SZTVK v Minister for Immigration

[2015] FCCA 424

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTVK v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 424

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal (Tribunal) – whether any of the grounds raised by the application disclose jurisdictional error – no jurisdictional error.

Applicant: SZTVK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 237 of 2014

Judgment of: Judge Manousaridis

Hearing date: 14 August 2014

Delivered at: Sydney

Delivered on: 27 February 2015

REPRESENTATION

Applicant appeared by video link from Darwin and assisted by an interpreter.

Solicitors for the Respondents: Mr M Wiese of Clayton Utz

ORDERS

1. The application is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 237 of 2014

SZTVK

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a national of India, seeks judicial review of a decision made by the second respondent (Tribunal) which affirmed a decision of a delegate of the first respondent (Minister) not to grant the applicant a protection visa.

Claims for protection

1. The alleged facts on which the applicant relied for protection are as follows.[1]

   [1] CB54-59

2. The applicant is an ethnic Punjabi, and follows the Sikh religion. His paternal grandfather was killed in 1984 in riots that occurred after Prime Minister Gandhi was assassinated by her two Sikh bodyguards. The applicant’s father, like other Sikhs, filed a complaint with the Delhi police, but he was forced to withdraw the complaint as a result of threats he received from members or supporters of the Congress Party. In late 1984 or early 1985, the applicant’s father decided to flee from Delhi to Punjab because there was violence directed towards the Sikh community, and because he feared adverse repercussions from his having filed the complaint with the Delhi police.

3. In about 1999 members of the Bharatiya Janata Party (BJP) approached the applicant’s father and urged him to join them in reinstating complaints that had been made against the Congress Party in 1984, including the one made by the applicant’s father. The applicant’s father refused. The persons then threatened the applicant’s father.

4. In about January 2000 the applicant’s father and mother were struck by a vehicle while they were riding a bicycle. The applicant’s mother died. The vehicle that struck the applicant’s parents did not have a visible number plate. It was believed that the accident was instigated by the Sikh men who had approached the applicant’s father. The applicant’s father reported the incident to the Banur police who, despite having stated they would investigate the incident, closed the case two months later without any conclusion.

5. In about early 2005, a commission was appointed to investigate the anti-Sikh violence of 1984. At around this time, the applicant and his brother began to receive threats from Sikh men affiliated with the BJP. On the first occasion, the Sikh men urged the applicant to convince his father to resume the complaint. On the second, third and fourth occasions, the Sikh men severely mistreated the applicant by taking money and a mobile phone from him, and beating him. In 2008 the applicant filed with the Banur police a complaint against the Sikh men. The police took no action.

6. In 2008 the applicant was hit by a vehicle while riding his motorcycle. Before he was hit, the applicant noticed the vehicle did not have a visible licence plate. After he was hit, the applicant saw two Sikh men come out of the vehicle, but they left after a wave of oncoming traffic approached the applicant and the two men. Following that incident, the applicant decided to flee India. He arrived in Australia in July 2009 holding a student dependent visa.

7. After he arrived in Australia, the applicant commenced composing a series of anti-government poetry which he posted on his Facebook page.

8. After his arrival in Australia the applicant’s father continued to receive threats from the Sikh men. Further, in April 2013, a court in Delhi acquitted a person of charges laid against him in relation to the 1984 anti-Sikh violence. The applicant fears that person and his supporters will seek revenge on persons who attempted to file complaints against him.

9. The applicant provided medical records,[2] a copy of a complaint the applicant’s father lodged with the Banur Police on 20 November 2012 alleging the applicant’s father had been assaulted on 19 November 2012,[3] a copy of a letter from the Banur Police dated 5 July 2013 advising that the applicant and his brother, through their father, “have asked for copies of the F R I’s of the attacks on them and the family from 1984 up till now”.[4] The letter stated that the police have been unable to produce the documents owing to flooding that occurred in July 2010.[5]

   [2] CB61-62

   [3] CB67-68

   [4] CB64-65; CB227, [11]

   [5] CB65; CB227-228, [11]

The Tribunal’s reasons

1. The Tribunal accepted the applicant’s grandfather was killed in the course of the anti-Sikh violence that erupted in India in 1984, that his father lodged a complaint against the Indian National Congress (INC), that the applicant’s father withdrew his complaint in response to threats he received from the INC and, as a result of those threats, the applicant and his family moved to Punjab.[6] The Tribunal, however, was not prepared to accept that since 1999 the applicant and members of his family have been threatened and seriously harmed by Sikh men associated with the BJP and Akali Dal.[7]

   [6] CB229, [23]

   [7] CB229, [23]. The applicant mentioned Akali Dal before the delegate. The delegate recorded: “The applicant was asked from whom he feared harm. He stated that the Congress Party and the Akali Dal. He added that as a Sikh, he supported the Akali Dal and that the Akali Dal wanted the case to be reopened so that the perpetrators of the anti-Sikh violence are served with justice.” (CB82)

