SZUHE v Minister for Immigration

[2015] FCCA 384

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUHE v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 384

Catchwords:
MIGRATION – Application for judicial review of decision of Refugee Review Tribunal (Tribunal) – whether the Tribunal failed to consider documents – whether the Tribunal gave no weight to documents without considering them – whether the Tribunal was obliged to consider if the applicant would suffer serious harm under s.91R(2) of the Migration Act 1958 (Cth) if the applicant were to relocate – whether the Tribunal denied the applicant procedural fairness – no jurisdictional error – application dismissed.

Legislation:  

Migration Act 1958 (Cth), s.91R(2)

Applicant: SZUHE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1178 of 2014

Judgment of: Judge Manousaridis

Hearing date: 18 February 2015

Delivered at: Sydney

Delivered on: 18 February 2015

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondents: Mr S Speirs of Clayton Utz

ORDERS

1. The application is dismissed.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1178 of 2014

SZUHE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction

1. Before the Court is an application for judicial review of a decision of the second respondent (Tribunal) which affirms the decision of a delegate of the first respondent not to grant the applicant a protection visa.  To appreciate the grounds on which the applicant relies it will be necessary to set out the applicant’s claims for protection and the Tribunal’s reasons for not accepting them.

The applicant’s claims

1. In his application for a protection visa which he lodged on 27 March 2013 the applicant says he left India (this occurred in 2008) after getting married and after he and his wife were granted student visas.  He said he came to Australia to complete his education and to be away from the fear of local groups who had intentions of harming him including taking his life.  He claimed that there were local gang fights in his home town and that he had been mistakenly targeted and threatened by “the killers” by which I infer the applicant meant gang members. The applicant further claimed that the gang members informed the applicant’s mother they will kill the applicant if he returned to India. 

2. With his application for a protection visa the applicant submitted a number of documents.  One is a document in Punjabi with an English translation which is described as a “First Information Report” apparently issued by the police in Phagwara, Kapurthala District (CB34-40). It reports an event that occurred on 29 February 2008.  The complainant bears a name that is different from the name of the applicant but the applicant’s name appears as one of six persons named under the heading “Details of Known/Suspect/Unknown accused with full particulars” (CB34).  Under the heading “F.I.R. contents” there is a description of a brawl between youths at a bus stand and the apprehension of a number of them by police. The report refers to a particular youth whom I will refer to as “Mr X” (Mr X) as being attacked but who was defending himself with a gun. 

3. A second document the applicant submitted with his application for a protection visa is what the Tribunal described as an “Undated English-language media report, apparently downloaded from the online version of the Punjab News” reporting the arrest of three persons on charges of having murdered a person who in these reasons I will identify as “Mr Y” (Mr Y).  A copy of the article is included in the Court Book at page 41.  The applicant submitted another three documents that purport to be media reports.

4. At an interview with the delegate on 29 July 2013 the applicant made additional allegations in support of his claim for protection.  These included the following alleged facts.  In India the applicant was involved in an incident when attending a religious festival in the village of a friend.  The applicant and five of his friends, while waiting for a bus, were attacked by another group of youths one of which held a gun. Two of the applicant’s friends were shot at and two others were beaten.  The youth with the gun then brought the police to search the applicant’s mother’s house when they tortured the applicant and took his motorcycle.  The following week the police took the applicant from his home.  They tortured him and threatened to bring false charges against him unless he paid the police money.  Two of the applicant’s friends who had been shot at the incident were killed after the applicant arrived in Australia because of rivalry and tension between groups.

5. Immediately after the applicant left India, the applicant’s mother was forced to live with her brother in a village 25 kilometres away from where she lived.  She has received telephone threats but she has suffered no harm.  The applicant’s friends have advised him against returning to India as he would definitely be harmed or killed by gang members. 

