SZUGM v Minister for Immigration and Border Protection
[2016] FCA 1384
•22 November 2016
FEDERAL COURT OF AUSTRALIA
SZUGM v Minister for Immigration and Border Protection [2016] FCA 1384
Appeal from: SZUGM v Minister for Immigration & Border Protection [2016] FCCA 1847 File number: NSD 1266 of 2016 Judge: FARRELL J Date of judgment: 22 November 2016 Catchwords: MIGRATION – appeal from judgment of Federal Circuit Court of Australia – protection visas – whether Tribunal and primary judge misunderstood first appellant’s claims – where first appellant claims to fear harm on basis of family dispute over property – appeal dismissed Legislation: Federal Court of Australia Act 1976 (Cth) s 43(3)(d)
Federal Court Rules 2011 (Cth) rr 36.03(a)(i), 40.43(3)(b)
Migration Act 1958 (Cth) s 424A, 474
Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2
SZUGM v Minister for Immigration & Border Protection [2016] FCCA 1847
Date of hearing: 3 November 2016 Date of last submissions: 11 November 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 45 Counsel for the Appellants: The appellants appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Mr M Glavac of Clayton Utz Counsel for the Second Respondent: The second respondent submitted save as to costs ORDERS
NSD 1266 of 2016 BETWEEN: SZUGM
First Appellant
SZUGN
Second Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
FARRELL J
DATE OF ORDER:
22 NOVEMBER 2016
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellants pay the first respondent’s costs fixed in the amount of $3,617.95.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
This is an appeal from a judgment of the Federal Circuit Court of Australia (FCCA) delivered on 18 July 2016. The primary judge dismissed an application for judicial review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal): see SZUGM v Minister for Immigration & Border Protection [2016] FCCA 1847. On 1 April 2014, the Tribunal affirmed a decision of a delegate of the Minister made on 1 August 2013 to refuse the appellants Protection (Class XA) visas and set out its reasons in a Statement of Decision and Reasons (Decision Record or DR). The appellants filed a notice of appeal from the judgment of the FCCA on 5 August 2016, within the 21 day period prescribed under r 36.03(a)(i) of the Federal Court Rules 2011 (Cth).
BACKGROUND
The appellants, who are husband and wife, are citizens of India. I will refer to them as the “husband” and “wife” when it is necessary to distinguish between them. They arrived in Australia on 19 December 2007 on Student (Subclass 573) visas. On 10 May 2013 they applied to what is now the Department of Immigration and Border Protection for Protection (Class XA) visas.
TRIBUNAL
On 22 August 2013 the appellants applied to the Tribunal for review of the delegate’s decision. The appellants appeared before the Tribunal on 19 February 2014 to give evidence and present arguments; they were represented in relation to the review by their registered migration agent. Their advisor filed post-hearing written submissions and documents on 18 March 2014: DR [2]-[3], [16], [19]-[20].
Although the wife completed Part C of the protection visa application form, she confirmed to the delegate and the Tribunal that she did not have any claims separate from those of her husband: DR at [14], [22].
In the Decision Record at [9]-[20] the Tribunal set out a detailed summary of the appellants’ claims in their visa applications and attached documents; the appellants’ evidence at the interview with the delegate; the appellants’ evidence at the Tribunal hearing and the post-hearing submissions from the appellants’ advisor which attached court and medical documents submitted previously to the Department, as well as medical reports relating to the husband from April 2013.
The Tribunal summarised the husband’s claims as fearing “harm in India at the hands of relatives who wish to seek revenge over a disputed property”. Although the husband told the Tribunal at the hearing that this was his only basis to fear harm in India, in the post-hearing submissions, the appellants’ advisor said that this claim had a basis in all five Convention grounds: DR at [17], [19], [22].
While the Tribunal was prepared to accept that the husband’s father came into possession of a half share in a piece of land left to him by the husband’s grandmother and that a dispute arose between his father and one of his uncles over this matter, the Tribunal had “strong doubts as to the credibility of the [husband’s] claims to fear harm in India in connection with this dispute”: DR at [24]. As put to the husband at the hearing, the Tribunal found it “difficult” to believe that, if the husband’s uncle, his cousin and his cousin’s friends wished to kill him and his father, they did not attempt to do so after the alleged attack in 2002. Indeed the husband had remained in India for a further five years. The husband’s explanation as to why he was able to escape harm during that time was that he moved around after his father’s death in 2004, however that was in conflict with his evidence to the effect that he had been living with his wife and parents-in-law until they sold their house between six and 12 months before they left India. Having failed to harm the husband up to the time of his departure in 2007, the Tribunal also found it “implausible” that the husband’s relatives would seek to do so over six years after he had left India: DR at [25]-[26].
