SZRSZ v Minister for Immigration

[2013] FCCA 524

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRSZ & ORS v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 524

Catchwords:
MIGRATION – Review of decision of RRT – no basis for a finding of jurisdictional error.

First Applicant: SZRSZ

Second Applicant: SZRTA

Third Applicant: SZRTB

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1859 of 2012

Judgment of: Judge Raphael

Hearing date: 4 June 2013

Date of Last Submission: 4 June 2013

Delivered at: Sydney

Delivered on: 4 June 2013

REPRESENTATION

For the Applicant: In person

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. Application dismissed.

2. The First and Second Applicants to pay the First Respondent’s costs assessed in the sum of $4,500. 

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1859 of 2012

SZRSZ

First Applicant

SZRTA

Second Applicant

SZRTB

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The three applicants in this matter are citizens of India who departed their country of origin in August 2011 and on 13 September 2011 applied to the Department of Immigration for protection (Class XA) visas.  It was only the male applicant who completed Form B.  His wife and child completing Form D indicating that they had no separate claims to be refugees but were included in the application of the male applicant.  On 13 December 2011 a delegate of the Minister refused to grant a protection visa and the applicant sought review of that decision from the Refugee Review Tribunal.  The Tribunal held a hearing which the first applicant[1] attended and on 30 July 2012 affirmed the decision not to grant the applicants protection visas.

   [1] “applicant”

2. The ground upon which the applicant claimed he was a person to whom Australia owed protection obligations was the Convention one of political opinion.  The applicant told that he was a member and activist in the BJP.  He claimed that he had joined that party in 2007 after he became interested in it because of his father’s activities.  But as the Tribunal noticed he produced a membership card indicating that his date of joining was some four years prior [CB 124].  The applicant became the organising secretary of a branch of the BJP in New Delhi which the Tribunal has found was an unpaid role that he undertook at night and on Sundays:

   “[76]He organised rallies for the BJP candidate for the Legislative Assembly, Dr Gupta.  The applicant’s evidence was that he encouraged people to vote for the BJP and this upset the Congress Party candidate, Mr Kanth and his supporters, some of whom, the applicant said, were gangsters.  Mr Kanth was from the Police Department.  The applicant stated that Mr Kanth threatened him and some of his “boys” came to his office in May 2008 to threaten him.  They broke furniture and equipment using hockey sticks and injured him and also slapped and kicked the office boy.  He said he required medical attention.” [ CB 143]

3. After this incident the applicant was advised by Dr Gupta to move away.  He did move to Azmagrah.  The Tribunal found that this move was more associated with his marriage than with any fear of the Congress Party bullies.  In any event, whilst he was in Azmagrah for three months he did not receive any threats from supporters of the Congress Party.

4. The applicant returned to Delhi in August 2008 after he had been told by Dr Gupta that it was safe.  The applicant told that Dr Gupta was a successful candidate in elections held in late 2008.  But notwithstanding this he recommended to the applicant that he move to Gurgaon which appears to be a town somewhat outside of Delhi.  The applicant claimed that between April 2009 and July 2011 when he left India he was the subject of continuing concern for his safety and that he was advised to leave the country in 2011.  He obtained a visa to enter Australia on 20 June 2011 and utilise it on 24 August.

5. Having considered the applicant’s evidence and questioned him upon it the Tribunal concluded that it did not believe that the applicant had given truthful evidence about his experiences in India, his reasons for leaving that country or his fears about returning thereto.  It did not accept that the applicant was a credible witness or his claims.  The Tribunal set out its reasons for coming to those conclusions at [CB 143 - 145]:

   “[85]The Tribunal has found that several aspects of the applicant’s evidence not to be credible particularly his central claim that an unsuccessful Congress Party candidate is still threatening his life, and that of his family, nearly four years after the election.  According to the applicant he has been receiving threats from the Congress Party since May 2008 despite ceasing to work for the BJP in December 2008 and relocating to Haryana.

   [86]The combination of the concerns above leaves the Tribunal to find the applicant has been untruthful in his evidence about the events in India and his reasons for leaving India and his fears about returning to India.  The tribunal does not accept that the applicant travelled to India to avoid persecution.  The Tribunal does not accept that there was a real chance that the applicant will face persecution in the hands of supporters of the congress party because of his political beliefs or any Convention reason in the reasonably foreseeable future if he returns to India.”  [CB 145]

6. On 27 August 2012 the applicant filed an application in this court seeking a review of the decision of the Tribunal.  There were two grounds of that application.  The first was:

   “1.The Refugee Review Tribunal (“the Tribunal”) found that “the applicant has been untruthful in his evidence about the events in India, his reasons for leaving India and his fears about returning to India”, and that “the Tribunal does not accept that the applicant was attacked at his business as claimed in May 2008 because of his support of the BJP nor that he and his family have been subject to ongoing harassment.”  The Tribunal fell into jurisdictional error in making these findings.”

7. The applicant was given an opportunity to expand upon this ground by filing an amended application but he did not do so.  On the face of it the ground is simply an argument with the factual findings of the Tribunal and if the court was to investigate the claim it would be providing the applicant with merits review and not judicial review.  Merits review is impermissible under the Migration Act.  There is nothing in the ground of application or what was said to me by the applicant today that indicates any jurisdictional error on the part of the Tribunal in making the findings which it did as to the applicant’s credibility.  Those findings were based upon evidence brought to the Tribunal by the applicant and a decision upon that evidence is a matter for the Tribunal “par excellence”.

8. The second ground was the Tribunal found that:

   “The applicant would be able to relocate away from Delhi or Gurgaon if he returned to India.  The Tribunal fell into jurisdictional error in making this finding.”

9. Once again the applicant has not assisted the court by providing any indication of what the jurisdictional error was in making that finding.  Mr Alderton in his helpful written submissions has made two comments upon it.  Firstly, he says that the Tribunal’s remarks concerning relocation which are found at [83] [CB 145] are not findings upon relocation per se but are findings made in the context of the Tribunal’s view of the credibility of the applicant.  In other words the statement by the applicant that he could not relocate from Gurgaon or Delhi was not credible and this added weight to the general finding of lack of credibility on the part of the applicant in relation to his claims of persecution. 

10. Given the context in which [83] appears I think that is a reasonable and proper interpretation of what was intended by the Tribunal.  But Mr Alderton also deals with the possibility that it is a separate finding upon relocation.  In response to that he says that even if it is found that the Tribunal did not properly address the relocation criteria when coming to that conclusion the finding it made was superfluous given the general finding that the applicant had no fear of persecution and it is that fear which is the jurisdictional facts upon which a claim for such a visa is based.  I think Mr Alderton was correct in making that submission.

11. In these circumstances there is nothing in the application or from what I heard from the applicant today, when he told me that he had told the truth to the Tribunal and that relocation was impossible, that provides me with any opportunity to provide him with the review he seeks. I dismiss the application and order that the first and second applicants pay the first respondent’s costs assessed in the sum of $4,500.00.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Date:  14 June 2013