SZSPO v Minister for Immigration
[2013] FCCA 1012
•16 July 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSPO v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1012 |
| Catchwords: MIGRATION – Application to review decision of the Refugee Review Tribunal – whether denial of procedural fairness or failure to consider claims of applicant – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules2001 (Cth) |
| Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 Minister for Immigration and Citizenship v SZMOK (2009) 257 ALR 427; [2009] FCAFC 83 Razai v Ministerfor Immigration and Citizenship [2012] FCA 394 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 SZRRH & Anor v Minister for Immigration & Anor [2013] FMCA 249 |
| Applicant: | SZSPO |
| First Respondent: | MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 348 of 2013 |
| Judgment of: | Judge Barnes |
| Hearing date: | 16 July 2013 |
| Delivered at: | Sydney |
| Delivered on: | 16 July 2013 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The name of the first respondent be changed to Minister for Immigration, Multicultural Affairs and Citizenship.
The application is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $4,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 348 of 2013
| SZSPO |
Applicant
And
| MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal dated 23 January 2013. 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, arrived in Australia in March 2012. He applied for protection in June 2012. In a statement accompanying his protection visa application he claimed to fear persecution as a Muslim who had engaged in an affair with a young Hindu woman who worked for him. He claimed that when the affair was discovered he was threatened by unknown men whom he understood were members of the woman’s family. He claimed that the woman’s family belonged to the Hindu community and followed the Bharatiya Janata Party (the BJP) political party.
The Applicant claimed that on 18 January 2010 he was beaten until he was unconscious by a group of unknown men and hospitalised for two months. He also claimed that in March 2010 he found out that the woman with whom he had had the affair had committed suicide. He explained that he travelled to England in May 2010 and that he wanted to apply for asylum there but that “the/ weather was too cold” and he was “sick almost everyday”. He returned to India in August 2010. He claimed he then moved around India. He applied for an Australian tourist visa in about December 2011 and travelled to Australia in March 2012.
The Applicant attended an interview with a delegate of the First Respondent. The delegate refused to grant the Applicant a protection visa. The Applicant sought review by the Tribunal on 22 October 2012.
On 5 December 2012 the Tribunal wrote to the Applicant inviting him to a hearing on 17 January 2013. The Applicant attended the Tribunal hearing.
In its reasons for decision the Tribunal described the claims made by the Applicant in connection with his protection visa application and at the Departmental interview. It also set out what it described as a summary of the relevant evidence and discussions at the Tribunal hearing. The only evidence before the Court of what occurred in the Tribunal hearing is the Tribunal reasons for decision.
The Tribunal summarised the Applicant’s claim as a claim that he was a Muslim who feared harm because he had had an affair with a Hindu divorced woman whose family discovered the affair and organised for him to be beaten and threatened. He claimed to fear that the woman’s family would kill him when they found him. He claimed he had not been able to go to the police in the past because the family of the woman, who subsequently committed suicide, was involved with the BJP. He claimed he could not relocate in India due to financial reasons.
The Tribunal accepted that the Applicant’s evidence about his background, financial and family circumstances in India “was generally consistent, coherent, and seemed to be provided … without difficulty”. However it found that “the same [could]-not necessarily be said in relation to the balance of [his] evidence and claims”. The Tribunal considered first the Applicant’s claim that he had had an affair. While it noted inconsistencies in the Applicant’s evidence about whether the affair lasted for a few years, three months or six months and over what period of time and considered aspects of his evidence about the affair “to be somewhat lacking in plausibility”, in light of his consistent evidence about some other aspects the Tribunal gave him the benefit of the doubt and accepted that he had had an affair. The Tribunal also accepted that, as the Applicant claimed, his wife had forgiven him.
However the Tribunal found, for reasons which it gave, that it was not prepared to accept the claimed events leading to the Applicant’s fear of persecution following on from the affair. The Tribunal found the Applicant’s evidence concerning the steps he took to avoid the claimed feared harm to be “unpersuasive, internally contradictory as well as contradictory to his documentary evidence”. It found that his responses to the concerns raised at the hearing were “vague, non-responsive, and unpersuasive”. The Tribunal was of the view that the Applicant had “fabricated the consequences of the affair” and that he was not a credible witness in that regard.