Further, the Tribunal found that the appellant’s account of the 2002 incident at the Tribunal hearing was inconsistent with the documents submitted to the Department which included a report said to have been prepared by a doctor describing injuries to the husband, his father and a third person. The description of his father’s injuries in the report did not support the husband’s description of the injuries sustained by his father. The Tribunal was also not satisfied that the reported injuries were consistent with a photograph submitted by the husband: DR at [27].
While the Tribunal was prepared to accept that on one occasion in December 2002 a dispute between the husband’s father and his uncle “degenerated into a physical brawl” it was not satisfied that either the husband or his father suffered serious injuries. The Tribunal also accepted that a complaint was made to the police which resulted in convictions against the husband’s uncle and cousin, however it was not satisfied that the husband was subsequently targeted by his uncle, his cousin or his cousin’s friends or that they would be motivated to harm him if he should return to his village: see DR at [28].
In light of the information before the Tribunal, considered individually and cumulatively, the Tribunal was not satisfied there is a real chance that on return to India the husband would suffer harm of any kind for any of the Convention reasons. Accordingly, the Tribunal was not satisfied that the husband is a refugee. As the Tribunal was not satisfied that the husband would suffer harm of any kind at the hands of his cousin or his cousin’s friends over the disputed land inheritance and that the husband had not identified any other factors which could be relevant to an assessment of Australia’s complementary protection obligations, the Tribunal was not satisfied that there are substantial grounds to believe that, as a necessary and foreseeable consequence of the husband being removed from Australia to India, there would be a real risk that he would suffer harm which would amount to significant harm. Accordingly, the Tribunal affirmed the delegate’s decision not to grant the appellants protection visas: DR at [29]-[33].
FCCA
The appellants lodged an application for judicial review of the Tribunal’s decision in the FCCA on 24 April 2014. The application raised the following two grounds (as written):
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 copy of the interview to show how the Tribunal made serious error and came to a conclusion that I am not a refugee.
An amended application was filed on 4 August 2014; that application listed three grounds of review (as written):
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.
The primary judge noted, that in accordance with s 474 of the Migration Act 1958 (Cth) and Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2, the FCCA can only set aside the Tribunal’s decision if it is affected by jurisdictional error: J[2]. The primary judge also explained to the husband that the Court could not review the merits of the appellants’ visa applications, an issue which was raised by both the amended application and the submissions to the Court: J[20].
The primary judge identified the issue raised by the two grounds in the initiating application and the first ground in the amended application as a complaint that the Tribunal misunderstood the appellants’ claims and failed to take information into account. Having reviewed the Court Book it “did not appear” to the primary judge that the Tribunal had misunderstood what the appellants had alleged at various stages of the visa application process. The primary judge noted the Tribunal had set out the appellants’ claims over seven pages in the Decision Record. Further, the appellants did not identify in what way the Tribunal had misunderstood their claims nor did the husband take up the Court’s invitation to substantiate his allegation by reference to the transcript of the Tribunal hearing. Accordingly, the primary judge dismissed grounds one and two of the initiating application and ground one of the amended application: J[9]-[12].
In respect of the second ground in the amended application, the primary judge noted that pp 183-188 of the Court Book contained the migration agent’s post-hearing written submissions. These submissions and their attachments (which appeared at pp 189-198 of the Court Book) had been summarised by the Tribunal in the Decision Record at [19]-[20] such that it was “clear that the Tribunal did not ignore the submissions or the documents as alleged”: J[13]-[14].
In disposing of the third ground in the amended application the primary judge noted that the Tribunal did not reject the genuineness of the medical documents submitted by the appellants. Rather, the Tribunal found that the medical documents did not record the injuries or severity of the injuries which the husband had alleged. That finding was open to the Tribunal on the evidence before it: J[15]-[16].