6. At the hearing before the Tribunal on 7 February 2014 the applicant submitted additional documents. One purported to be a translation of an article he claimed appeared in the Bhaskar News, Phagwara (CB102).  Another document was a translation of an article the applicant claimed appeared in the Daily Ajit, Jalandhar (CB100).  Both articles purport to report on the brawl that is described in the “First Information Report” the applicant provided with his application for a protection visa.  A third document the applicant provided was a death certificate of a person who I will refer to as “Mr Z”. A fourth document the applicant provided purported to be an English translation of a complaint the applicant’s mother made to the police in June 2009 (CB106).  That document complained that two persons had come to her house inquiring about her son and when she said that her son had gone abroad the two persons claimed the applicant’s mother was concealing him and they searched the applicant’s mother’s house.  A fifth document purports to be a “First Information Report” against Mr X under the Narcotic Drugs and Psychotropic Substances Act (CB119).

7. In addition to these documents, the applicant provided to the Tribunal an affidavit from his mother (CB104) and an affidavit from his aunt (CB103).  The affidavit from the applicant’s mother states that she resides in the house of her brother and that “some unknown/unscrupulous persons 2/3 times warned/threatened me” that they will kill the applicant if he returns to India.  At the hearing before the Tribunal the applicant gave further evidence of his claims.  The applicant said he left India for fear of his life because he was involved in a fight with Mr X who was involved in drugs and everyone was scared of Mr X.

8. The applicant said that Mr X tried to shoot the applicant because Mr X supported Akali Dal and was an enemy of Mr Y who supported the Congress Party.  That occurred when the applicant, Mr Y and others were returning from a fair when Mr X and his group arrived on a motorcycle and started beating the applicant’s group.  The applicant said that Mr X was jealous of Mr Y.  The applicant also said that the incident occurred in February 2008.  After the incident the applicant escaped to his uncle’s house and later reported the matter to the police.  Mr X and the police went to the applicant’s home and threatened his mother. 

9. From this rather detailed summary of the documents and evidence the applicant gave at the hearing before the Tribunal the applicant’s claim can be reduced to this:  in February 2008 the applicant, Mr Y and other friends of the applicant were attacked by a group of persons one of which was Mr X.  Mr X was jealous of Mr Y because Mr X supported Akali Dal whereas Mr Y supported the Congress Party.  After the attack the applicant feared for his life and went to his uncle’s house.  In the meantime, Mr X, with police, searched for the applicant at his mother’s house. 

Tribunal’s reasons

1. Although the Tribunal had doubts about the applicant’s account of the incident in February 2008 in which he claimed he and some friends were involved in violence with another group at a bus stop, it gave the applicant the benefit of the doubt and accepted the applicant was present during violence between two groups at this time.  The Tribunal, however, was not satisfied the incident had been the cause of continuing threat to the applicant. 

2. First, the Tribunal was not satisfied as to the credibility of the applicant’s claim that Mr Y was a Congress Party youth leader. Second, the Tribunal was not satisfied there was anything in the applicant’s description of the February 2008 incident that involved anything more than an unplanned clash between two groups of youths involving some general minor injuries.  Third, information the applicant submitted indicated that Mr X was named as a suspect in the investigation of the incident of February 2008 and that, further, Mr X was later arrested on a narcotics charge and is currently in prison.  That indicated that far from being in a position in which he could gain the cooperation of police Mr X was the target of the police and the courts. Therefore, the Tribunal was not satisfied as to the credibility of the applicant’s claims that police accompanied by Mr X raided his home.  Fourth, the Tribunal considered that the applicant’s delay in applying for a protection visa – some four and a half years after he entered Australia – cast further doubt on the applicant’s claimed fear he would be killed if he returns to India. 

3. The Tribunal, therefore, was not satisfied the applicant was ever targeted by a criminal named Mr X and it did not accept that the reason the applicant left India was because he feared he would be killed by some person or anyone associated with him. The Tribunal was not satisfied that Mr X or any person associated with him was pursuing the applicant in India including by coming to the applicant’s home and inquiring as to the applicant’s whereabouts.  The Tribunal also said it did not accept that the applicant faced any chance of harm from these sources should he return to India after an absence of five years. 