In reaching this conclusion the Tribunal took into account a number of factors, including the Applicant’s failure to make a protection visa application in the United Kingdom in 2010. It found that his explanation that he did not do so because the weather was too cold was “unconvincing”. It also had regard to his failure to leave India for the United Kingdom until three months after his English visa was granted and the fact that he had not provided a credible explanation for this delay. The Tribunal took into account the Applicant’s inconsistent evidence about why he applied for a visa to the UK and the fact that he had been granted the visa at a time which indicated that he must have formed the intention to apply for it before the claimed incident in which he was beaten up had occurred. The Tribunal found that this was before he had any claimed fear for his life.
The Tribunal also had regard to the Applicant’s delay of some 16 months in applying for a visa to come to Australia after he returned to India. It found his explanations in this respect to be “unpersuasive”. In addition, it had regard to his delay of one month in leaving for Australia after he was granted a visa.
The Tribunal took into account specified inconsistencies and changes in the Applicant’s evidence on a number of matters concerning the events following the affair, including the circumstances in which he claimed he returned to his home, what he did while he was there, and his claimed travel around India after the events.
The Tribunal found on the basis of these concerns that “the applicant [wa]s not a witness of truth concerning the aftermath of the affair”. It did not accept that he travelled through India or went to England or Australia to escape the aftermath of the affair, because it did not accept that there was an aftermath (except that his wife found out (albeit not from the woman’s family) and then forgave him). It did not accept that the woman’s family found out about the affair, that he received threatening phone calls or was beaten, that his shop was destroyed, that there were other threats made or that he faced harm from the BJP. Nor did it accept the other claims that he made about what he did after the claimed events. The Tribunal found no evidence to support any risk of harm to the Applicant as a result of the brief affair he had had some three years earlier. It found that he had experienced no trouble as a result of the affair or for any other reason in the next two years that he remained in his home village with his wife. It found that there was no credible evidence to suggest he would suffer any harm in the future because of the affair.
The Tribunal observed that at the hearing the Applicant had confirmed that the aftermath of the affair was the only reason for his fear of persecution. Despite this, the Tribunal went on to consider the possibility that the Applicant may be imputed with a political opinion by the BJP or by others. It had regard to the fact that he did not make such a claim and that he only referred to the woman’s connection to the BJP to explain why he did not seek police protection. It did not accept he faced any harm from the BJP or that he had a well-founded fear of persecution for an imputed or actual political opinion.
Nor did the Tribunal accept that the Applicant had a well-founded fear of persecution based on his original statement that “in his village, Hindus and Muslims have always had conflicts”. It noted that this remark had been made in the context of the Applicant’s specific claims relating to the woman with whom he had the affair. It had regard to the fact that at the interview with the delegate the Applicant claimed for the first time that he had been threatened in his village by Hindus because of his work in social services. However at the Tribunal hearing he had retracted that claim and stated that his only problem related to the woman with whom he had the affair. The Tribunal found that the Applicant did not fear harm as a result of conflict between Muslims and Hindus in his village or his work in social services. It found that there was no other evidence to indicate that there was any risk of harm to the Applicant for these reasons and that he did not have a well-founded fear of persecution for these reasons.
In addition the Tribunal considered the complementary protection criteria. It summarised its findings that the Applicant had had an affair three years earlier in his village, that his wife found out and forgave him, and that since then he had remained untroubled in his village apart from the times that he had travelled to the UK and Australia. It found that he had a home, an ability to work, a supportive family and that he was in good health with “no political, religious or any other problems in India”. The Tribunal found that, on the evidence, it was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed to India there was a real risk he would suffer significant harm for the purposes of s.36(2)(aa) of the Migration Act1958 (Cth) (the Act).
The Applicant sought review by application filed on 22 February 2013. He has not filed an amended application and did not file any affidavit evidence other than the initial affidavit annexing a copy of the Tribunal decision and repeating one of his grounds. He made oral submissions in the hearing today. It is convenient to consider first the grounds in the written application.
The first ground in the written application is as follows:
The Tribunal denied the applicant procedural fairness by reaching adverse conclusions that certain aspects of his claims were implausible, being conclusions that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.