The primary judge then considered the claim that the documents submitted by the appellants and their migration agents during the course of the visa application and review process “had not been acceptable” to the Tribunal; the primary judge dealt with this proposition as ground four. He found that the documents fell into four categories: medical, legal, sale of land and passports. The primary judge dealt with them in turn at J[17]-[19]:
(1)the medical documents had been considered in the context of the third ground in the amended application;
(2)the legal documents were not rejected by the Tribunal and the Decision Record at [28] showed that the Tribunal had accepted (albeit with reservations) that the husband had made a complaint to the police which resulted in convictions against his uncle and cousin;
(3)while the sale of land was not specifically dealt with by the Tribunal, given its other credibility findings, the Tribunal did not consider the sale of land document to be of significant probative value and let that aspect of the case be subsumed in other findings of greater generality and significance to the husband’s account; and
(4)the Tribunal accepted the genuineness of the passport documents in the Decision Record at [21].
Having found that the appellants failed to demonstrate jurisdictional error on the part of the Tribunal, the primary judge dismissed the application for review with costs: J[21]-[22].
APPEAL TO THIS COURT
The appellants’ notice of appeal raises two grounds of appeal (as written):
1. When I appeared before the Judge I understood that my case was dismissed. His Honour ignored my fear of persecution and harm and misunderstood my claim as well as the Tribunal did.
2. The Tribunal and His Honour accepted the family dispute and the attack yet failed to accept the fear of persecution and harm contrary to the medical evidence in support of the claim.
The appellants appeared at the hearing. The conduct of the hearing was assisted by an interpreter in the Punjabi and English languages.
The Minister relied on written submissions filed in accordance with orders made by the Registrar. The Minister was represented at the hearing.
Although the appellants did not file written submissions in accordance with case management orders made by the Registrar in preparation for the hearing, they sought leave to hand up brief written submission at the hearing. The Minister’s representative did not object and leave was granted.
The appellants’ first submission was (as written):
The Tribunal’s decision which appears in Court Book (CB) p.203-214 the Tribunal on p.213 point 28 fell into error of law based on the evidence before it by concluding that I was ever targeted by my Uncle. Such finding is contrary to the evidence before the Tribunal and which is in the Court Book.
The wife confirmed that the appellants’ concern was that the Tribunal did not accept that the husband had an ongoing fear of harm from his relatives and their friends.
The Minister submitted that:
(1)The Decision Record at [28] is a global evaluation of the evidence in which the Tribunal accepts that a “physical brawl” occurred in 2002; finds that the evidence does not support the appellants’ claim that the husband and his father were seriously injured; accepts (with reservations) that a complaint was made to the police which resulted in a conviction against the husband’s uncle and his cousin; and does not accept that the husband was ever targeted by his uncle, his cousin or his cousin’s friends after the brawl in 2002 or that they would be motivated to harm him if he returns to his village more than six years after he left.
(2)Those findings are supported by the Tribunal’s detailed consideration of the evidence in the Decision Record at [24]-[27].
(3)The appellants’ submission is a mere assertion.
I accept the Minister’s submissions, subject to what follows in relation to the appellants’ fourth submission. The appellants’ concern as to the outcome of the Tribunal process does not demonstrate jurisdictional error by the Tribunal or appellable error on the part of the primary judge.
The appellants’ second submission was (as written):
The tribunal failed to put any adverse information to me and made a decision to refuse my application and the tribunal fell into error to conclude that the medical documents did not support my claim. If the tribunal accepted the medical report then it was obliged to accept my fear of persecution and the harm I will face if I return to India.
The appellants confirmed that the complaint they wished to agitate in this submission was that the Tribunal failed to clarify why it did not accept evidence that the husband and father were bashed. They referred to the following evidence which had been considered by the Tribunal:
·a photograph of a man with both arms and one leg in plaster casts (at p 143 of the Appeal Book). They claim that this is a photograph of the husband’s father following the incident in December 2002 and that he sustained internal injuries from which he died. They did not provide medical evidence in relation to the internal injuries; and
·a document at p 192 of the Appeal Book, which appears to have been prepared for a court case and states that two of the father’s injuries on 22 December 2002 were classified as “grievous” and one as “simple”.
