SZUFO v Minister for Immigration

[2014] FCCA 2873

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUFO v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2873

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Rules 2001 (Cth)

Migration Act 1958 (Cth), s.424AA

Applicant: SZUFO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1070 of 2014

Judgment of: Judge Driver

Hearing date: 8 December 2014

Delivered at: Sydney

Delivered on: 8 December 2014

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms C Hillary of DLA Piper

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,100.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1070 of 2014

SZUFO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (Tribunal).  The decision was made on 24 March 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. 

2. The applicant is from India.  He arrived in Australia on 17 December 2007 on a tourist visa.  He left Australia on 22 September 2008 and returned on 17 December 2008 on another tourist visa.  On 22 December 2008, he was granted a student visa.  That visa was cancelled on 14 July 2010.  He left Australia again on 1 November 2009 and returned on 28 November 2009.  He applied for a protection visa on 24 April 2013. 

3. The applicant claims to fear harm on India from a money lender who is connected to the Hindu Shiv Senna and Bajrang Dal parties.  The applicant is a Sikh and it is apparent that his claim had a religious connection.  He asserts that the original debt to the money lender was paid, but that the money lender was extorting him.  He also claims to fear harm in India from the father and family of his ex-wife.  He claims that the family of his former wife are politically connected.  He and his former wife were divorced on 11 March 2013.  He claims that this embarrassed and humiliated her family.  He also claimed that if forced to leave Australia, he would suffer emotional and psychological harm as a result of being separated from his current wife, who he married in Australia. 

4. The applicant was interviewed by the Minister’s delegate on 15 October 2013.  The delegate refused to grant the visa on 21 October 2013.  That refusal was based on adverse credibility findings. 

5. The applicant sought review of that decision before the Tribunal. The Tribunal was unable to make a favourable decision on the papers and invited the applicant to attend a hearing. The applicant appeared before the Tribunal on 3 March and 17 March 2014. The applicant was questioned at some length about his claims. The Tribunal, during the course of the hearing, expressed credibility concerns. The Tribunal purported to go through a process of disclosure pursuant to s.424AA of the Migration Act 1958 (Cth). The Tribunal was particularly concerned about inconsistencies in the applicant’s evidence over time.

6. At [38] of its decision[1] the Tribunal concluded that the cumulative impact of the inconsistencies in the applicant’s evidence and his delay in applying for a protection visa was that the Tribunal did not believe that he was being truthful.  The Tribunal rejected as untrue all of the applicant’s claims concerning the money lender.  The Tribunal also found that the applicant did not qualify for protection because of his problems with his former wife’s family. 

   [1] Court Book, page 149

7. The Tribunal further noted that the applicant’s present wife is only on a temporary visa, due to expire in 2015.  Accordingly, his removal from Australia would not have the result that he would be exposed to serious psychological harm.  The Tribunal also rejected the applicant’s claim for complementary protection. 

8. These proceedings began with a show cause application filed on 17 April 2014.  The applicant now relies upon an amended application filed on 16 July 2014.  There are four particularised grounds in that application:

   1. The Refugee Review Tribunal made jurisdictional error by failing to conduct review of the delegate’s decision as it failed to consider whether I belong to a particular social group.

   Particulars

   The Tribunal failed to consider whether I was a member of a particular social group consisting of money borrowers, who are in conflict with powerful money lenders that have connection with police and parliamentarians.

   If women in Pakistan constitute a particular social group. Then such a group as above exists in India.

   I draw analogy with 121 6433 (2012) RRTA1122.  This matter refers to the behaviour of money lenders in Malaysia.  I assert that I would similarly be denied effective state protection.

   2. The Refugee Review Tribunal made jurisdictional error by failing to conduct a review of the delegates decision in accordance with the Migration Act 1958 and law of evidence in relation to the finding of applicant not credible at page 9 of the RRT decision and in reached its conclusion without regard to relevant evidence.

   Particulars

   In affirming the delegate’s decision the Tribunal relied upon “cumulative impact of the applicant’s inconsistencies” at page 8 of RRT decision.  There is no evidence finding in any material considered by the RRT.

   3. The Refugee Review Tribunal made jurisdictional error by failing to consider relevant country information.

   Particulars

   The Tribunal should have obtained and considered relevant country information but it failed to obtain and consider such information.

   4. The Migration Review Tribunal has misunderstood its task and essence of my matter.  Therefore asked the wrong questions by stating that the applicant has fabricated claims and concocted evidence to achieve an immigration outcome at page 8 of RRT decision.

   Particulars

   I contend that while the evidence may have been “unsatisfactory” to find that the Tribunal was not satisfied with the claim, the Tribunal erred in finding “fabricated claims and concocted evidence” as no particular evidence existed to demonstrate fabrication and concoction.  SZGGT v Minister for Immigration and Multicultural and Indigenous Affiars (2006) FCA 435 at (60)-(64); SZEOP v Minister for Immigration and Citizenship (2007) FCA 807 at 24 (Rares J)

   (errors in original)

9. The applicant also relies upon two affidavits made on 16 April and 15 July 2014.  I received those affidavits as submissions. 

10. I have before me as evidence the court book filed on 14 May 2014. 

11. I discussed with the applicant during oral argument the grounds of review in the amended application.  As to the first ground, the applicant claims that he did put to the Tribunal his asserted membership of a particular social group.  Assuming that that is true, it does not follow that the Tribunal made a jurisdictional error by not considering the postulated group.  The Tribunal rejected the factual basis for the applicant’s claim concerning the moneylender.  In the light of that rejection, any nexus between the claim and the Refugees Convention is academic.

12. The second ground takes issue with the Tribunal’s adverse credibility finding.  The applicant says that the finding is based on no evidence.  I reject that contention.  It is clear from the Tribunal’s decision that its adverse credibility finding was based upon its assessment of the evidence presented by the applicant himself.

13. As to the third ground, I invited the applicant to point to any country information that the Tribunal overlooked.  He was not able to do so.   

14. The fourth ground also takes issue with the Tribunal’s adverse credibility finding.  In particular, it takes issue with the Tribunal’s finding that the applicant had fabricated claims and concocted evidence.  The applicant relies upon two reported decisions of the Federal Court.  As I explained to the applicant in this connection, it is important to draw a distinction between a finding that someone has fabricated a purportedly corroborating document, and other evidence. 

15. A finding that a document has been fabricated is a finding tantamount to fraud.  Such a finding needs to be based on something.  A finding that other evidence has been fabricated or concocted may be a different matter.  In the context of the present Tribunal decision it is simply a strenuous statement of disbelief of what the applicant told the Tribunal.  The Tribunal was not generous in making its findings.  For example, the Tribunal rejected as untrue the entire claim even though it accepted that the applicant was consistent as to some aspects of his claims such as the base amount of the loan, when it was initially borrowed and whether and for what reason his parents paid it back. 

16. The Tribunal noted, however, that the applicant might have learnt those aspects while apparently not learning effectively other parts of his claims.  The Tribunal might have found that those core aspects of the applicant’s claims were true but that his allegations of past harm based upon the loan were not.  That possibility, however, is merely a recognition that reasonable minds can differ about the Tribunal’s assessment of the applicant’s claims.  In my view, there is no arguable case of jurisdictional error arising from Ground 4.

17. I conclude that the applicant has failed to raise an arguable case of jurisdictional error by the Tribunal.  Further, on my own reading of the material no arguable case is available. 

18. Accordingly, I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Rules 2001 (Cth).

19. In consequence of the dismissal of the application, the Minister seeks an order for costs.  The applicant indicated he might need some time to pay.  I will not require payment by any particular time. 

20. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,100.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  10 December 2014