4. The Tribunal said it arrived at these conclusions having considered the documents said to have been written by the applicant’s mother and aunt.  The Tribunal said it could place no significant weight on the affidavits for two reasons.  First, it was not clear why the documents should have been produced four years after the event and should emerge before the Tribunal on the day of the hearing being one year after the applicant lodged his application for a protection visa. Second, the affidavits were repetitive and vague. 

Grounds of review

1. The application for review contained three grounds.  The first is as follows:

   The Tribunal constructively failed to exercise its jurisdiction;

   Particulars:

   I provided documents to the Tribunal to corroborate my claim.  The Tribunal failed to engage in an active intellectual process of these documents.  The Tribunal ultimately gave the documents no weight on the basis of credit findings.  It was an error for the Tribunal to place no weight on the documents without engaging to the contents of these documents.  It was an error for the Tribunal to assess . . . my credit without first assessing whether the substance of the documents corroborated my claim.

2. The particulars to this ground contain three distinct submissions.  The first is that the Tribunal failed to engage in an active intellectual process in relation to the documents.  Apart from one document, about which I will say something in a moment, there is no substance to this contention.  The Tribunal identified and described the documents in its reasons.  It asked the applicant questions by reference to some of the documents and the Tribunal, in fact, relied on some of the documents in concluding that it was not satisfied as to the credibility of the essential elements of the applicant’s claims. In particular, as I have already observed, the Tribunal relied on the documents that described the incident of February 2008 to conclude that the incident was nothing more than an unplanned clash between two groups of youths involving some generally minor injuries.  And the Tribunal relied on the “First Information Report” and the document recording Mr X being charged with a narcotics offence as a reason for not being satisfied as to the credibility of the applicant’s claim that Mr X accompanied the police’s raid of the applicant’s home.

3. The document to which what I have just said does not apply is the document which records a complaint made by the applicant’s mother to police in June 2009.  The Tribunal does not expressly refer to this document other than identifying it. The information contained in that report, however, is in substance the same as the information contained in the affidavits that were made by the applicant’s mother and the applicant’s aunt.  As I have already noted, the Tribunal gave no weight to those affidavits for two reasons, one of which was the unexplained late production and their vagueness and repetitiveness. 

4. It is a fair inference that what the Tribunal said in relation to those affidavits it also had in mind in relation to the document that records the complaint made by the applicant’s mother to the police.  In any event, even though the Tribunal did not specifically refer to this document I am not satisfied that the Tribunal did not intellectually engage with that document, again, because the document contains, in substance, the same information as is contained in the affidavits.

5. If I return now to ground 1 again, and the particulars to that ground, the second submission that is made in the particulars is that the Tribunal gave the documents no weight.  That is true only of the affidavits given by the applicant’s mother and his aunt and the complaint made by his mother to the police.  The Tribunal, however, gave weight to the other documents at least to the extent the Tribunal considered them to be relevant.  In particular, the Tribunal gave credit to and relied on the “First Information Report”, the newspaper report that described the incident in the “First Information Report”, and the document recording Mr X as being charged with narcotics offences.

6. The third submission made in the particulars is that the Tribunal gave the documents no weight “on the basis of credit findings”.  That is not correct.  The only documents to which the Tribunal, in effect, gave no weight, at least expressly, are the affidavits made by the applicant’s mother and aunt.  The Tribunal gave no weight to the affidavits, however, not because it had already made an adverse credit finding against the applicant but because the affidavits were repetitive and vague and because, without any explanation, the affidavits were made some four years after the events they purport to refer to and they were not provided to the Tribunal until the day of the hearing, one year after the applicant lodged his application for a protection visa.  These were matters on which it was reasonably open to the Tribunal to rely to conclude it was not satisfied it could place any significant weight on the affidavits.

