SZTII v Minister for Immigration

[2014] FCCA 1649

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTII v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1649

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal (Tribunal) – whether Tribunal considered applicants’ claims – no jurisdictional error – application dismissed.

Applicant: SZTII

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2314 of 2013

Judgment of: Judge Manousaridis

Hearing date: 19 March 2014

Delivered at: Sydney

Delivered on: 25 July 2014

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondents:

Ms Carr

DLA Piper

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2314 of 2013

SZTII

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. In this application for judicial review, the applicant claims the Tribunal made a number of jurisdictional errors in concluding that the applicant was not a credible witness, and for that reason, rejecting the applicant’s claim he had a well-founded fear of persecution.

The applicant’s claims for protection

1. Before a delegate of the first respondent (Minister) the applicant, who is a national of India, asserted the following facts in support of his claim that he had a well-founded fear of persecution:[1] the applicant lived in a house that neighboured houses in which Muslims lived and with whom the applicant was on friendly terms, providing occasional financial support to some of them; before 2008 the applicant provided to some of his Muslim neighbours a periodical named “Vachanotsavam” published by “Divine Retreat Centre”; when this came to the attention of the Muslim community, the applicant was manhandled and threatened by other members of the Muslim community, and was accused of intending to convert Muslims to Christianity; some Muslims continued secretly to visit the applicant to read the periodical; that, too, came to the notice of the Muslim community as a result of which, in May 2009, some members of that community came looking for the applicant at his house, and destroyed the applicant’s house when they discovered he was not there; they then looked for the applicant at the applicant’s parish church at Cheriyathura and, when they could not find the applicant there, they attempted to destroy the church; the police intervened resulting in the killing of six people; the applicant took shelter at a friend’s house in Cochin, but his family took shelter at another place; in August 2011, some Muslims became aware the applicant was living in Cochin and assaulted a friend of the applicant’s to obtain information of where the applicant could be found in Cochin; by 28 November 2011 the applicant had obtained a visa for entry into Australia, but he did not leave for Australia until 24 January 2012 because his mother died;  the applicant returned to India after staying in Sydney for one week because he was depressed at having left his wife and children in India; on the evening of 21 February 2012, when the applicant left his home to buy a birthday cake for his wife, the applicant was viciously attacked by two persons; and fearing for his life, the applicant left India for Australia on 25 February 2012..

   [1] CB46-48

2. The applicant supported his application for a protection visa with newspaper reports of a riot in Cheriyathura in which six people were reported killed.[2] The applicant asserted that the riot that took place at his parish church at Cheriyathura was the riot that was covered by the newspaper reports the applicant submitted in support of his application for a protection visa. The applicant also supported his application by submitting a “First Information Report”,[3] which purported to be in relation to a complaint regarding property damage, and photographs of a damaged house in which he claimed he lived in 2009.[4]

   [2] CB34-40

   [3] The document is at CB44-45. The Tribunal (at CB206 ([36]) referred to this document containing three pages of annexures. These annexures are at CB42-43 (“Properties Details”) and CB41 (“Annexure – Accused (Known/Unknown) Details”.

   [4] CB53-56

3. Before the Tribunal, the applicant provided submissions and documents that addressed adverse findings made by the delegate.[5] One of the adverse findings the applicant addressed was there was no evidence to prove the applicant resided at the Vallakadavu post office area. The applicant provided two bank account statements that specified the applicant’s address,[6] a “Property Tax Assessment Index Sheet” in the name of the applicant’s wife,[7] and an identity card of the applicant’s wife.[8]

   [5] CB182-183

   [6] CB166-167

   [7] CB168

   [8] CB62

The Tribunal’s reasons

1. The Tribunal did not find the applicant’s evidence about suffering past harm in India to be credible, and therefore did not find credible the applicant’s claim of fear of harm in the future if he returns to India. The Tribunal relied on a number of matters for not being so satisfied. First, the reports of the riot in Cheriyathura were not consistent with the applicant’s claim he was the cause of the riot. For example, they reported two riots in which the killings took place during the second riot. Second, the Tribunal gave little weight to the First Information report and annexures because they did not identify the complainant, or the address where the crime occurred, and were not consistent with the applicant’s account of the damage suffered to his house. Third, there was no information in the photograph or elsewhere that identified the address of the house, or when the photograph was taken. Fourth, because the Tribunal did not accept the applicant’s evidence that he did not cause the riots at Cheriyathura, it also did not accept the applicant’s evidence in general.

2. According to its reasons for decision,[9] the Tribunal questioned the applicant at the hearing at some length about whether he lived in the Cheriyathura area. The Tribunal accepted that the applicant lived in the Cheriyathura region in 2009 and that his wife had constructed a new house there. The Tribunal accepted that the construction of the new house in Cheriyathura was consistent with the applicant’s claims, but, for the reasons it had already given, the Tribunal did not accept the applicant’s claims about suffering harm in India.[10]

   [9] CB207, [41]

   [10] CB207, [41]

Grounds of review

1. The applicant has included four grounds of review in his application for review. The first ground is as follows:

   The Tribunal constructively failed to exercise its jurisdiction;

   Particulars:

   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 his claims.

