SZUCZ v Minister for Immigration

[2015] FCCA 2761

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUCZ v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2761

Catchwords:
MIGRATION – Application to review decision of the Refugee Review Tribunal – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.424A, 424AA, 425

Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14
Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39
Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16

SZOOR vMinister for Immigration and Citizenship (2012) 202 FCR 1; [2012] FCAFC 58

Applicant: SZUCZ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 818 of 2014

Judgment of: Judge Barnes

Hearing date: 29 September 2015

Delivered at: Sydney

Delivered on: 29 September 2015

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.

2. The Application be dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 818 of 2014

SZUCZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Administrative Appeals Tribunal, formerly the Refugee Review Tribunal, dated 13 March 2014.  The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa. 

2. The Applicant, a citizen of India, arrived in Australia in May 2008 as the holder of a Student visa.  He applied for a protection visa in February 2013.  The Application was refused and he sought review by the Tribunal.  He attended a Tribunal hearing.

3. In essence, the Applicant sought a protection visa on the basis of his support for the Congress Party.  He claimed that when he returned to India in March 2011 to visit his family, he spoke at a Congress Party meeting and that following the meeting he was confronted by members of the ruling Shiromani Akali Dal (SAD) Party and that he injured one of them (who was a relative of a politician).  He claimed that he was assaulted and that since that time he and his family had been threatened by SAD Party members.  He claimed to fear harm if he returned to India and that the authorities would not protect him as they supported the politician’s relative with whom he had fought.  He claimed to fear that false charges would be pressed against him.

4. The Tribunal rejected the application, finding that the Applicant was a witness of low credibility.  It based that finding on a number of matters, in particular inconsistencies between the Applicant’s written statement of claims, his evidence to the delegate and his evidence to the Tribunal. 

5. The Tribunal also found that at the hearing the Applicant had sometimes appeared uncertain when asked for details and context for his claim.  The Tribunal formed the impression that he was seeking to adhere to his “quite brief original statement in order to redress inconsistencies between that and his Department interview” and that he did so in circumstances where the delegate had had regard to such inconsistencies in refusing the application. 

6. The Tribunal found that the Applicant did not appear to know the contents of his statement well and did not appear familiar with aspects of his claims, including his claims that his opponents had attempted to abduct him and that he was almost jailed on false charges. 

7. The Tribunal also had regard to the Applicant’s delay in seeking protection from the time of his most recent return to Australia in early June 2011 until February 2013.  It found that this suggested that the Applicant did not genuinely require protection. It did not accept his explanation that he waited for the outcome of a Migration Review Tribunal review of his application in relation to refusal of a student visa.

8. The Tribunal found that its general impression of the Applicant’s credibility and his significant delay in seeking protection raised serious claims about his need for protection.  However it went on to address particular aspects of the Applicant’s claims and evidence. 

9. The Tribunal did not accept at face value the Applicant’s claims that he made a pro-Congress or anti-SAD speech at a meeting or that he fought with a relative of a leading SAD figure.  It set out its concerns about these claims, including the Applicant’s evident lack of familiarity with or interest in the Indian National Congress Party or general politics.  It gave examples of his lack of knowledge.  The Tribunal had regard to inconsistencies in the Applicant’s evidence about where the meeting was held, its time and the number of attendees and to his vague statements about the format of the meeting and his role in it.  It found that he gave little insight as to why he was chosen to speak after more than two years living outside India, except to say that locals considered him an educated person.

10. The Tribunal also had regard to issues in relation to the Applicant’s oral evidence about SAD supporters he claimed had attended the Congress Party meeting.  The Tribunal recorded that at the hearing it had reminded the Applicant that in his written statement he had claimed the people who caused the confrontation outside the meeting were drunk.  It was of the view that if the Applicant had spotted a group of five to ten such people at a public meeting as he claimed at the Tribunal hearing, he would have noticed if they were in the same drunken state as his claimed attackers. 

11. The Tribunal found that the Applicant’s evidence about the alleged attack (which it detailed) was weak and uncertain and inconsistent about who punched first.  It also had regard to the fact that, when asked, the Applicant had, after some hesitation, provided a name for the SAD politician who was the relative of the person he punched but had then said he was not sure of the name of the politician’s son (or nephew as he told the delegate).  The Tribunal was of the view that if the Applicant’s claims were true, he would have had a direct interest in identifying and finding out more about the person with whom he fought who now formed the basis for his protection claims. 

12. The Tribunal also addressed the Applicant’s claims that he and his family were threatened.  It found that the Applicant’s account of his and his family’s experiences compounded its doubts about the truth of his protection claims.  It found his evidence in this respect was unpersuasive and inconsistent (including in relation to whether SAD members had attempted to abduct him and whether false charges had been laid against him).  It also had regard to the fact that, notwithstanding the events the Applicant complained of, he had not sought to find an earlier flight out of India.   The Tribunal was of the view that the Applicant had tailored his evidence and his responses about seeking protection from the police in India to show that he had no option but to leave the country.

