SZTXU v Minister for Immigration

[2015] FCCA 3019

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTXU v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3019

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal reached incorrect conclusions, breached s.424A of the Migration Act 1958 and failed to consider the applicant’s claims.

Legislation:

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

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

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

Applicant: SZTXU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 644 of 2014

Judgment of: Judge Cameron

Hearing date: 19 October 2015

Date of Last Submission: 19 October 2015

Delivered at: Sydney

Delivered on: 19 October 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms N. Blake of Clayton Utz

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,646.

3. The Administrative Appeals Tribunal replace the Refugee Review Tribunal as the second respondent in this proceeding.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 644 of 2014

SZTXU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of India who arrived in Australia on 10 January 2005 as the holder of a student visa. On 8 October 2012 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection (“Department”), alleging that he feared persecution in India because of his religious beliefs. On 8 February 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. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.

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. In its decision the Tribunal summarised the facts alleged in support of the applicant’s claim for a protection visa.  As summarised by the Tribunal, the applicant relevantly made the following claims:

   a)he is a Sikh from Punjab in India;

   b)as a result of his Sikh religion, he was assaulted, isolated and discriminated against on a daily basis while in high school;

   c)in September 2006 he returned to India to visit his sick grandfather.  In the second week of his visit, he left his parents’ house for the first time and on that occasion was assaulted by some former classmates.  After that incident he did not leave his parents’ house until he returned to Australia two weeks later;

   d)his former classmates had visited his parents and had made threats to kill him if he returned to India; and

   e)if he returned to India he would be abused and discriminated against.  The authorities would not protect him because he was a Sikh.

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 or s.36(2)(aa) of the Act. The Tribunal’s decision was based on its finding that the applicant was not a credible witness, which led it to reject all his claims of harm in India as a result of his religion. In reaching its finding that the applicant was not a credible witness:

   a)the Tribunal noted that the applicant claimed to have been persecuted in India because he was a member of a religious minority and to have been beaten on a daily basis in school because he was the only Sikh in his class.  The Tribunal referred to country information indicating that 60% of the population in the applicant’s home state of Punjab were Sikhs, that 57.5% of the population within the applicant’s specific home area were Sikhs and that Sikhs dominated the political parties in Punjab.  The Tribunal therefore found that the country information did not support the applicant’s claims and cast significant doubt on the truthfulness of those claims.  It found that if the applicant returned to India he would be a member of a religious majority;

   b)the Tribunal found the applicant’s evidence about his claimed assault in September 2006 inconsistent and unpersuasive.  It noted that:

   i)the applicant had failed to raise the claimed assault in his statement attached to his protection visa application;

   ii)at his departmental interview the applicant claimed to have been harassed or attacked on every day that he left his parents’ home, suggesting that he had been harassed and attacked on more than one occasion.  However, at the Tribunal hearing he claimed to have left his parents’ house on one occasion and to only have been assaulted on that one occasion;

   iii)the applicant initially claimed that his father had tried to give the police money to investigate his assault but then changed his evidence to say that his father had not given the police any money.  The applicant also claimed that his father had last visited the police when he, the applicant, was in year 10 at high school, but when later questioned about reporting his claimed 2006 assault he said that his father had visited the police but that nothing had happened.  The applicant finally claimed that his father had not visited the police but had just spoken about the incident to a police officer who had been passing by; and

   iv)the applicant initially claimed that as a result of his assault his left arm was bruised and his knee was dislocated.  When the Tribunal put to the applicant that the attack he had described was a very serious one involving twelve people with sticks beating him for five minutes or more and could be expected to have led to serious injuries, the applicant then claimed that his arm had also been dislocated and the tendons had been torn.  The Tribunal also noted that the applicant claimed to have visited a doctor who sent him to a person who gave him a home remedy.  It did not find the applicant’s explanation for the treatment he received to be persuasive;

   c)the Tribunal noted that the applicant had given vague and inconsistent evidence about why he was unable to move to another school if, as he claimed, he had been bullied for being the only Sikh in his class.  Based on country information indicating that Sikhs made up the majority of the population in Punjab, the Tribunal formed the view that the applicant would have been able to transfer to another school where he would not have been in the minority, if indeed he had been in the minority in the school he attended.  The Tribunal also noted that the applicant had provided a character reference from his school in support of his student visa application.  It further noted his evidence that his principal had been supportive of him but had had no power to stop the bullying because the leader of the bullies had been the son of a local political leader and that even though there had been other Sikhs in other classes in his year he had wanted to stay in his class because it was the second top class in his year.  The Tribunal considered that a supportive principal would have taken steps to provide protection to the applicant and did not accept that the principal would have left the applicant in a class where he was beaten on a daily basis for the sole reason of allowing him to be in the most academically appropriate class;