2. If correct, the matters asserted in the ground and particulars would disclose jurisdictional error on the part of the Tribunal. The assertions, however, are not correct. The Tribunal did engage with the contents of the documents. It considered each of the documents on which the applicant relied in support of his application. It accepted as accurate the reports of the Cheriyathura riots but found that these reports were not consistent with the applicant’s account, and for that reason rejected the applicant’s account. And the Tribunal did not accept the other documents for the reasons it gave. It was reasonably open to the Tribunal not to accept the documents as supporting the applicant’s evidence.

3. Although the applicant, who was not legally represented, made submissions at the hearing (to which I will refer below), those submissions did not in terms address the grounds of review set out in the application. Accordingly, the applicant’s first ground of review fails.

4. The second ground of review is:

   The Tribunal had no jurisdiction to make the said decision because its reasonable satisfaction was not arrived in accordance with the provisions of the Migration Act.

5. From the reasons of the Tribunal, it is clear the Tribunal considered the applicant’s claims, but, for the reasons given by the Tribunal, it was not satisfied the applicant had a well-founded fear of persecution. It was reasonably open to the Tribunal to arrive at the conclusions which it did, and, for those reasons, to reject the application for review before it. Ground 2, therefore, also fails.

6. The third ground of review is:

   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 Muslims.

7. To the extent this ground complains the Tribunal did not consider the applicant’s claims, it is incorrect. The Tribunal did consider the applicant’s claims. In a sense, it is correct to say that the Tribunal did not consider the applicant’s being under immense and intimidating pressure from Muslims. But the Tribunal did not do so because it did not accept the applicant’s claims that he was under such pressure. It was open to the Tribunal to not accept the applicant’s claims in that regard. The third ground of review, therefore, also fails.

8. The fourth ground of review is:

   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.

9. This ground does not identify which aspects of the applicant’s claims the Tribunal found were implausible and which it was not obvious to the applicant would be in issue before the Tribunal. In any event, the applicant was on notice that the applicant’s claims would be in issue before the Tribunal. That is so because the delegate comprehensive rejected the applicant’s claims.[11] Ground four, therefore, fails.

   [11] CB126-127

Applicant’s submissions at the hearing

1. The applicant made a number of submissions at the hearing. First, as I understood him, the applicant gave an explanation of why his name did not appear on the “First Information Report”.[12] The explanation he gave was that he was not at the house at the time it was attacked.[13]

   [12] CB44-45

   [13] T7.20

2. It appears from the Tribunal’s reasons that the applicant did not give this explanation to the Tribunal:[14]

   The Tribunal gives little weight to the documents [contained in the “First Information Report”] because they do not identify the complainant, or the address where the crime occurred, and are not consistent with the applicant’s account of the damage suffered to the house, or with the photographs of the damaged house which he provided to the Tribunal. When the Tribunal put to the applicant the inconsistency between his account of the damage and the contents of the FIR, he gave no explanation”.

   [14] CB207, [36]

3. That the applicant now may have an explanation for why his name was not referred to in the “First Information Report” does not disclose any jurisdictional error on the part of the Tribunal.

4. The second submission the applicant made was that the documents he submitted to the Tribunal showed that he lived in the house that was attacked. The applicant submitted the Tribunal gave them little weight.[15]

   [15] T8.15-T9.20

5. That submission does not disclose jurisdictional error. The weight the Tribunal should have given to the documents was one for the Tribunal to determine. And although the Tribunal accepted on the basis of the documents that the applicant lived in the Cheriyathura area in 2009, it was reasonably open to the Tribunal to conclude, as it did, that that fact did not affect its conclusions about the credibility of the applicant’s account.

6. The third submission the applicant made related to paragraph 7 of the Minister’s written submissions. In that paragraph the Minister said that the applicant claimed that on 15 August 2011, the Muslims attempted to assault the applicant’s friend to ascertain where he was. The applicant submitted that the Tribunal made no such finding.[16]

   [16] T10.20

7. This submission discloses no jurisdictional error. It is correct that the Tribunal made no such finding. But the Minister did not submit that the Tribunal did make such finding. Paragraph 7 only recorded an element of the applicant’s claim. It correctly identified that claim; and it was a claim the Tribunal did not accept.[17]

   [17] CB207, [38]

Conclusion and disposition

1. The applicant has not made out any of the grounds of review, and none of the submissions he made at the hearing disclose jurisdictional error by the Tribunal.

2. I propose, therefore, to dismiss the application, and order that the applicant pay the Minister’s costs.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  25 July 2014