13. The Tribunal concluded that, considered cumulatively, the outlined inconsistences, anomalies and uncertainty in the Applicant’s evidence, its strong doubts about his account of the political meeting and fight as well as his delayed protection visa application led it to reject all of his protection claims.  It did not accept his claims that he spoke at a Congress meeting in May 2012 or that he fought with SAD youths on political or other grounds, or his claims about subsequent threats, harassment and denial of protection or that he was in hiding in India. 

14. The Tribunal did accept, on the basis that it may be plausible (although far from certain), that the Applicant preferred the Congress Party to the ruling SAD-BJP coalition in Punjab (as did his father), but did not accept that he had a strong political opinion or that he had ever spoken out on political issues.  It found that the Applicant had not claimed, and there was nothing to suggest, that he was at risk of persecutory harm merely for favouring Congress or that the police would withhold protection on discriminatory Convention-related grounds.   

15. Having rejected the Applicant’s claims of past harm, the Tribunal did not accept that he had come to the adverse attention of SAD activists, the police or anyone else or that he had suffered persecutory harm for any reason.    Insofar as the Applicant claimed that he could not go back to the Punjab because it was so corrupt, having found that his claims of past harm were untruthful, the Tribunal did not accept that he had formed a separate view that he was unable to return to Punjab because of its political or criminal culture generally.  The Tribunal found there were no factors to suggest that the Applicant would suffer Convention-related persecution in the future.  It was not satisfied he met the Refugees Convention criterion. 

16. The Tribunal considered the complementary protection criterion.  It recorded that the Applicant had stated that he did not fear returning to India for any reasons apart from the claims and evidence it had considered. It referred to its findings of fact that such claims were completely untrue.  The Tribunal was of the view that the Applicant’s claim that he could not go to Punjab because it was a corrupt place was merely made to bolster his overall claims for protection.  In any event, it found that to the extent that he disapproved of corrupt practices in Punjab or other parts of India, such risk was one faced by the population of India generally and not by the Applicant personally and that the mere existence of corruption or poor governance did not involve significant harm.  It was not satisfied that the Applicant met the complementary protection criterion.

17. The Applicant sought review of the Tribunal decision by application filed in this Court on 27 March 2014.  There are three grounds in the application.  The Applicant did not file written submissions.  He was given the opportunity to address his grounds in oral submissions. 

18. The first ground is expressed as a failure to accord procedural fairness.  However the particulars to this ground involve a disagreement with the Tribunal’s factual findings.  The first aspect of ground 1 is a contention that the Tribunal failed to carry out its role in an inquisitorial manner “when it should have considered all of the evidence before it rather than make a contrary finding”.  Issue was taken with particular aspects of the Tribunal findings, including the fact that it accepted that the Applicant preferred the Congress Party to the ruling SAD-BJP Coalition in Punjab, but did not accept that he had a strong political opinion or had ever spoken on political issues and found that there was nothing to suggest that he was at risk of persecutory harm merely for favouring the Congress Party. 

19. I gave the Applicant the opportunity to address this ground and to explain what the evidence was that the Tribunal had not considered.  His response was that the Tribunal considered little things and then made an adverse finding and that he just wanted the Court to remit the matter. 

20. There is nothing in the material before the Court to indicate that the Tribunal failed to consider evidence, let alone that it failed to do so in a matter amounting to jurisdictional error.  

21. Insofar as the Applicant’s general contention that the Tribunal failed to carry out its role in an inquisitorial manner takes issue with the conduct of the Tribunal hearing, the only evidence of the hearing before the Court is the Tribunal’s account in its reasons for decision. In addition to discussion of the Applicant’s oral evidence in its findings, in an Appendix to its reasons the Tribunal gave a short account of the Tribunal hearing, including the fact that it put certain matters to the Applicant under s.424AA of the Migration Act1958 (Cth) (the Act). There is nothing in the material before the Court to indicate any failure by the Tribunal to comply with its obligations under ss.424A or 425 of the Act, or to support a contention that the Tribunal failed to accord the Applicant procedural fairness. Insofar as the Applicant disagrees with the Tribunal’s factual findings, he seeks impermissible merits review.

22. The same may be said in relation to the second aspect of the Tribunal decision particularised in this part of ground 1.  The Applicant took issue with the Tribunal’s account of the discussion at the Tribunal hearing of the Applicant’s claims about what occurred after the alleged fight including the fact that the Tribunal recorded that it had expressed disquiet that, having come to the Applicant’s village home looking for him, such a large group (of five to ten SAD youths) could be so easily persuaded to go away empty-handed and also recorded that when it asked the Applicant what happened to his friends who he claimed had been questioned about his whereabouts by the SAD youths, he had replied uncertainly that they might have been beaten.  The particulars set out these aspects of the Tribunal’s decision and the Tribunal’s findings that it was not satisfied that the Applicant would be aware of what the SAD youths said to his friends without also inquiring as to their welfare. 

