SZTIC v Minister for Immigration

[2014] FCCA 2110

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTIC v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2110

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – no matter of principle raised.

Legislation:

Migration Act 1958, ss.36, 424A, 474

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: SZTIC

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2279 of 2013

Judgment of: Judge Cameron

Hearing date: 21 August 2014

Date of Last Submission: 21 August 2014

Delivered at: Sydney

Delivered on: 21 August 2014

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application be dismissed.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2279 of 2013

SZTIC

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of India who arrived in Australia on 29 October 2012.  On 6 December 2012 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that he feared persecution in India because of his political opinion.  On 4 April 2013 the applicant’s application was refused by a delegate of the first respondent (“Minister”).  The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court cannot rehear the applicant’s 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 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

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

Background facts

1. The applicant made his claims for protection in his protection visa application, at an interview with the delegate on 27 March 2013 and at a hearing before the Tribunal on 23 July 2013. In addition, following its hearing the Tribunal sent to the applicant a letter pursuant to s.424A of the Act inviting him to comment on or respond to certain information and in his response dated 26 August 2013 the applicant clarified and provided further details about his claims.

2. As briefly summarised by the Tribunal in its decision, the applicant claimed to have been a supporter of the Communist Party of India (Marxist) (“CPI(M)”) and to have worked as one of its leaders from July 1996 until October 2012.  He claimed that as a result he had been attacked and persecuted by the Trinamool Congress Party.  In support of his application the applicant provided a letter purportedly from the secretary of his home district committee of the CPI(M) and untranslated newspaper reports which he said were about general political violence in his home state of West Bengal but not about him personally.

3. The details of the applicant’s claims were not set out separately in the Tribunal’s decision record but, where considered relevant by the Tribunal, were incorporated into its reasoning.

The Tribunal’s decision and reasons

1. The Tribunal 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 decision was based on the following findings and reasons:

   a)the applicant claimed that on one occasion he had been attacked and beaten with sticks at his family home by members of the Trinamool Congress Party but the Tribunal found that he had not been attacked or threatened as he alleged.  This was because it found that the applicant’s evidence about the claimed attack was unpersuasive and inconsistent, in that:

   i)the applicant claimed in his application form that he had been attacked in July 2012 but at his departmental interview and Tribunal hearing he repeatedly claimed that he had been attacked on 15 June 2012. The Tribunal noted that when it put that inconsistency to the applicant at its hearing, he claimed that he had made a mistake and said that the attack had occurred in July, before saying he could not remember the month, only that it was on the fifteenth. The applicant later claimed in his response to the Tribunal’s s.424A letter that he could not recall the date of the attack but he had spoken to his family members who had confirmed that it was on 15 June 2012;

   ii)the applicant claimed at the Tribunal hearing that the attack had occurred at 6pm, when only he and his mother were home and the other members of his family were at work, when he had earlier said that his brother worked from home and his sister-in-law did not work;

   iii)at his interview with the delegate the applicant claimed that of the eight to fifteen people who had come to his home, only four to five had beaten him but at the Tribunal hearing he said that ten to fifteen people had come and he was beaten by all of them. When the Tribunal put that inconsistency to him at its hearing the applicant claimed that he could have made an error but that he had been attacked by a lot of people and in his response to its s.424A letter he said that he could not recall the number of his attackers and his family had told him different numbers. While the Tribunal accepted that a person who had been beaten might not recall the exact number of his attackers, it expected the applicant to have been consistent in his evidence about how many people he thought might have been involved and did not accept that his confusion or his family’s evidence explained the significant inconsistency in his evidence;

   iv)at the Tribunal hearing the applicant initially claimed that the ten to fifteen people had attacked him for an hour and that for ten minutes of that time they had all beaten him with sticks and closed fists which resulted in a bruise on his face before saying, when questioned, that the beating also resulted in a scar or mark on his back and body.  The Tribunal found that the types of injuries the applicant claimed to have suffered were not consistent with the beating he claimed to have received; and