7. At the hearing before me the applicant, who was not legally represented, made only one submission in relation to ground 1.  He submitted that all the documents he submitted to the Tribunal were genuine, they were not fake, and the Tribunal placed no weight on them.  It is true that in the last dot point of its reasons at CB133 the Tribunal informed the applicant there is information indicating that false or fraudulent documents are readily available in India, suggesting that the Tribunal could not place any weight on the affidavits.  The Tribunal, however, did not find that the affidavits or any other documents the applicant submitted were not genuine.  As I have already stated, the Tribunal gave no weight to the affidavits because they were repetitive and vague and also because they were prepared four years after the events they purport to record and were first produced to the Tribunal one year after the applicant lodged his application for a protection visa. 

8. For all these reasons I conclude that ground 1 fails.

9. The second ground of review is as follows:

   The Tribunal failed to consider properly the test whether the applicant would suffer serious harm as per sec.91R(2)(a) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do), if he asked to relocate to India.  The Tribunal failure to satisfy the statutory obligation was a serious jurisdictional error caused by the Tribunal.

10. The first respondent (Minister) in his written submissions has read this ground as claiming the Tribunal failed to consider whether the applicant were to suffer serious harm within the meaning of section 91R(2) of the Migration Act 1958 (Cth) (Act) if he were to relocate within India. That is not how I interpret this ground. The ground, as I read it, is that the Tribunal failed to consider whether the applicant will suffer serious harm within the meaning of section 91R(2) of the Act if he were to return to India. However, it appears that the Minister’s interpretation is the correct one. The only submission the applicant made at the hearing in relation to this ground is that he has mental stress and it is impossible to relocate elsewhere in India.

11. Whichever way ground 2 is interpreted, it cannot be made out.  The relocation principle falls to be considered only if a decision-maker is satisfied a visa applicant has a well-founded fear of persecution for a Convention reason.  The Tribunal in this case was not so satisfied.  The occasion for its considering the relocation principle therefore did not arise, and the Tribunal did not consider whether it was reasonably practicable for the applicant to relocate within India.  It was therefore not necessary for the Tribunal to consider whether the applicant would suffer serious harm if he were to relocate in India.

12. What is clear is that the Tribunal did consider whether the applicant would suffer serious harm.  It did so by considering whether the applicant was involved in the incident at the bus stop and whether, as the applicant claimed, Mr X, together with the police, raided the applicant’s home and communicated threats to his mother that the applicant would be harmed.  The Tribunal accepted the applicant was involved in the incident, but did not accept that threats had been made as claimed by the applicant.  On the basis of those findings, the Tribunal was not satisfied that Mr X or any person associated with him was pursuing the applicant in India, including by coming to the applicant’s home and inquiring as to the applicant’s whereabouts.  And the Tribunal did not accept that the applicant faced any chance of harm from these sources should he return to India. 

13. Ground 2 therefore also fails.

14. The third ground of review is as follows:

    The Tribunal denied . . . me procedural fairness by reaching adverse conclusions that certain aspects of my claim were implausible, being conclusions that were not obviously open on the known material, without giving me the opportunity to be heard in respect of those matters.

15. The applicant made no submissions in relation to ground 3 at the hearing before me. 

16. This ground appears to contain two submissions.  The first is that the Tribunal’s conclusions that certain aspects of the applicant’s claims were implausible were not obviously open on the material.  I do not accept that submission.  At paragraph 19 of its reasons the Tribunal identified the aspects of the applicant’s claims it was not satisfied were credible and identified the material on which it relied and gave reasons for its not being so satisfied.  It was reasonably open to the Tribunal to rely on those materials and those reasons in concluding, as it did, that it was not satisfied as to the credibility of the relevant elements of the applicant’s claims.

1. The second submission contained in ground 3 is that the Tribunal did not give the applicant notice of the matters on which the Tribunal ultimately relied in not accepting the applicant’s claims.  That submission is not correct.  Paragraph 19 of the Tribunal’s reasons for decision records that the Tribunal put to the applicant each of its concerns on the basis of which the Tribunal ultimately relied in not being satisfied as to the credibility of the essential elements of the applicant’s claims. 

2. Ground 3 therefore also fails. 

3. Because the applicant has failed in all of the grounds of review, I propose to dismiss the application and order that the applicant pay the Minister’s costs.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  24 February 2015