SZSOB v Minister for Immigration
[2014] FCCA 486
•10 March 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSOB v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 486 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – whether Tribunal failed to engage in an active intellectual process in regards to documents provided to it by the applicant – whether Tribunal required to give applicant benefit of the doubt – whether Tribunal required to make inquiries – whether Tribunal biased. |
| Legislation: Migration Act 1958 (Cth) s.65 |
| Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Abebe v Commonwealth (1999) 197 CLR 510 |
| Applicant: | SZSOB |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| First Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 178 of 2013 |
| Judgment of: | Judge Raphael |
| Hearing date: | 10 March 2014 |
| Date of Last Submission: | 10 March 2014 |
| Delivered at: | Sydney |
| Delivered on: | 10 March 2014 |
REPRESENTATION
| For the Applicant: | In Person |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
Application dismissed.
Applicant to pay the respondents’ costs assessed in the sum of $5,750.00.
The name of the First Respondent be amended to ‘Minister for Immigration and Border Protection’.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 178 of 2013
| SZSOB |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of India, resident in the State of Kerala. He is a Muslim. He entered Australia on a business visa issued to him in Oman and, on 24 January 2012, he applied for a Protection (Class XA) visa under the s.65 of the Migration Act 1958 (Cth).[1] On 19 June 2012 the delegate of the Minister refused to grant a protection visa and the applicant applied to the Refugee Review Tribunal for review of that decision. The applicant attended a hearing before the Tribunal. On 8 January 2013 the Tribunal determined to affirm the decision under review.
[1] The ‘Act’.
The ground upon which the applicant claimed to be a person to whom Australia owed protection obligations was the Convention one of religion. The applicant told that in or around March 2010 an examination paper set for commerce students at Newman College in his home State, contained a question which made reference to a person by the name of Mohammed. It would appear that the Muslim residents of that area considered that the way in which the question was phrased constituted a heretical attack upon Islam. These views resulted in some radicals attacking the Christian lecturer who had set the question and amputating both of his hands.
There were two aspects of this incident, which the Tribunal accepted occurred, that involved the applicant. The first was his claim that in the mosque in his home town he had made a suggestion that perhaps the question had been misinterpreted by the radicals. This was taken apparently as a criticism of the National Democratic Front (NDF), a political organisation that had associations with the Popular Front of India and, as a result, his family were threatened, stones were thrown at his house and the applicant placed his wife and children in a hostel for their own safety. In the meantime, he travelled back to Oman where he had been working and where he ran a business of selling mobile phones.
The second way in which the examination incident affected the applicant was that he said that his friends had been involved in the communal riots following the incident in March 2010 that spilled over into a local hotel that he had been staying at, upon his return from Oman. He claimed that some NDF activists had caused property damage to the hotel. The hotel had got some CCTV footage which he believed identified him as being a rioter when, in fact, all he was doing was going to see what was occurring. He believed that he would be in danger of being arrested and prosecuted, should he return to India.
The applicant produced in support of his claim some written documentation, including some extracts from newspaper reports and an affidavit from his father. He also indicated to the Tribunal some scars that he had, which he alleged were evidence of an attack made upon him.
The Tribunal questioned the applicant upon his story and pointed out to him certain inconsistencies in his evidence. In particular, it noted that until the Tribunal had mentioned the matter the applicant had not referred to the second of the two claims, although he had made it before the delegate. The Tribunal discussed with the applicant the documentary evidence that he had produced and noted its concerns about the possibility that some of these newspaper reports might not be genuine. It discussed with the applicant the fact that he had not left India for some time after the incidents he refers to, and then he went back to Oman and made visits to Europe, but did not claim asylum in any of the countries which he visited:
“Particularly puzzling is the applicant’s visit to Amsterdam for less than a week in August 2011, and return without applying for protection. The applicant’s evidence about this was guarded and unforthcoming. The Tribunal considers possible that he did have a conversation with a Punjabi cook about being able to work and stay in The Netherlands. However, it was only in response to the Tribunal’s further questions that the applicant said that he also spoke with other people, and learned that the Dutch have a very difficult immigration/refugee policy. The Tribunal is concerned that the applicant did not make official inquiries about protection in The Netherlands or explore his options for refugee protection in other Schengen countries. His evidence strongly suggests that he went there to explore a work prospect. This, together with his return to India, casts strong doubt on his need for protection in, India for any reasons.” [72 CB174]
In its findings and reasons the Tribunal explained why it considered that the applicant’s evidence was not credible. It believed his accounts of his claims were vague, piecemeal and changeable; and that his travel to and from India, from mid-2010 until his departure for Australia, was inconsistent with a genuine fear of persecution. It was concerned that the applicant did not report the stone throwing or menacing actions to the police, and in regard to the applicant’s claim that he had been assaulted on return to India in February 2011 as part of the NDF campaign against him, the Tribunal found it difficult to see how a single passing comment from the applicant in early July 2010 could generate such sustained adverse interest. And why:
“even after the February 2011 attack, the applicant continued to make return visits to India.” [73 CB174]
The Tribunal considered the corroborative evidence provided by the applicant, but did not give it much weight. It considered that the newspaper reports that referred to the applicant were suspiciously similar, even though there was some lengthy period of time between them. It considered that the father’s affidavit was no more than would have been expected from any father trying to support a son. The Tribunal concluded that the applicant had no part in the incidents surrounding the Newman College outrage, and that he was not a person to whom Australia owed protection obligations.