The appellants did not explain the meaning of “grievous” or “simple”, although I infer that in pointing out the reference to “grievous” injuries, the wife intended to demonstrate that the injuries were serious. However, another document submitted by the appellants in support of the husband’s visa application appears at p 83 of the Appeal Book. It appears to be a statement of a doctor to which the Tribunal refers at DR[27]. The doctor describes the father’s condition on 22 December 2002, when he was admitted to hospital. The report records a recommendation that the father receive x-rays and orthopaedic observation and that at the time of his admission the father was conscious, co-operative and well oriented as to time and place. The father’s injuries were described as:
·a lacerated wound measuring 2x1 cm on the front of the right leg in its upper third, bone deep, with fresh bleeding present, described as “grievous”;
·a “redish abrasion” measuring 7x1.5 cm on the front of the left knee, described as “simple”; and
·tenderness to his right wrist joint with no external mark of injury, described as “grievous”.
The Tribunal discussed this report with the husband, and that discussion is recorded in the Decision Record at [17]. Although the husband described the report as a “corrupt report”, the Tribunal noted that the husband agreed that it correctly recorded his injuries. The husband replied that the father’s injuries had been hidden and the doctor would have required an x-ray to diagnose them. The Tribunal also noted recorded injuries to the alleged assailant which cast doubt on the husband’s claim that he and his father had been unarmed. The weight to be accorded to this evidence in the evaluation of the husband’s claims was within the jurisdiction of the Tribunal. Having regard to the whole of the medical evidence provided to the Tribunal, in my view it was open to the Tribunal to both accept that the husband’s father had been injured in a brawl in December 2002 and to find that the medical reports were not consistent with either the claimed nature and seriousness of the injuries sustained by his father or the photograph. It was also open to the Tribunal to conclude that those injuries did not result in the father’s death two years later.
Although the appellants’ explanation of the second submission did not advert to s 424A of the Migration Act, out of a concern that the language used invoked a claim that the Tribunal had failed to comply with that section, the Minister’s representative submitted that s 424A has no application. I accept this submission for the reasons which the Minister’s representative gave:
·The medical reports were supplied by the appellants and fell within s 424A(3);
·In any event, the Decision Record at [27] discloses that the Tribunal put to the husband directly that his account of the incident in December 2002 is inconsistent with the documents submitted and it provided reasons for that view by reference to the details of those injuries as evidenced by the medical reports and the photograph; and
·The Tribunal’s thought processes in evaluating whether the medical reports support the appellants’ claims and any resulting finding are not “information” to which s 424A(1)(a) applies.
The appellants’ second submission and the second ground of their appeal are not made out.
The appellants’ third submission was (as written):
I believe that His Honour of the Federal Circuit Court agreed with the decision of the Tribunal and ignored my fear of persecution and failed to accept that the Tribunal’s decision is affected by error of law.
This submission aligns with the first ground of appeal. The appellants did not explain this submission. I accept the Minister’s submission that the appellants’ third submission and the appellants’ first ground of appeal are, in the absence of particulars, simply protests against the Tribunal’s failure to accept the husband’s claims and the outcome of their applications in both the Tribunal and the FCCA. They do not disclose error by either the Tribunal or the primary judge.
The appellants’ fourth submission was (as written):
I think that the Tribunal and His Honour of the Federal Circuit Court acted contrary to the evidence on file which appears in CB p.1-29 (Transcript) and acted contrary to the evidence on file in support of my claim.
I explained to the appellants that, like the primary judge, I would need to be taken to those parts of the transcript of the proceedings before the Tribunal on which they seek to rely. After a brief adjournment, the wife referred to those areas of the transcript in which the Tribunal discussed with the husband where he lived before the appellants left India. I granted leave to the parties to file brief supplementary submissions regarding potential errors in the fact-finding of the Tribunal having regard to the transcript and the legal consequences of any alleged error.
The appellants’ written submission referred to the transcript of the Tribunal proceedings set out at pages xxiii, xxiv and xxvi of the Appeal Book. I will also refer to oral submissions made at the hearing by the wife.
