SZTGS v Minister for Immigration
[2016] FCCA 2008
•12 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTGS v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2008 |
| Catchwords: MIGRATION – Application for review of decision of Refugee Review Tribunal (Tribunal) – whether Tribunal addressed applicant’s claims – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 424A, 424A(1), 424A(3), 424A(3)(b), 424A(3)(ba) |
| Cases cited: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 |
| Applicant: | SZTGS |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 108 of 2015 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 29 July 2016 |
| Delivered at: | Sydney |
| Delivered on: | 12 August 2016 |
REPRESENTATION
The applicant appeared in person assisted by an interpreter
| Solicitors for the Respondents: | Ms A Lucchese of Sparke Helmore |
ORDERS
The application is dismissed.
The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 108 of 2015
| SZTGS |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, a citizen of India and a Hindu, seeks judicial review of the decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).
The applicant arrived in Australia on 3 July 2012 as the holder of a business visa. On 26 July 2012 the applicant lodged an application for a Protection visa. A delegate of the Minister refused that application on 12 December 2012 and that decision was affirmed by the Tribunal (First Tribunal) on 16 August 2013. The applicant then sought judicial review by this Court, which affirmed the Tribunal’s decision. On 22 August 2014, however, the Federal Court remitted the applicant’s application for review to a differently constituted Tribunal (Tribunal) for reconsideration.
Claims for protection
In his application for protection the applicant claimed he feared his former girlfriend’s Muslim family and members of the Muslim community will kill him if he returns to India because of their opposition to his interfaith relationship with her.[1]
[1] CB18
According to his application, the applicant met a Muslim woman in August 2011 at the phone repair shop he owned, and they began a relationship. The applicant’s girlfriend’s family found out about their relationship after the applicant’s girlfriend fell pregnant.[2] Outraged, the girlfriend’s brothers visited the applicant’s phone shop looking for him, and hired goons to find and kill the applicant when they were unsuccessful. The applicant claimed the reason he was wanted by his girlfriend’s family was because Muslim people are very protective about their religion, and are not permitted to bring Hindus into their families.
[2] The applicant claimed in his application for protection that his girlfriend was 6 months pregnant at the time.
Before leaving for Australia, the applicant was “nearly” “killed” when he was attacked at a bus station.[3] The attackers tried to stab the applicant’s chest, but he ducked, and the knife only touched the left side of his face. The applicant ran away to safety. The applicant also claimed his relationship with his girlfriend became an issue in his area, triggering riots between Hindu and Muslims. The Muslim rioters became “very aggressive and dangerous”.[4] The applicant was forced to hide in different places before coming to Australia. The local Muslim Imam also declared the applicant should be punished by death because of his relationship and his girlfriend’s pregnancy.
[3] CB19
[4] CB19
The applicant also claimed he is unable to seek protection from the Indian police because they have limited resources to protect individuals, and their involvement would be futile.
Before the Tribunal
Before the Tribunal the applicant elaborated on the claims stated in his application. He said he had last seen his girlfriend “a month and a half” or “one or two months” before coming to Australia in July 2012.[5] This meeting had taken place at the applicant’s phone repair shop, where their meetings usually occurred, and there was “nothing special” about that instance. It was the last time he saw his girlfriend as her parents stopped their contact because “they were annoyed and after him”.[6]
[5] CB90, [9d]
[6] CB90, [9d]
The applicant said he did not know his girlfriend was pregnant, even at their last meeting, as she had not told him. The applicant first heard about the pregnancy from “other people” who told the applicant his girlfriend’s parents were saying she was pregnant.[7] After hearing the rumour around May 2012, the applicant’s girlfriend’s brother came to the applicant’s shop, together with a group of people, and threatened the applicant. Later, the same group attacked the applicant at the bus station, when he was walking near the stop or having a cup of tea after getting off the bus.[8] After that incident, the applicant did not return to his village. He moved around various places because he knew his girlfriend’s family were looking for him.[9]
[7] CB90-91, [9f]
[8] CB90-91, [9f]
[9] CB91, [9h]
The applicant also claimed that he had last been in contact with his family in July 2012 when he telephoned them to tell them that he was leaving India. The applicant has not had any contact with his family since, as they did not agree to his marrying his girlfriend, and he is unsure of what has happened to his phone shop.[10] The applicant also had no contact with his former girlfriend after he arrived in Australia, and he does not know what happened to her after their last meeting.