2. The Tribunal relied on a number of reasons for not accepting this part of the applicant’s claims.

   a)First, the applicant did not claim in the statutory declaration he submitted with his application for a protection visa that his father – being the only person who could have resumed the complaint against the INC – had ever been approached or threatened by anyone after 1999.[8]

   b)Second, before the delegate, the applicant said that his father had only received threats by telephone, and after the interview with the delegate, the applicant provided the delegate with a copy of a complaint purportedly lodged by the applicant’s father with the Banur Police of an assault on 19 November 2012.[9] It was not explained to the Tribunal why the applicant’s father did not disclose this information to the applicant at an earlier point, and the failure to disclose this information before the applicant’s interview with the delegate cast doubt on the veracity of the applicant’s claim that his father had been assaulted.[10]

   c)Third, there was an absence of any persuasive evidence of or explanation for why the applicant’s father had not been attacked or approached between 1999 and 19 November 2012.[11]

   d)Fourth, the Tribunal was unable to find information in any of the sources it consulted that suggested that Akali Dal or Sikh men affiliated with BJP or anyone else have engaged in intimidating, threatening or pressuring victims or relatives of victims of anti-Sikh riots to lodge complaints or reopen complaints for political advantage.[12]

   e)Fifth, in May 2000 the National Democratic Alliance Government appointed the Nanavati Commission to inquire into the anti-Sikh riots of 1984 in Delhi. It was difficult to believe that any political party or group would put time, effort, and resources into pressuring the applicant’s family and others to lodge or resume cases when the Commission has investigated the matter through legitimate means, successfully implicating important INC figures.[13]

   f)Sixth, the applicant arrived in Australia in July 2009, but did not apply for a protection visa until May 2013. The Tribunal did not find the applicant’s explanation for his delay in applying for a protection visa to be satisfactory.[14]

   [8] CB230, [29]

   [9] CB230-231, [29]

   [10] CB231, [29]

   [11] CB231, [30]

   [12] CB232, [33]

   [13] CB233, [34]

   [14] CB233-234, [35]

3. For these reasons, the Tribunal did not find the applicant to be a credible and truthful witness. It did not find the applicant’s evidence in relation to his claims of harm at the hands of the BJP or its Sikh allies in Punjab to be credible.[15]

   [15] CB234, [36]

Grounds of review

1. The applicant, who is not legally represented, states seven grounds of review in his application. The first ground is:

   I have more evidence and enough information for a fair complementary protection review.

2. The applicant did not make any submission in relation to this ground. The ground does not disclose any known ground of jurisdictional error.

3. The second ground is:

   Trying to send me back home will result in jeopardising my life pushing me into life threatening situations being physically harmed, mentally tortured and emotionally unstabled [sic] for the rest of my life.

4. The only submission the applicant made in relation to this ground is that other family members, including the applicant’s aunts, are being attacked. This ground does not disclose any known ground of jurisdictional error.

5. The third ground is:

   The R.R.T deprived me of natural justice.

6. At the hearing the applicant made a number of submissions in relation to this ground. One is that the Tribunal did not translate all of the documents the applicant submitted to the Tribunal. Another is that the applicant was unable to obtain from the Indian police all documents in relation to his grandfather’s death and the attacks the applicant suffered.

7. As to the first submission, it appears there are a number of documents the applicant provided to the Tribunal which were in a language other than English, and which were not translated into English. The first is what the applicant’s representative described in a letter as the applicant’s “anti-government poetry” the applicant composed in Australia and which he posted on his Facebook page.[16] The second are documents the applicant’s legal representative described in another letter as screenshots of the applicant’s anti-government poetry posted on the applicant’s Facebook page.[17] These include a screenshot an anti-government poem posted on the applicant’s Facebook page with an English translation and a screenshot of a YouTube page with one of the applicant’s anti-government songs uploaded, the song lyrics and their English translation.

   [16] CB181-190

   [17] CB193-219

8. The Tribunal was under no duty to translate documents the applicant provided to it; and the applicant could not reasonably have believed that the Tribunal would translate documents the applicant would submit to the Tribunal. In its letter to the applicant’s legal representative inviting the applicant to attend at a hearing before the Tribunal, the Tribunal stated:[18]

   Any documents or written arguments sent to the Tribunal should be in English or be translated by a NAATI accredited translator.

   [18] CB139

9. As to the second submission the applicant made, the applicant’s being unable to put before the Tribunal the information he had requested the Indian police to search for and provide did not result in the applicant not being accorded natural justice. It was for the applicant to present before the Tribunal material the applicant considered relevant to his case.

10. The fourth ground stated in the application is:

    Lots of threats have been sent as to my significant harm to my vulnerability which are never to be settled for the rest of my life.

11. The applicant made a number of statements in relation to this ground. All, however, were to the same effect: that he would suffer harm if he returns to India. The fourth ground does not raise any recognisable ground of jurisdictional error.

12. The fifth and sixth grounds are:

    The situation had I had to go back home, would be very critical and life threatening to myself; also I will be tortured for the rest of my life.

    The decision made by the member in R.R.T. regarding my case is wrong.

13. The applicant made no submissions in support of these grounds. They disclose no recognised grounds of jurisdictional error.

14. The seventh ground of review is:

    The secondary [sic] respondent made an error of law by not considering evidences which were significant and critical to the decision under review.

15. At the hearing I asked the applicant to identify the evidence he claimed the Tribunal did not consider. As I understood the applicant, the evidence he claims the Tribunal did not consider included the documents to which I refer in paragraph 20 of these reasons. As I have already concluded in relation to those documents, the Tribunal was under no obligation to have the documents translated. That was the applicant’s responsibility.

16. In addition, however, the applicant referred to a report which purports to describe an attack on his father. That appears to be the complaint by the father of an attack on him to which I have referred in paragraph 10 of these reasons. As I note in paragraph 12(b) of these reasons, the Tribunal referred to and considered the information contained in that document.[19]

    [19] CB230, [29]

17. Ground 7, therefore, is not made out.

Conclusion and disposition

1. None of the grounds on which the applicant relies disclose any jurisdictional error by the Tribunal.

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

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 27 February 2015