   v)the applicant initially said that his mother had not called the police because they would not have responded before saying that she had not known the telephone number for the police or how to use the telephone.  The applicant then said that his attackers had arrived and left suddenly and had only been there for ten to fifteen minutes, which was inconsistent with his evidence that they had been there for an hour.  The Tribunal noted that when that inconsistency was pointed out to the applicant he said because he had been scared he could not remember, but he had been beaten for ten to fifteen minutes.  In those circumstances, the Tribunal found that the applicant had been fabricating and changing his evidence in response to questions put to him;

   b)the Tribunal found that the applicant gave inconsistent and unpersuasive evidence about when he became involved with the CPI(M), which led it to doubt that he had been involved with the party as claimed. It noted that in one part of his application form the applicant had claimed that he had been involved with the CPI(M) since 1997 and in another that he had been a leader since July 1996; at his departmental interview he initially claimed that he had been involved since 1997 before later saying he had liked the party from 1996 and only became an active member in 1997; at its hearing he said that he had been involved with the party since June 1996 and had had the same role within the party since then; and in his response to the s.424A letter he repeated his earlier evidence that he had liked the party from 1996 and only became an active member in 1997. The Tribunal further noted that in his application form the applicant had claimed that he had been working for the CPI(M) as a leader and his monthly salary had not been fixed but at its hearing he said he did social work for the party and was never paid;

   c)the applicant claimed that he had gone into hiding five days after the attack but the Tribunal found that claim unpersuasive.  It noted that the applicant initially claimed that he had waited for five days before going into hiding because of his injuries but when it questioned him about his claim that his main injury had been bruising to his face he claimed that he had not taken the threats against him seriously until members of the Trinamool Congress Party threatened him again two or three days after the attack.  The Tribunal did not find it credible that the applicant would have failed to treat being threatened and beaten by ten to fifteen people who had broken into his house as serious;

   d)the Tribunal noted that the applicant had claimed at its hearing that his party office had been attacked a few months earlier and that he could submit photographs which he had had in his possession for some time.  It noted that the applicant initially claimed that he had been too busy to print the photographs before saying that he had forgotten about them.  The Tribunal found those explanations unpersuasive and was not satisfied that the applicant had any such photographs, particularly as he had not provided them after its hearing when he had had time to do so;

   e)the Tribunal found that the applicant had only been able to display superficial knowledge of the CPI(M).  It expected that as a person who claimed to have held a leadership position within the party over many years, he would have been able to demonstrate a more detailed knowledge of the CPI(M)’s candidates, publications and policies.  The Tribunal found that the knowledge displayed by the applicant suggested that while he might have been a supporter of the party and might have voted for it in elections, he had not been closely involved with it for many years and had not played a prominent or significant role.  It was not satisfied he had been attacked or threatened as a result of his political views or activities;

   f)the Tribunal noted that the letter of support the applicant had provided was handwritten, undated, had no contact details, had no signature, did not refer to the applicant being attacked and that the author’s name was not legible.  The Tribunal was therefore not satisfied that it was an official letter and found that it did not overcome its concerns about the applicant’s claims and evidence; and

   g)the Tribunal noted that it had looked at reports about the CPI(M)’s situation in West Bengal.  It found that while there were reports of CPI(M) party offices being attacked and reports of the deaths of CPI(M) workers involved in protests, there were no reports which suggested the widespread targeting of CPI(M) supporters by members of the Trinamool Congress Party.  The Tribunal did not accept that the applicant had a political profile or was involved in political activities which would bring him to the adverse attention of members of the Trinamool Congress Party.  It therefore concluded that there was no real chance that he would be persecuted for his political views or activities or that he would suffer significant harm if returned to India.

Proceedings in this Court

1. In his amended application the applicant alleged:

   1.The applicant claims that in making decision, the Refugee Review Tribunal acted without jurisdiction or in excess of jurisdiction in that it failed to take into account relevant considerations and took into account irrelevant considerations.  During hearing he was denied natural justice procedural fairness.

   Particulars:

   At the time of hearing the Tribunal asked the evidence in relation to the number of people present at the time of attacks on him.  The Tribunal member raised the question why the applicant is not sure about the number of people attacked on him?

   The applicant was truthful witness when he said he does not remember how many people were attacking him because he was being attacked and afterwards his family members told him about the approximate number of people involved.

