SZUGM v Minister for Immigration

[2016] FCCA 1847

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUGM & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1847

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 did not consider all the applicants’ claims and did not consider all the material before it.

Legislation:

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

Migration Act 1958, ss.36, 474

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

First Applicant: SZUGM

Second Applicant: SZUGN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1115 of 2014

Judgment of: Judge Cameron

Hearing date: 18 July 2016

Date of Last Submission: 18 July 2016

Delivered at: Sydney

Delivered on: 18 July 2016

REPRESENTATION

The First Applicant appeared in person

Solicitors for the Respondents: Mr M. Glavac of Clayton Utz

ORDERS

1. The application be dismissed.

2. The applicants pay the first respondent’s costs fixed in the amount of $6,646.00.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1115 of 2014

SZUGM

First Applicant

SZUGN

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicants, who are husband and wife, are citizens of India who arrived in Australia on 19 December 2007. On 10 May 2013 they lodged applications for protection visas with what is now the Department of Immigration and Border Protection, alleging that they feared persecution in India because of a dispute over property belonging to the first applicant’s family. On 1 August 2013 the applicants’ applications were refused by a delegate of the first respondent (“Minister”). The applicants then applied to the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. They were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 of the Tribunals Amalgamation Act 2015.

2. In these judicial review proceedings the Court cannot rehear the applicants’ visa applications. 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 of the 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. Although the second applicant completed a separate protection visa application form, she confirmed to the delegate and the Tribunal that she did not have any claims which were separate from those of the first applicant.  The first applicant’s claims for protection were made in his application, at an interview with the delegate on 25 July 2013, at a Tribunal hearing on 19 February 2014 and in a post-hearing written submission to the Tribunal dated 18 March 2014.  As summarised by the Minister in his written submissions, the first applicant relevantly made the following claims:

   (a)his late grandmother left land in her will to his father and one of his four uncles.  Another uncle disputed this arrangement and, with his son (the [First] Applicant’s cousin) and four of his son’s friends, attacked the [First] Applicant and his father on 22 December 2002.  Both the [First] Applicant and his father received injuries, which the [First] Applicant claimed eventually led to the death of his father.  The intention of the attackers was to kill the [First] Applicant and his father.  The [First] Applicant’s uncle and cousin were released on one year good behaviour bonds following police action relating to the incident;

   (b)his father died in 2004 leaving his share in the disputed property to the [First] Applicant’s mother.  The uncle who attacked the [First] Applicant and his father died in 2011.  The dispute regarding the property of the first applicant’s late grandmother is continuing in the courts.  The [First] Applicant does not have any share in the disputed property and cannot explain why his mother, despite being a half-owner in the property, has not been threatened;

   (c)various events had occurred between the attack in 2002 and his arrival in Australia in December 2007, as follows:

   (i)his uncle attacked him and his father after his grandmother’s funeral in 2003.  After this, the attackers took no further action against him or his father because a court case against them was running and they did not want further trouble;

   (ii)after his father died in September 2004, he started moving from place to place in fear of attack, including living in Sikh temples where he obtained free food and lodging.  He was generally unemployed in this period and relied on his mother for support;

   (iii)he claimed that relocating within India did not enable him to avoid harm because he was always worried that the attackers could find him, especially since he was required to register his identity with local authorities if he took up residence at a new location; and

   (iv)before coming to Australia, in 2006 and 2007, he was residing with his parents-in-law ....  However, his parents-in-law were forced to sell the house around six to twelve months before the Applicants went to Australia because there was conflict with the [First] Applicant’s uncle, who owned shops about two kilometres from the house.  The Applicants were in rented accommodation immediately prior to coming to Australia;

   (d)the Applicants left India in fear for their lives on [18] December 2007.  The Applicants delayed for five years in claiming protection in Australia because, on their arrival, they knew nothing about claiming protection.  Further, when the [First] Applicant later told a migration agent about his circumstances, the agent did not advise him to apply for protection.

2. I adopt that summary of the first applicant’s claims.

The Tribunal’s decision and reasons

1. After discussing the claims made by the first applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicants are persons 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 (“Convention”), or s.36(2)(aa) of the Act. In his written submissions the Minister set out the Tribunal’s findings and reasoning for its decision in the following terms, which I adopt:

   7.The Tribunal accepted that the [First] Applicant had become involved in a family dispute stemming from the property left in his grandmother’s will in 2002.  It also accepted that the dispute degenerated into a physical brawl.  However, the Tribunal had strong doubts about the credibility of the Applicants’ claims to fear harm in India in connection with the dispute.  This was because:

   (a)it was difficult to believe that if the [First] Applicant’s uncle, cousin and friends of his cousin had wished to kill him and his father they would not have made any further attempt to do so after December 2002.  The [First] Applicant remained in India for a further five years without suffering harm from them or anyone else;

   (b)the [First] Applicant’s invocation of the court case as the reason preventing further attacks was implausible.  The Tribunal was not satisfied that the cousin and cousin’s friends would now feel free to commit an identical offence to that for which they were punished if they wished to avoid trouble as the [First] Applicant claimed.  It was also found it implausible that having failed to harm the first applicant up to 2007, they would wish to do so over six years later;

   (c)the account of the 2002 incident put forward by the [First] Applicant was inconsistent with the documents he submitted to the Department.  Among these documents was a doctor’s report which showed that the injuries suffered by the [First] Applicant and his father were relatively minor and inconsistent with injuries that could, in the father’s case, lead to death.  These injuries consisted of a small laceration on one leg, and abrasion on the other, and wrist tenderness. Further, the report showed that ... one of the attackers, suffered significant wounds which were inconsistent with the [First] Applicant’s characterisation of the event as two unarmed men against six armed men; and

   (d)the [First] Applicant’s claims that he avoided harm by escaping and living part of the time in Sikh temples, was in conflict with his evidence that he had been living with the Second Applicant and his parents-in-law and then moved into rental accommodation with the second applicant in 2006 and 2007.