The Applicant did not identify the particular adverse conclusions with which he took issue in support of this ground. There is nothing in the evidence before the Court either to establish an evidentiary basis for such a ground or to support any contention that there was failure by the Tribunal to comply with its obligations in Division 4 of Part 7 of the Act, let alone any broader procedural fairness obligation insofar as such obligation may apply (see s.422B of the Act and also Minister for Immigration and Citizenship v SZMOK (2009) 257 ALR 427; [2009] FCAFC 83 and SZRRH & Anor v Minister for Immigration & Anor [2013] FMCA 249).
As set out above, the Tribunal did make findings in relation to the reasons why it did not accept the aftermath of the affair as claimed by the Applicant, including a finding that his evidence concerning the steps he took to avoid the claimed fear of harm was unpersuasive. However, as the Tribunal went on to explain, it had regard to particular specific concerns and found that the Applicant’s various explanations for matters of concern were unpersuasive or did not satisfy it. Moreover it is apparent from the Tribunal account of the Tribunal hearing and its findings and reasons that the Tribunal raised issues of concern with the Applicant at the hearing, both generally and specifically. In particular, it put to the Applicant a number of issues of concern and gave him the opportunity to respond, explaining that such issues may lead the Tribunal to accept that all or none of the events claimed had occurred. After raising such specific issues, the Tribunal gave the Applicant the opportunity to say anything else he wished to say.
There is nothing in the evidence before the Court to suggest or establish that the Tribunal in any way failed to comply with its obligation under s.425 of the Act to invite the Applicant to appear to give evidence and present arguments relating to the issues arising in relation to the decision under review. In particular, there is nothing to suggest that the Tribunal failed to raise dispositive issues with the Applicant (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63).
Insofar as the Applicant might be taken as contending generally that the Tribunal was in some way obliged to put its thought processes to him, as indicated, the Tribunal raised dispositive issues at the hearing. Thought processes do not constitute information within s.424A(1) of the Act (see Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 and SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26). There is nothing to support any claim that the Tribunal was under any obligation to put information to the Applicant other than in the manner in which it did so at the hearing. This ground is not made out.
Ground two in the application is that “[t]he Tribunal failed to consider an integer of the Applicant’s claims, in failing to consider whether or not a Muslim in India was at risk of harm from Hindus, and not able to access effective protection”. It is the case that in the written statement accompanying his initial protection visa application the Applicant stated generally that “in [his] village hindu’s and muslims have always had conflicts” and also claimed that the Hindu woman’s family members belonged to the Hindu community and were followers of the BJP.
In his interview with the delegate the Applicant claimed to have been involved in social services in his village and that due to this he was threatened by Hindus in his village. However, on the evidence before the Court of what occurred in the Tribunal hearing, the Applicant confirmed on further questioning that he left India because he feared harm following the affair. The Tribunal recorded that it asked if there were any other reasons the Applicant feared returning to India apart from the affair and its aftermath. He said there were “a lot of problems between Hindus and Muslims but he has never had any problems with that issue” and he was not “scared of that”. He reiterated that his fear was because he had “received the death threat when he was beaten up”. When the Tribunal again asked him if there was any other reason he did not want to return to India, he said that this was the only problem and there were no other reasons.
Nonetheless, in its findings and reasons the Tribunal considered whether either the Applicant’s claims or any other evidence before it raised any issue of a fear of persecution relating to troubles between Hindus and Muslims in the Applicant’s village. It had regard to his retraction of the claim in this regard and to the absence of any evidence to indicate that there was any risk of harm to the Applicant for such reasons. The Tribunal considered whether the Applicant would face harm from Hindus in India as a Muslim.
As submitted by the First Respondent, in circumstances where the underlying claim was not made out, it was not necessary for the Tribunal to go on to consider the issue of the availability of state protection (see Razai v Ministerfor Immigration and Citizenship [2012] FCA 394 at [19] – [36]). This ground is not made out.
Ground three in the application is as follows:
The Tribunal’s decision was unjust and made without taking into account the full gravity of applicant’s circumstances and consequences of claims. The Tribunal did not consider the applicant who had been under immense and intimidating pressure from Hindu community and BJP.
The first part of this claim was repeated in the affidavit accompanying the application. Insofar as this ground and what the Applicant said in oral submissions may be seen as seeking merits review, merits review is not available in this Court. To the extent that this is a claim that the Tribunal failed to consider his claims regarding the Hindu community and the BJP, that is contrary to the Tribunal’s express consideration of each of these issues in its findings and reasons. The general contention that the Tribunal’s decision was unjust does not establish jurisdictional error on the part of the Tribunal (see SZBEL at [25]). This ground is not made out.
