SZSUN v Minister for Immigration

[2017] FCCA 2296

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSUN & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2296

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal – no matter of principle.

Legislation:

Migration Act 1958, ss.36, 438, 474

Tribunals Amalgamation Act 2015, item 15AG of sch.9

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
AVO15 v Minister for Immigration and Border Protection [2017] FCA 566

First Applicant:	SZSUN
Second Applicant	SZSUO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3487 of 2014

Judgment of: Judge Cameron

Hearing date: 1 September 2017

Date of Last Submission: 1 September 2017

Delivered at: Sydney

Delivered on: 1 September 2017

REPRESENTATION

The First Applicant appeared in person

Counsel for the First Respondent: Mr T. Reilly

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicants pay the first respondent’s costs fixed in the amount of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3487 of 2014

SZSUN

First Applicant

SZSUO

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicants are husband and wife who are citizens of India. On 28 November 2012, the applicants were refused entry into Australia on their subclass 456 visas and were detained. On 11 December 2012 they lodged an application for a protection visa with the Department of Immigration and Border Protection, alleging that they feared persecution in India because of the threat of harm by a fellow resident of the first applicant’s village. On 22 January 2013 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. They were unsuccessful before the Tribunal and applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.

2. The Tribunal decision the subject of these proceedings is the second such decision relating to the applicants.  A previous Tribunal decision was quashed by order of this Court on 26 May 2014. The matter was remitted to the Tribunal for reconsideration.

3. In these judicial review proceedings the Court cannot rehear the applicants’ application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

4. For the reasons which follow, the application will be dismissed.

Background facts

1. As previously noted, the applicants are Indian nationals who form a family unit. The facts alleged in support of the applicants’ claim for a protection visa were summarised by the Minister in his written submissions as follows:

   … the [first] applicant claimed to fear harm from a Muslim “terrorist” [hereafter referred to as “X”] after finding a cache of weapons belonging to him in Jammu and Kashmir in early 2010. He claimed [X] assaulted and threatened to kill him. The applicant reported the threats to police … and [X] was later imprisoned.

   About three or four months later, [X’s sons] threatened and injured the applicant and in May or June 2010 the applicant decided to leave his village because of the threats. The applicant moved to Delhi for several months but often returned to his village, including for his wedding and when his wife was pregnant.

2. Further claims made by the applicants before the Department were summarised by the Tribunal in its decision as follows:

   He [the first applicant] fears that if he returns, [X]’s sons will mistreat him and harm him because he reported their father to the police and they blame him for their father’s arrest and threatened to kill the [first] applicant if he did not leave the area … He cannot obtain the protection of the authorities in his country because he is Sikh; many of his relatives have been killed in the past because of this reason and the authorities cannot protect him from the Muslims and will not be able to protect him against [X]’s family.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”), or s.36(2)(aa) of the Act. The Tribunal’s findings and reasons were summarised by the Minister in his written submissions in the following terms which I also adopt:

   9. The Tribunal found that the applicants were not “credible, reliable or truthful witnesses”. The Tribunal found the [first] applicant was not a “credible, reliable or truthful witness” having regard to his “changing, evasive and inconsistent evidence”. In reaching this finding, the Tribunal had regard to the following:

   9.1The applicant’s inconsistent evidence about where he discovered the weapons and their connection to [X].

   9.2The applicant’s “changing evidence” to the delegate and the Tribunal about how long it took him to leave his village and go to Delhi, … how long he stayed in Delhi before returning to his village, the frequency of his return and his inconsistent and confused evidence about his return to his village for the birth of his child.

   9.3The second applicant’s evidence provided to the Department when she was detained upon her arrival in Australia. In particular, the second applicant told the Department that the applicants “were not able to look after the children in India”, so they came to Australia “to work hard for a good future”. The Tribunal considered this evidence could have indicated the “real intention of both applicants when coming to Australia when coming to Australia”.

   9.4The Tribunal was concerned about why the applicant’s left their child in India if [X] would also target members of the applicant’s family. The Tribunal did not find the second applicant’s explanation for this, [that she was not aware of the threat against her husband at the time of departure], this to be persuasive.

   9.5The Tribunal found that the applicant’s evidence about when he decided to make plans to leave India was “inconsistent”. The Tribunal also considered the applicants’ delay in leaving India as suggesting that they did not have a “genuine fear or harm or concern for safety”.