   This is commonsense approach, that a person who is attacked or in the distressful condition cannot recognise or remember the exact number of person involved.  In this case attacker was not one person but was a mob.  The applicant claims the Tribunal made a jurisdictional error when it acted not judicial way.  The applicant believes that the hearing was a part of judicial proceedings not as a police interview. (Para 14, Tribunal Decision)

   2.Applicant claims that the Tribunal made a jurisdictional error when it made decision on assumption and probability. The Tribunal’s finding of reasons is confused and test for persecution was not applied according to the rule of the Act.

   Particulars:

   Applicant claims that the Tribunal gave more emphasis on the test of applicant’s memomary [sic] rather than reality.  The applicant was confused during hearing and did not understand most of the questions related with the date of attack and names of leaders of different leftist political parties and groups in 24 Pargana, West Bengal.  The applicant said that he was a member of the CPI(M) and situation in 24 Paragana is critical.  If he is compelled to go back to his country his life will be in danger.

   3.The applicant claims that the Tribunal formed the above opinion based on the limited information about the possible harm to the applicant.

   Particulars:

   The Tribunal ignored all other independent information and came on the conclusion that the applicant and persons like him have no fear of persecution and harm.

   The applicant claims that the RRT has misconstrued the facts.

   The Tribunal erred by applying an unduly harsh approach and failed to consider the real issue.

   The Tribunal generalised the killing of CPI(M) workers and did not consider as one of the reason why he claimed to consider his case under the provisions of Complementary Protection Regulations.

Ground 1

1. The first allegation in the amended application was that the Tribunal failed to take relevant considerations into account and took irrelevant considerations into account.  The applicant did not identify what the supposed considerations were.  The particulars of the allegation did not throw any light on the allegation because they only served to invite the Court to reconsider the applicant’s factual claims which, for the reasons given earlier, it cannot do.  In the absence of an articulation of the considerations referred to in the first ground of the amended application, the allegation is not made out.

Ground 2

1. Five matters were raised by the second allegation in the amended application and its particulars.  These were:

   a)the Tribunal’s decision was based on an assumption;

   b)the Tribunal’s decision was based on probabilities;

   c)the Tribunal did not apply the Convention tests properly;

   d)the Tribunal’s hearing had been a memory test; and

   e)the applicant had been confused at the Tribunal hearing.

2. As the Minister observed in his written submissions, it is not clear what case the applicant was seeking to make by these allegations.  However, I make the following observations about them:

   a & b)the Tribunal’s decision was based on factual conclusions including findings on credit which were logically derived from the evidence and were not simple assumptions.  To the extent that the Tribunal considered probabilities, its conclusions were logical inferences reasonably drawn;

   c)the Tribunal attached to its decision a statement of relevant law concerning the Convention and complimentary protection criteria for the grant of a protection visa.  I infer that the Tribunal was aware of those tests.  However, it was not necessary in this case for the Tribunal to apply those tests as the applicant’s claim for protection was rejected because the Tribunal concluded that his factual claims lacked credibility;

   d)the characterisation of the Tribunal’s hearing as a memory test is not borne out by the only evidence of what happened at the hearing, the Tribunal’s decision record, whose accuracy the applicant did not challenge; and

   e)although the applicant alleged that he was confused at the Tribunal hearing, he did not identify why or in what way he was confused or how any such confusion affected the quality of the hearing he was accorded by the Tribunal.  In such circumstances, that allegation does not point to there having been any reviewable error on the Tribunal’s part.

Ground 3

1. The third ground of the application sought merits review which, for the reasons already given, the Court cannot give.  The particulars of the allegation did not take the issue further except to the extent that they made unspecific allegations that the Tribunal failed to consider all aspects of the applicant’s claims.  It is not apparent that any aspects of the applicant’s claims were not considered but, in any event, the Tribunal found that the applicant was not a witness of truth and concluded that he was not to be believed in the allegations he made concerning why he said he qualified for the grant of a protection visa.  The third ground of the application does not disclose a basis upon which the Tribunal’s decision should be set aside.

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated. 

2. Consequently, the application will be dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date: 11 September 2014