On 31 January 2013 the applicant filed an application with this Court seeking review of the decision of the Tribunal. On 29 August 2013 he filed an amended application. There were essentially three grounds of that application. The first was:
“The applicant provided documents to the Tribunal to corroborate his claims. The Tribunal failed to engage in an active intellectual process of these documents. The Tribunal ultimately gave the documents no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the documents without engaging to the contents of these documents. It was an error for the Tribunal to assess the applicant’s credit without first assessing whether the substance of the documents corroborated her claims.” [emphasis added]
It can be seen immediately that this is a rather poor copy of another person’s grounds of application. It is not sustainable because the Tribunal did not come to a conclusion about the corroborative evidence based upon the applicant’s credibility. It came to a conclusion about the corroborative evidence based upon independent country information concerning document fraud in India that had been discussed with the applicant. It came to those conclusions based upon its own concerns about the veracity of the documents. Insofar as the documents included the father’s affidavit, the Tribunal explained why it gave it little weight.
The weight that is to be given to evidence produced before the Tribunal is a matter for the Tribunal itself: Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164. The Tribunal engaged in an active intellectual process with regard to its consideration of those documents, as can be seen from a reading of the decision record. It expressed its concerns to the applicant and explained them in the findings.
The second ground of application was:
“The Member of the Tribunal erred in that it ought to have held that on the evidence before the Tribunal it was open to the Tribunal to find that the applicant was a refugee within the meaning of the Act. In such circumstances the Tribunal erred in that:
a. it failed to properly apply the consideration that the applicant’s [sic] for refugee status ought to be given the benefit of the doubt in circumstances where the Tribunal entertained the possibility that the applicant’s claims are plausible, which was the case here.”
The first part of this ground would appear to be asking for a merits review that is impermissible in this Court. The second part of the ground assumes that the Tribunal entertained the possibility that the applicant’s claims were plausible. It did not do so. It accepted that the incident that the applicant claimed had occurred in his home town had occurred, but that does not mean that it accepted that the applicant was involved in it, or that the consequences of the incident affected him. It did not do so for reasons that it provided and which were entirely within its remit. This ground cannot succeed.
The third ground was:
“The Tribunal has failed to investigate the claim, specially [sic] the grounds of persecution in India. Therefore, the Tribunal’s decision dated 8 January 2013 was affected by actual bias constituting judicial error.”
The failure of the Tribunal to investigate the applicant’s claims was the subject of his oral submission to the Court at hearing. The High Court has now confirmed, in Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15, that the circumstances in which the Tribunal is required to investigate claims are rare and strictly limited. This was originally determined by Wilcox J, in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170. The extremely limited circumstances in which the Tribunal may fall into jurisdictional error if it fails to conduct an inquiry are when its failure involves a critical fact, the existence of which is easily ascertained and which might have affected the decision. Such cases are extremely rare.
What is clear from the applicant’s submissions to the Court is that he expected the Tribunal to make investigations in India as to the truth of what he was saying. That is not a matter for the Tribunal. It is a matter for the applicant to establish his claim and to satisfy the Tribunal of its genuineness: Abebe v Commonwealth (1999) 197 CLR 510. This ground cannot succeed either.
When the applicant appeared before the court today he told it that the document given to the Tribunal by his father was “not even considered”. This is simply not the case. The Tribunal considered the affidavit of his father and gave reasons why it did not give it much weight.
The applicant criticised the Tribunal for its criticism of him of not being aware of who the people who attacked him were. It is not clear whether that did occur, from the decision record, but the court notes at [72 CB173] that the applicant had told the Tribunal that he had knowledge of people within the NDF, and this may be why the Tribunal queried whether or not he knew those who had attacked him.
The applicant told the court that it was not safe for him to return to India, that his wife and children remained in India, and that his parents had since moved to Dubai. This is not a matter that goes to the jurisdiction of the Tribunal and cannot be taken into account by the court.
The court is satisfied that the applicant has failed to make out the grounds of review and therefore the application must be dismissed. He must pay the respondent’s costs which I have assessed at the sum of $5,750.00. The court will also make an order that the name of the first respondent be amended to the Minister for Immigration and Border Protection.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Raphael
Associate:
Date: 13 March 2014
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