   10.The Tribunal considered issues which may have affected applicant’s ability to provide evidence including “nervousness”, “lack of familiarity with the immigration process”, the applicant’s limited education”, the use of an interpreter, the applicant’s experience in immigration detention [and] the second applicant’s pregnancy… However, the Tribunal was not satisfied that these matters explained the difficulties with the applicant’s evidence.

2. The Tribunal also considered the first applicant’s claim that he had recently been diagnosed with a medical condition that caused him to forget matters and dates when responding to questions posed by the Tribunal. The Tribunal did not accept on the evidence before it that the first applicant had a condition which adversely affected his ability to give evidence and present arguments.

3. On the basis of its adverse credibility findings, the Tribunal did not accept any of the first applicant’s substantive claims for protection. The Tribunal was not satisfied that there was “any reason to consider that the applicant faces a real chance of serious harm in India for a Convention reason in the reasonably foreseeable future”.

4. In relation to the second applicant, the Tribunal noted that she had not made any claims in her visa application form to suggest that she had suffered any harm in India.  It noted that when it asked her whether she did fear such harm, she initially said no and it was only later when she mentioned being met by a member of the first applicant’s family unit that she suggested that she might be in danger upon return.               

5. The Tribunal had significant concerns regarding the second applicant’s credibility.  It specifically referred in that connection to her evidence, referred to already in para.9.3 of the quotation of the Minister’s written submissions and also in connection with the applicants’ reasons for their delay in leaving India.  It concluded that the second applicant was not a witness of truth.  It continued:

   68.…The Tribunal has also considered that the wife may have been nervous at appearing before the Tribunal, and that the applicant has given some corroborative evidence with the wife, however the Tribunal does not consider that these matters are sufficient to overcome the difficulties with the wife’s evidence. The Tribunal has also taken into account the pre-hearing submissions, namely that the wife has experienced time in detention, while pregnant, however the Tribunal does not accept that this can explain the difficulties with her evidence.

   69.Having regard to the problems with the wife’s evidence as set out above, the Tribunal does not accept the wife’s assertion that she is in danger because she is a member of the applicant’s family unit. Although the wife claimed to be a Sikh in her application form, she did not claim to fear harm on the basis of being a Sikh. The Tribunal does not accept that there is any reason  for the wife to fear harm in India.

Proceedings in this Court

1. In the application commencing these proceedings the applicants alleged:

   Ground 1

   The Tribunal made a procedural error by not taking into account information relevant to the applicant’s particular circumstances

   Particulars

   The First Applicant states that he faces a real threat from a person named [X] and his family. This is because the applicant and his friend discovered a cache of weapons believed to be [X]’s. The applicant states that on his report to the police of the discovery, [X] was arrested. After a few months the sons of [X] beat him profusely threatening to kill him and asked him to leave.

   The applicant states that the Tribunal rejected the above information as unfounded, inconsistent and not credible not allowing the applicant’s case to be validated.

   Ground 2

   Failure to understand or to take into account the Applicant’s claims that their lives were at risk and continue to be risky manifest ignorance and lack of knowledge of the realities of life in India.

   Particulars

   The Applicants states that it is naïve to believe that their lives will be at no risk if they return to India because the Tribunal assumes that the Applicants face no such threat on the basis that the Applicant’s story is unsubstantiated.

   Ground 3

   The Tribunal’s conclusion that the Firs [sic] Applicant did not have a well-founded fear of persecution in India was illogical or irrational, manifested a misunderstanding or misconstruction of the Convention test or arose out of a failure to take relevant information into account.

   Particulars

   The Tribunal found that there is not a real chance that the First Applicant will suffer serious harm in India on the basis that his evidence is unsubstantiated, not credible and inconsistent and that the applicants were untruthful witnesses. The First Applicant requests the Honourable Court to hear his case in full and states that he is prepared to give evidence to the best of his ability.

   Ground 4

   The Applicants were not afforded natural justice.

   Particulars

   The Applicants believes that they were not afforded a fair hearing. The Tribunal reaffirmed its earlier decision. In doing so, it did not give consideration to the applicant’s evidence, and instead, arrived at the decision with a preconceived conclusion that the matters claimed by the first applicant did not arise.