   d)the Tribunal noted that the applicant had not lodged his protection visa application until six years after his visit to India in September 2006.  It also noted that the applicant initially claimed that he had not known about protection visas before subsequently saying that he had indeed known about them but had not applied because he had been trying to obtain permanent residency through a skilled visa.  The Tribunal concluded that the applicant’s delay in seeking protection cast doubt on his claims to fear harm in India; and

   e)the Tribunal found that the applicant’s interactions with the Department prior to him lodging his protection visa application did not suggest that he had a genuine fear of harm in India.  It noted that the applicant had made a request for ministerial intervention in November 2011 and had met with departmental officers in September and October 2012 but had not referred to fearing harm in India on the basis of his religion, only referring to difficulties he would have finding a job there.  The Tribunal found that the applicant’s failure to raise his claims to fear harm in India suggested that he had fabricated those claims in order to seek to remain in Australia.

2. Having found that the applicant was not a credible witness, the Tribunal did not accept that he faced harm in India as a result of his religion.  Additionally, while it was willing to accept that the applicant might initially have difficulties obtaining employment in India, the Tribunal did not accept that he would never be able to find employment or that he would suffer serious or significant harm as a result of any short-term unemployment.  In that regard, it noted that the applicant had stated that he had not worked in Australia since 2011 and had been financially supported by his family.  The Tribunal therefore found that the applicant’s family would continue to financially support him on his return to India.

Proceedings in this Court

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

   1.The Tribunal did not consider that I was persecuted for my religious belief though there are evidences to the Tribunal that there is some degree of discrimination against Sikhs in India and made errors of jurisdiction.

   2.I have explained the reasons of my persecutions for my religious belief at the time of my interview.  I also explained to the Tribunal that I was assaulted, discriminated and isolated daily from year 7 to year 12 for my religious belief.  The Tribunal did not accept me as a credible witness and made errors of jurisdiction.

   3.The Tribunal did not consider that I was a victim of systematic harassment as a member of a particular religious group.  The Tribunal made errors of jurisdiction not considering the harm amounting to persecutions I experienced in India for my religious belief.

   4.The Tribunal exceeded its jurisdiction or denied procedural fairness in that the Tribunal failed to put all adverse materials to me and enable me to have an opportunity to submit my explanations and material in reply to the alleged adverse material and made error of jurisdiction.

Grounds 1, 2 and 3

1. The applicant’s arguments as set out in the first three grounds of his application to this Court were directed to his disagreements with the Tribunal over conclusions it reached on the evidence.  The applicant did not suggest that the Tribunal’s findings were of a sort which no reasonable Tribunal would have reached and I am not of the view that there were.  The fact that the Tribunal reached conclusions on the applicant’s claims which the applicant alleged or implied were wrong in a factual sense does not demonstrate jurisdictional error on the Tribunal’s part in circumstances where it is not apparent that any factual error which might have been made was so grave that it represented a legally erroneous approach to decision-making.

Ground 4

1. In the fourth ground of his application the applicant said that the Tribunal had failed to put adverse material to him. This allegation was unparticularised and when asked at the hearing of this application what materials were not put to him but should have been, the applicant was unable to provide a responsive reply. I interpret the allegation to be one of a breach by the Tribunal of s.424A of the Act. The section relevantly provides:

   424AInformation and invitation given in writing by Tribunal

   (1)     Subject to subsections (2A) and (3), the Tribunal must:

   (a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c)invite the applicant to comment on or respond to it.

   ...

   (3)     This section does not apply to information:

   (a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

   (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; or

   (c) that is non‑disclosable information.

2. Most of the information relied upon by the Tribunal in reaching its decision had been supplied in writing by the applicant himself or had been sourced by the Tribunal from independent third parties. By virtue of sub-s.424A(3) such information did not need to be given to the applicant under sub-s.424A(1). To the extent that the Tribunal relied on oral statements made by the applicant or on material in the departmental file, the Tribunal employed s.424AA of the Act to discharge its s.424A obligations, as it was entitled to do. Section 424AA relevantly provides:

   424AA Information and invitation given orally by Tribunal while applicant appearing

   (1) If an applicant is appearing before the Tribunal because of an invitation under section 425:

   (a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b) if the Tribunal does so—the Tribunal must:

   (i)      ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

   (ii)     orally invite the applicant to comment on or respond to the information; and

   (iii)   advise the applicant that he or she may seek additional time to comment on or respond to the information; and

   (iv)    if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

3. I am not persuaded that the Tribunal relied on material which it should have given to the applicant but which it failed to give to him. 

Further ground

1. At the hearing of this application the applicant also submitted that the Tribunal had not given proper consideration to his claims.  However, the claims he made were relatively uncomplicated and the Tribunal’s decision record makes it perfectly plain that regard was had to them.

Conclusion

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

1. In those circumstances the application must be dismissed.

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

Associate: 

Date: 12 November 2015