[10] CB90, [9c]
The applicant gave evidence about how he arranged to leave India. The applicant said that, after telling a friend who had been to Australia everything that had happened, his friend advised the applicant to leave India “arranging everything” including the applicant’s business visa. The applicant did not pay his friend any money for the arrangement, and claimed he had “no idea” what was involved, other than that once he got to Australia he was to apply for protection.[11]
[11] CB91, [9l]
Tribunal’s decision
The Tribunal found the applicant not to be a reliable or truthful witness, and found the applicant had fabricated his claims to achieve a favourable migration outcome.[12] The Tribunal relied on a number of matters.
[12] CB94, [19]
First, the applicant’s evidence about the threats from his girlfriend’s family was vague and inconsistent.[13] The Tribunal noted that when asked about his last meeting with his girlfriend, when he found out she was pregnant, and what he had been doing before being attacked at the bus station, the applicant’s responses were vague.[14] The Tribunal also noted the applicant provided two different accounts of the attack that occurred at the bus station. In his application for protection, the applicant claimed he had run away after the attack, in which he avoided being stabbed by ducking so that the knife touched the left side of his face, while before the Tribunal he claimed he reported the incident to the police, went to the hospital to have the wound dressed, then went home and informed his parents that he wanted to marry his girlfriend. Collectively, the Tribunal considered these inconsistencies raised doubts about the applicant’s truthfulness.
[13] CB92, [13]
[14] CB92, [13]
Second, when asked if the applicant feared any other threats to him as a result of his relationship with his Muslim girlfriend, the applicant did not mention the Hindu-Muslim riot which, in his application for a Protection visa, the applicant claimed was triggered by his relationship. Nor did he mention the local Imam’s declaration of a death punishment for him. The Tribunal found it implausible that this failure was an oversight by the applicant, given the significance of the claims, and concluded the applicant fabricated these claims.
Third, the Tribunal found it implausible that the applicant would be informed of his girlfriend’s pregnancy through rumours, despite being very close to her and, as the applicant claimed, seeing each other “almost every day”, and that he did not make any attempt to contact her after he was threatened by her family, despite claiming that he had told his parents that he wished to marry her.[15] The Tribunal did not accept the applicant’s explanation that if his girlfriend was not pregnant, her parents would not start such a rumour.
[15] CB93, [16]
Fourth, the Tribunal relied on inconsistencies between the information the applicant provided in support of his application for a business visa and the evidence he gave to the Tribunal. The Tribunal put to the applicant, and invited him to comment on the finding that a different residential address and occupation in India had been provided in each application, and that such a finding raises further doubts about the applicant’s truthfulness. In response, the applicant claimed that the information provided in his business visa application was “all false”, and that he did not pay attention to the contents of that application because his friend told him it was prepared for the purposes of getting to Australia.[16] The Tribunal did not accept the applicant’s explanation for the inconsistencies, and, when considered with the applicant’s failure to advise the department of this information, found it undermined the credibility of the applicant’s claims for protection.
[16] CB93, [17]
The Tribunal, therefore did not accept the applicant had ever had an interfaith relationship with a Muslim girl, as a consequence of which he was threatened with death by her family, their friends or hired goons, or attacked with a knife at a bus station; that the relationship triggered a Hindu Muslim riot; that the local Muslim mosque Imam declared the death punishment for the applicant; or that Muslims have vowed to take revenge on the applicant as a result.[17] The Tribunal, therefore, did not accept that if the applicant returns to India, his girlfriend’s family, or any other Muslim will kill the applicant as a result of his interfaith relationship. The Tribunal concluded the applicant was not a person in respect of whom Australia had protection obligations pursuant to s.36(2)(a) or s.36(2)(aa) of the Migration Act 1958 (Cth) (Act).