2. At the hearing of this application, the first applicant, appearing for himself as well as for his wife, stated that, at its hearing, when posing questions, the Tribunal persisted in asking questions before he had had an opportunity to complete his replies.  However, in answer to a question from the Court, the first applicant stated that he had not been prevented from telling the Tribunal what he wanted it to know. 

Grounds 1 and 2

1. The particularisation of the first and the second grounds of the application make it clear that these allegations are no more than an expression of the applicants’ disagreement with certain of the Tribunal’s findings of fact.  As noted earlier, the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error.  That is to say, even if the Court might not have reached the same factual conclusions as the Tribunal, as long as those findings were open to the Tribunal, no basis to set aside the Tribunal’s decision is made out.  Accordingly, no legal error is identified by the first and the second grounds of the application.

Ground 3

1. The Tribunal concluded that the applicants’ accounts were marked by inconsistencies and changeability.  It was logical for the Tribunal to be troubled by those features of the applicants’ presentation and, given that the number of inconsistencies and alterations to the applicants’ accounts, to be unpersuaded that a truthful account had been given to it.  That is to say, it was neither illogical nor irrational for the Tribunal to reach adverse credibility findings in relation to the applicants and the fact that it did not believe them cannot be said to amount to a misunderstanding of the Convention as the third ground of the application appears to imply.

Ground 4

1. Two matters are raised by the fourth ground of the application, the first being a denial of natural justice and, arising out of the particulars of the allegation, an assertion that the Tribunal was biased.  Dealing with the second matter first, the applicants allege bias in the form of pre-judgment in that they say that the Tribunal took no account of their arguments following the remittal of the matter for rehearing and it simply adhered to its original finding. 

2. The Tribunal’s first decision record, which was the subject of the consent order returning the matter to the Tribunal for rehearing, is not before the Court.  However, the reasons of the second decision, which are before the Court for review, demonstrate detailed and thoughtful consideration of the applicant’s allegations and evidence.  Specifically, they do not indicate that the Tribunal simply repeated its earlier findings. In fact, the Tribunal’s reasons make it quite clear that its assessment of the applicants’ claims was principally based on their evidence at its hearing on 10 October 2014. 

3. Allegations of bias must be firmly and distinctly made and clearly proven. This aspect of the fourth ground might be liable to be struck out because the nature of the bias is not firmly and distinctly alleged.  It certainly has not been clearly proven. 

4. Returning to the first matter raised in the fourth ground of the application, based on the first applicant’s address to the Court I infer that the denial of natural justice to which the application refers concerns the manner in which he said the Tribunal is said to have conducted itself and, in particular, spoke over the first applicant at the end of his answers.  That may well be so, but the issue is not whether the Tribunal spoke over the first applicant at any particular time but whether the first applicant had been denied an opportunity to put his case to the Tribunal.  As noted earlier, in answer to a question from the Court, the first applicant indicated that he had not been prevented from doing so.  Moreover, notwithstanding an earlier order of the Court that any transcripts of the Tribunal hearing be annexed to an affidavit and filed, no transcript of the Tribunal hearing has been filed, nor was one tendered at the hearing of this application. Consequently there is no basis to conclude that the Tribunal’s conduct of its hearing in any way prevented the applicants from putting their case to it. 

5. Finally, in his discharge of his duties as a model litigant, the Minister has also raised the possibility that a denial of procedural fairness might have arisen out of a s.438 certificate having been provided by the Minister’s Department to the Tribunal. A copy of the certificate was annexed to the affidavit of the Minister’s solicitor, Mr Keevers, affirmed 23 August 2017. Exhibited to Mr Keevers’s affidavit were the documents, now exhibit B which were no more than internal working documents and communications involving the Minister’s department and his solicitors, none of which had any material bearing on the Tribunal’s review.

6. In many ways, the circumstances reflect those which were considered by Barker J in AVO15 v Minister for Immigration and Border Protection [2017] FCA 566 . As his Honour said at [87]:

   Departmental working documents could have been of no or only passing contextual relevance to the application. 

   None of the documents forming exhibit B could, as Barker J said at [89]: 

   … have been of any relevance to the decision-making of the Tribunal. 

   In those circumstances, the s.438 certificate does not provide a basis upon which the Court ought to order that the Tribunal’s decision is set aside.

Conclusion

1. For these reasons, jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed. 

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 27 September 2017