The appellants submitted that the Tribunal had been in error in what it said at DR[17] and DR[25]. Those paragraphs of the Decision Record are (as written):
17. The [husband’s] evidence was, in summary:
…
ŸBefore coming to Australia he was living in the home of his parents-in-law in [address]. In order to get away from the fighting they sold this house six to twelve months before he came to Australia and remained there for a short time before moving to rented accommodation elsewhere – he confirmed this was between late 2006 and 2007. Asked what fighting this was he said there were attacks by his uncle. Asked to clarify this he then said his uncle did not attach the house but attacked him and his father after his grandmother’s funeral in 2003. Asked why he was claiming that these attacks occurred in 2006 and 2007 he said his uncle owned shops about two kilometres distant from the house and the road to the house ran past the shops. There was always conflict when he passed by. Asked what he meant by conflict he said his uncle and cousins would always say something to him. His uncle kept a steel rod in the shop. Asked if anything else ever happened he said it did not – this was because there was a court case in process.
ŸAsked about his having moved from place to place he said he began to do so after his father died in September 2004. He was afraid of being attacked again. Asked what would have made him fear this he said they had already done it once. Had he known it was possible to leave he would have decided to do so previously. I noted he had never previously claimed to have lived at different addresses in India. He said he had mentioned it in the protection visa interview. Asked where he was living he said in Sikh temples.
25.… At the hearing the [husband] appeared to suggest that a reason for his ability to escape harm was that he was in hiding towards the latter part of the period. In the most recent submission it is claimed that he hid from the time of his father’s death in 2004, living part of the time in Hindu temples. This is, however, in conflict with his earlier evidence at the hearing to the effect that he had been living with his wife and parents-in-law until they sold their house, between six and twelve months before he left India, and that he and his wife then moved into rented accommodation.
They submitted that this error was repeated by the primary judge at J[4](c)(iv) and J[6] when he adopted a summary of the appellants’ claims and the findings of the Tribunal which had been prepared by the Minister’s representative.
In oral submissions, the wife pointed out that she and her husband had married in March 2007 (not long before they left India in December 2007) and that her husband certainly did not reside with her family before their marriage.
On a fair reading of the pages of the transcript identified by the appellants, it appears that the husband’s evidence was as summarised by the Tribunal save that, when asked what his address in India was, he told the Tribunal the same address as that set out in his visa application. He told the Tribunal that this was his family’s home which was in the name of his grandmother, it was sold six to 12 months before the appellants departed from India but the family continued to live there paying rent while they built a new home. I therefore accept that DR[25] and J[4] and J[6] are not an accurate reflection of the husband’s evidence insofar as it suggests that the husband resided with his parents-in-law until they sold their house six to 12 months before the appellants left India and the appellants then moved into rented accommodation.
Having said that, I accept the Minister’s submission that the Tribunal was entitled to find that the husband’s evidence as to his residence was in conflict with the evidence he later gave that he moved around after his father’s death in 2004 to avoid harm. That the Tribunal misidentified that address as his parents-in-law’s home does not impugn the Tribunal’s reasoning or the process in which it engaged. Having regard to this fact and the Tribunal’s other findings, the Tribunal’s reasons for affirming the delegate’s decision were cogent and available to the Tribunal on the evidence before it.
The factual error identified by the appellants is minor and was an error made within jurisdiction. It does not impair the fairness of the hearing before the Tribunal or its compliance with the requirements of the Migration Act. The primary judge was not taken to the paragraphs of the transcript referred to in the appellants’ submissions in this Court. The fact that the primary judge repeated the Tribunal’s minor factual error as part of a summary of the appellants’ claims and the Tribunal’s reasons for its decision is not a sufficient basis for this Court to make a finding of appellable error.
DISPOSITION
The appellants failed to demonstrate jurisdictional error by the Tribunal or appellable error by the primary judge. I will dismiss the appeal with costs.
COSTS
The Minister sought an order for costs pursuant to s 43(3)(d) of the Federal Court of Australia Act 1976 (Cth) fixed in the amount of $3,617.95. An affidavit affirmed by the solicitor for the Minister, Mikhail Glavac, on 27 October 2016 deposes that: (1) the Minister would be entitled to claim up to $6,439 for the costs and disbursements of the appeal under the short form bill of costs procedure prescribed under r 40.43(3)(b); and (2) based on the advice of Mr Zac Chami, a highly experienced lawyer in matters of this kind, the amount of $3,617.95 is the mid-point of what he believes the Minister would recover upon a taxation of costs. I will make the order as I am satisfied that a fixed cost order in that amount is appropriate and making a fixed costs order contributes to the efficient and cost effective disposition of this matter.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell. Associate:
Dated: 22 November 2016
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