In oral submissions the Applicant raised for the first time some quite different issues. Insofar as he took issue with what occurred at the Tribunal hearing, the only evidence before the Court of what occurred in the hearing is the Tribunal’s account in its reasons for decision. The Applicant had the opportunity to file a transcript of the Tribunal hearing. He did not do so. Initially he appeared to contend that he was not prepared on the day of the Tribunal hearing and that the hearing proceeded although he was not ready. If the Applicant was indicating that he would have liked a delay or an adjournment of the Tribunal hearing, there is nothing in the evidence before the Court to suggest that any such issue was raised with the Tribunal. The evidence before the Court is that the Applicant was invited by letter of 5 December 2012 to a hearing on 17 January 2013. There is no suggestion that this did not give the Applicant the necessary notice of the hearing as required under the Act.
There is no indication that the Applicant took issue with the suggested date for the Tribunal hearing. The Applicant attended the Tribunal hearing. He had the assistance of an interpreter. There is nothing in the Tribunal account of the Tribunal hearing to support any contention that the Applicant was not in a position to participate effectively in the hearing. He says today that he was nervous and unprepared. While his nervousness may be understandable, it is clear on the material before the Court and having regard to the time his protection visa application had been on foot that the Applicant had ample time throughout the process and after he received the hearing invitation to prepare for the Tribunal hearing.
There is nothing in the material before the Court to raise any concerns about the manner in which the Tribunal conducted the hearing. It is well-established that it is appropriate for the Tribunal to raise issues of concern with the Applicant. There is nothing to suggest that the Applicant was not able to participate meaningfully in the hearing. On the contrary, it is apparent from the Tribunal’s account of the hearing that it gave the Applicant an opportunity (which he took) to give evidence and present arguments relating to the issues arising in relation to the delegate’s decision. The Tribunal properly raised issues of concern with the Applicant and explained the relevance of its concerns about his credibility.
The Applicant suggested for the first time today that the interpreter at the Tribunal hearing made an error in the interpretation of the word “glass”. There is no evidentiary basis for such a contention. Insofar as the Applicant claimed that he did not understand the Tribunal hearing and was not able to grasp what was happening, such contention is not consistent with the Tribunal account of the Applicant’s evidence at the hearing.
The fact that aspects of the Applicant’s evidence were inconsistent or implausible or not accepted by the Tribunal does not establish that he could not participate in a meaningful sense in the hearing.
In the course of his oral submissions, the Applicant appeared to take issue with the Tribunal’s approach to complementary protection. If this is simply a claim that he was entitled to a visa on the basis of the complementary protection criterion, he seeks impermissible merits review. Beyond this, there is nothing in the material before the Court to establish that the Tribunal fell into jurisdictional error in the manner in which it considered complementary protection. The Tribunal referred to its findings relevant to the criterion for complementary protection. Having regard to the nature of those findings and the material before it, the Tribunal’s relatively brief summary of complementary protection and its conclusion in that respect are not indicative of jurisdictional error. In circumstances where the Tribunal had rejected the Applicant’s claims to fear harm on any of the bases contended for, no jurisdictional error is apparent in this respect.
Finally, on more than one occasion the Applicant reiterated that he sought a visa on humanitarian grounds. His concerns in that respect do not establish jurisdictional error. As I endeavoured to explain to him, the Court cannot take into account humanitarian concerns in the manner in which he suggested.
As no jurisdictional error has been established, the application must be dismissed.
RECORDED : NOT TRANSCRIBED
The Applicant has been unsuccessful. The Minister seeks costs in the sum of $4,500. The Applicant said that he had no means to pay and wanted a reduction in the amount of costs awarded. However the Applicant’s lack of funds is not a reason for departing from the normal principle that the unsuccessful applicant should meet the costs of the respondent. Nor am I satisfied that the amount of such costs should be reduced, although the Applicant’s lack of funds may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs.
The amount sought is considerably less than the amount provided for in the Federal Circuit Court Rules2001 (Cth). It is reasonable and appropriate in light of the nature of this and other similar matters.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 16 August 2013
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