the Migration Act, the Tribunal had no obligation to provide to the appellant particulars of the country information, as it is not information specific to the appellant. The record of decision of the Tribunal indicates that the Tribunal did put to the appellant matters raised by the country information: see [43].

8. For these reasons I dismiss the appeal. The Minister’s representative provided an affidavit of Freda Taah sworn on 12 August 2013 in relation to costs incurred by the Minister in respect of the appeal to this Court on a solicitor client basis as exceeding $2,100. In proceedings such as these, I do consider it useful that the Court be put in a position to order fixed costs. However, the Minister has provided no argument to justify an award of costs on an indemnity basis, nor is it obvious that such an argument would be successful. However, the amount claimed is approximately one third of the amount allowable under item 15.1(e) of Schedule 3 of the Federal Court Rules 2011 (Cth) and it does not include any amount in respect of appearance at the hearing. Accordingly I will order that the appellant pay the first respondent’s costs fixed at $2,100.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.

Associate:

Dated:        16 August 2013