[17] CB30, [19]
Grounds of application
The applicant’s application for review raised two grounds. The first is:
The Second Respondent committed jurisdictional error by failing to address applicant’s claim in the way it was made:
a. The applicant stated in his protection visa application that he was attacked by the Muslims goons.
b. The local Muslim mosque declared the death punishment because of his relationship with Muslim girl.
c. The applicant left the village and moved around before left the country.
d. The applicant reported the matter to the police but nothing happened.
The applicant, who is not legally represented, did not make any submissions in relation to this ground.
This ground cannot be made out. It is apparent from the Tribunal’s reasons for decision that the Tribunal identified the applicant’s claims, it questioned the applicant about his claims, and it understood and considered the applicant’s claims. The Tribunal did not accept the applicant’s claims; and it did not accept the applicant’s claims for reasons on which it was reasonably open to it to rely.
The second ground is:
The Refugee Review Tribunal denied the Applicant procedural fairness by reaching adverse conclusion that the inconsistencies between the applicant’s oral evidence and written statement, being conclusion that were not obviously open on the known material, without giving the applicant to make a written comments in respect of those matters.
This ground relates to the Tribunal’s reliance on inconsistencies between the evidence the applicant gave to the Tribunal, and the claims the applicant made in his application for a Protection visa. As I have already noted, the Tribunal relied on a number inconsistencies; and there is nothing to suggest the Tribunal put the inconsistencies to the applicant for his comment.
Whether the Tribunal was bound to notify the applicant that it intended to rely on a prior inconsistent statement for the purpose of assessing the applicant’s credibility turns on s.424A of the Act. Subsection 424A(1) of the Act requires the Tribunal, among other things, to give to the applicant particulars of information the Tribunal considered would be the reason, or part of the reason, for affirming the decision that is under review. That obligation is subject to s.424A(3) of the Act which relevantly provides:
This section does not apply to information:
. . . .
(b)that the applicant gave for the purpose of the application for review; or
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department . . .
The information contained in the application for a Protection visa falls within s.424A(3)(ba) of the Act; and the evidence the applicant gave to the Tribunal is information that falls within s.424A(3)(b). That means s.424A(1) of the Act did not apply to the information which the Tribunal considered to be inconsistent. That subsection did not require the Tribunal to give particulars of its appraisal that the applicant had given inconsistent statements. That is so because “information”, for the purpose of s.424A(1), “does not encompass the tribunal’s subjective appraisals, thought processes or determinations”.[18]
[18] SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18]
Ground 2 may also suggest the applicant claims he was not on notice that his credibility was in issue. If that is what is intended by ground 2, it cannot be made out. The delegate did not accept the applicant’s claims that he had a relationship with a Muslim girl, or that she became pregnant, or that her family is trying to kill the applicant, or that an Imam issued a “death punishment” against him.[19] The delegate’s not accepting the factual premises of the applicant’s claims, all of which depended on the acceptance of the applicant’s evidence, was the issue that was determinative of the applicant’s claims before the delegate. The Tribunal did not raise any additional issues. In those circumstances, the issue that was before the Tribunal was the issue that was determinative before the delegate, namely, whether the applicant’s evidence on which his claims was based should be accepted.
[19] CB50
Ground 2, therefore, also fails.
Other matters
In the affidavit which the applicant filed with his application, the applicant deposed the Tribunal had no jurisdiction to make its decision because “its “reasonable satisfaction” was not arrived at in accordance with the provisions of the” Act. This is no more than an unparticularised assertion and, for that reason, discloses no jurisdictional error.
The only submission the applicant made was that he fears harm if he returns to India. As I informed the applicant, it is not within the jurisdiction of this Court to determine whether the applicant has valid grounds for protection. That was a matter for the Tribunal.
Conclusion and disposition
I propose to dismiss the application. I also propose to order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent.
I certify that the preceding twenty-eight twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 12 August 2016
1
3