   8.In light of those matters, the Tribunal was not satisfied that the Applicants had a well-founded fear of persecution should they return to India. 

Proceedings in this Court

1. In an amended application filed on 4 August 2014 the applicants alleged:

   1.I submit copy of the transcript of the Refugee Review Tribunal to show the Honourable Court how my claim was misunderstood.

   2.The Tribunal ignored explanation which appears in Court Book p.183-188.

   3.The Tribunal erred by ignoring the severity of the attack and its seriousness as well as my subjective well founded fear of persecution which is based on probative evidence.

Ground 1

1. The first ground of the amended application should, it appears, be understood by reference to the initiating application which was filed on 24 April 2014.  In that application the applicants alleged:

   1.The Refugee Review Tribunal misunderstood my claim and ignored important information contrary to the evidence given.

   2.I ask the Honourable Court to allow me to provide a copy of the interview to show how the Tribunal made serious error and came to a conclusion that I am not a refugee.

2. The issues raised by the first paragraph of the amended application and the two paragraphs of the initiating application are that the Tribunal misunderstood the applicants’ claims and failed to take information into account. 

3. Turning to the first of these issues, the Tribunal’s understanding of the claims made by the applicants, it is to be noted that those claims were not complicated and alleged a contested inheritance, intra-family violence and the risk of that violence being repeated.  The Tribunal set out the claims made by the applicants over seven pages of its decision record and then proceeded to analyse those claims in the following two pages.  Having reviewed the information in the Court Book, which was exhibit A and was the only evidence before the Court, it did not appear to me that the Tribunal did misunderstand what the applicants had alleged at various stages of the visa application process.  Significantly, the applicants did not identify at the hearing of this application in what way the Tribunal might have misunderstood the claims they were making. 

4. The second element of these asserted grounds of review turned on, it appears, a transcript of the Tribunal hearing.  A copy of what appears to be a transcript of the Tribunal hearing is annexed to an affidavit affirmed by the second applicant on 31 July 2014 and filed on 4 August 2014.  However, the applicants did not seek to rely on that transcript and the second applicant’s affidavit was not read.  When asked at the hearing if he would like to point to some matter recorded in the transcript which he said the Tribunal had not considered, the first applicant, who appeared at the hearing for both applicants, had nothing substantive to say.  He did not take up the Court’s invitation to substantiate his allegations by reference to the transcript. 

5. For these reasons, the first ground of the amended application and grounds 1 and 2 of the initiating application did not identify jurisdictional error on the Tribunal’s part. 

Ground 2

1. In the second ground of the amended application the applicants alleged that the Tribunal failed to consider the migration agent’s written submissions of 18 March 2014, referred to earlier in these reasons.  Those submissions were reproduced at pp.183 to 188 of the Court Book and it would appear that the attachments to those submissions were reproduced at pp.189 to 198 of the Court Book. 

2. Contrary to this allegation, the migration agents’ submissions were summarised at para.19 of the Tribunal’s decision record and the attachments to that document referred to in para.20 of the decision record.  It is clear that the Tribunal did not ignore the submissions or the documents as alleged.

Ground 3

1. The allegation that the Tribunal ignored the severity of the attack the first applicant alleged had been made upon him and his father seems to have been linked to the first applicant’s submission at the hearing of this application that the Tribunal had not read the medical reports which he had supplied to it as proving at least one element of his claim, namely, that he and his father had been badly injured in 2002.  He submitted at the hearing of this application that the documents had not been acceptable to the Tribunal. 

2. It should be noted that the Tribunal did not reject the genuineness of the medical documents submitted by the applicant in connection with that alleged attack.  It simply concluded that they did not record the injuries or the severity of injury which the first applicant had alleged.  Given the evidence before it, it was open to the Tribunal to conclude that the medical documents did not support the first applicant’s claims concerning the alleged attack in 2002. 

Ground 4

1. The proposition that the documents submitted to the Tribunal had not been acceptable to it might possibly have comprehended all of the documents supplied by the applicant and his migration agents during the visa application and review process.  These fall into four categories: medical, legal, sale of land and passports. 

2. To the extent relevant, the medical documents submitted by the applicants have already been considered in the context of the third ground of the amended application.  The legal documents submitted by the applicants, which tended to deal with the events subsequent to the alleged attack in 2002, were not rejected by the Tribunal.  In fact, at para.28 of its reasons the Tribunal stated that it was prepared to accept, albeit with some reservations, that a complaint to the police had been made and ended in convictions against the first applicant’s uncle and cousins. 

3. The sale of land was not specifically dealt with by the Tribunal but it can be accepted, given its other findings on the credibility of the applicants’ account concerning the alleged attack, that the Tribunal did not consider the sale of land document to be of significant probative value and so let that aspect of the case be subsumed in other findings of greater generality and significance to the applicant’s account.  Finally, para.21 of the Tribunal’s reasons implies that the Tribunal accepted the genuineness of the passport documents. 

Ground 5

1. Both the amended application and the applicants’ submissions to the Court invited the Court to review the merits of the applicants’ visa applications.  As explained to the first applicant at the hearing of this matter, and as set out earlier in these reasons, the Court cannot do that. 

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated. 

2. Consequently, the application will be dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 21 July 2016