23. There is nothing in the material before the Court to suggest that the Tribunal failed to comply with its obligations under the Migration Act, or otherwise failed to accord the Applicant procedural fairness in relation to this aspect of its decision. There is no transcript of the Tribunal hearing in evidence. The Applicant’s disagreement with the Tribunal’s factual findings about aspects of his claims seeks impermissible merits review.

24. The next part of ground 1 takes issue with the weight the Tribunal gave to the Applicant’s claims, on the basis that the Applicant provided an honest explanation of his claims.  In particular, issue is taken with the Tribunal’s findings that the Applicant’s delay in seeking protection suggested that he did not genuinely require protection and that its general impression of his credibility and his significant delay in seeking protection raised serious questions about his need for protection.

25. First, the weight to be given to particular items of evidence is a matter for the Tribunal.  The Tribunal is not required to accept uncritically all of the claims made by an Applicant.   Insofar as the Applicant takes issue with the Tribunal’s credibility finding, credibility is a matter for the Tribunal.  Its findings in that respect were open to it on the material before it for the reasons that it gave. 

26. If the Applicant is to be taken as claiming that the Tribunal had a duty to inquire about his claims (a matter perhaps more directly raised by ground 3), the Tribunal has no general duty to inquire.  It has not been established that there was a critical fact, the existence of which was easily ascertained, such as to enliven any obligation to inquire in the sense considered in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39. Ground 1 is not made out.

27. Ground 2 also takes issue with aspects of the Tribunal findings.  This ground alleges that the Tribunal acted in an unreasonable manner when dealing with the Applicant’s claims because of its “failure to consider the claims in accordance with the UN Convention relating to Status of Refugee due to the following conclusions” and then proceeds to list the Tribunal’s conclusions in relation to the Applicant’s claims in five paragraphs of its reasons.  The Applicant had nothing to say in relation to this ground at the hearing before me. 

28. Issue is taken with the Tribunal’s statement that it put to the Applicant its concern that “his ambition of obtaining permanent residency as a student was very uncertain, and a person requiring protection could be expected to secure their long-term future safety as quickly as possible”.  Such a particular takes issue with the Tribunal account of what occurred at the Tribunal hearing.  It does not establish or support any claim of unreasonableness, whether due to irrationality or illogicality or otherwise as considered in Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16.

29. Further, the Applicant’s general, but unexplained, disagreement with the Tribunal view that he had struggled to give meaningful details about a political party’s representation in the government and overall did not indicate evident familiarity with or interest in Indian National Congress Party or general politics is not such as to establish either a failure to consider an integer of his claims or unreasonableness, let alone a failure to apply the law correctly (as appears to be alleged). 

30. The Applicant also took issue with the Tribunal’s general conclusion, based on all its concerns and doubts and his delayed protection visa application, that it rejected all his protection and associated claims.  This particular seeks impermissible merits review, as does the disagreement with the Tribunal’s conclusions in relation to whether it was satisfied that he met the Refugees Convention or complementary protection criteria. 

31. The particulars to ground 2 assert generally that the Tribunal acted in an unreasonable way when dealing with the Applicant’s claims and that it failed “to consider the aspect of persecution or serious harm which had to be satisfied in order to determine whether the Applicant has a well founded fear of serious harm”. 

32. However, as indicated, the Tribunal considered the Applicant’s protection claims in their entirety, but found, for reasons which it gave which were open to it, that those claims were completely untrue.  It has not been established that the Tribunal’s reasoning in that respect was such as to result in a decision which another decision-maker would be precluded from making (see SZOOR vMinister for Immigration and Citizenship (2012) 202 FCR 1; [2012] FCAFC 58 at [15] and [84] – [85]). Any argument by the Applicant to the contrary does no more than arise from a difference of degree, impression and empirical judgment which, as Heydon J pointed out at [78] in SZMDS, cannot give rise to jurisdictional error on the part of the Tribunal.  Ground 2 is not made out.

33. The third ground involves an allegation that the Tribunal fell into jurisdictional error in failing to request more information regarding the Applicant’s persecution.  In oral submissions the Applicant contended that if the Tribunal had wanted more information or proof it could have asked him.  

34. However it is for an Applicant to advance evidence and arguments in support of his claims and for the Tribunal to decide on the material before it whether such claims are made out.  The Tribunal was not obliged to gather, or to prompt the Applicant to provide, further information to establish his case (see generally Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14). As outlined above, this is not a case in which the Tribunal erred in failing to make inquiries.

35. As jurisdictional error has not been established on any basis contended for by the Applicant the application must be dismissed.

36. The Applicant has been unsuccessful.  There is nothing in the circumstances of this case to warrant a departure from the normal principle that an unsuccessful Applicant should meet the costs of the First Respondent.  The amount sought is reasonable and appropriate in light of the nature of this and other similar cases. 

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  9 October 2015