SZUHF v Minister for Immigration

[2015] FCCA 475

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUHF v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 475

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal (Tribunal) – whether the Tribunal considered the applicant’s claims for a protection visa – whether the applicant was denied procedural fairness – whether the Tribunal considered the material before it – no jurisdictional error – application dismissed.

Applicant: SZUHF

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1185 of 2014

Judgment of: Judge Manousaridis

Hearing date: 24 February 2015

Delivered at: Sydney

Delivered on: 24 February 2015

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondents: Ms M Stone of DLA Piper Australia

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $4,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 1185 of 2014

SZUHF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant, a national of India, applies for judicial review of a decision made by the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a protection visa.  .

2. The alleged facts on which the applicant relied before the Tribunal for a protection visa are as follows.[1] Around 30 years ago, the applicant became a member of Dera Sacha Sauda (DSS).  DSS is a “social-spiritual organisation” that preaches and practises humanitarianism and service to others.  In 2007, DSS was accused of insulting Sikhism.  That gave rise to a serious law and order problem in various parts of Northern India.  Many DSS followers were killed and thousands were injured in sectarian violence.  The applicant was a cutting master, and many of his fellow workers were Sikh.  Some became members of the DSS.  The applicant was consequently accused of converting those Sikhs into the DSS and, was listed by the Sikh Youth Federation as a main enemy.  The Sikh Youth Federation threatened to kill the applicant and accused him of orchestrating violence in the area in which he lived.  The applicant fled India because he feared harm from Sikhs because of his involvement with the DSS.

   [1] CB113, [4]

3. The Tribunal was not satisfied the applicant was a member of DSS or was involved with the DSS, either in India or in Australia.[2]  The Tribunal found the applicant’s evidence regarding his involvement with DSS to be vague, contradictory and so “generalised that it could not accept it as credible”.[3]  The Tribunal also found that the applicant was not a credible witness.[4]  The Tribunal found the applicant provided vague and inconclusive evidence, appeared to contradict himself, and provided implausible evidence to the Tribunal.[5] 

   [2] CB117, [29]

   [3] CB117, [29]

   [4] CB118, [34]

   [5] CB118, [34]

4. The applicant, who is not legally represented, has listed four grounds of review in his application.  The first is:

   The Second Respondent committed jurisdictional error by failing to address the applicant’s claims in the way it was made;

   (a) The applicant stated in his protection visa he was an active member of DSS.

5. At the hearing the applicant made no submission in support of ground 1.

6. There is no substance to this ground.  The Tribunal correctly identified the applicant’s claims.  Its reasons record the Tribunal methodically asked the applicant questions in relation to his claim, and it made the findings to which I have already referred.  For each of its findings, namely, that the applicant’s evidence was vague, contradictory and generalised, and that he gave implausible evidence, the Tribunal gave specific examples.  It was reasonably open to the Tribunal to rely on each of those examples to make the findings it made in relation to the applicant’s claims for protection.

7. The second ground of review is as follows:

   The Tribunal constructively failed to exercise its jurisdiction as it did not address all integers of Applicant’s claims;

   (a) The Tribunal did not consider the applicant who had been under immense and intimidating pressure from Sikh community.

8. The only submission the applicant made at the hearing before me was that he wore an identification locket which indicated he was a member of DSS.  He informed me he did not present that to the Tribunal.  Later, in reply to the Minister’s submission that the Tribunal could not be held to have made an error by failing to refer to evidence that was not before it, the applicant said he had lost the locket. 

9. That the applicant may now hold evidence of his membership of DSS does not disclose any jurisdictional error by the Tribunal. 

10. Returning to the ground stated in the application, there is no substance to ground 2.  For the reasons I have already given, the Tribunal understood and dealt with all integers of the applicant’s claim.  Further, having found the applicant was not a credible witness, it was not obliged to consider the applicant’s claims on the basis that he had been under immense and intimidating pressure from the Sikh community. 

11. The applicant’s third ground is as follows:

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

12. The applicant made no submissions before me in relation to ground 3. 

13. Ground 3 contains two submissions.  The first is that the Tribunal reached conclusions adverse to the applicant that were not open on the material before the Tribunal.  The second is that the Tribunal did not give the applicant an opportunity to be heard on the matters on which the Tribunal made adverse findings against the applicant. 

1. As to the first of the two submissions, the adverse findings the Tribunal made against the applicant were reasonably open to the Tribunal on the material that was before it.  The Tribunal identified evidence of the applicant it considered to be vague, contradictory or implausible.  An example of vague evidence to which the Tribunal referred was the applicant’s not being able to identify the persons he claimed had been introduced to speak when he was the Stage Manager for DSS.  An example of contradictory evidence the Tribunal identified was the applicant stating that he had weekly and monthly meetings with DSS.  And an example of implausible evidence the Tribunal identified was the applicant’s evidence that he was financially supported in Australia by friends and a housemate.

2. As to the second submission, the Tribunal’s reasons for decision show the Tribunal did raise its concerns with the applicant.  The Tribunal informed the applicant it was having difficulty accepting that the applicant was at all involved with DSS.  The Tribunal informed the applicant it had difficulty accepting the applicant or any of his family members had been threatened as the applicant had claimed.  The Tribunal informed the applicant that his having travelled to Australia on three occasions and having returned to India on two occasions undermined the applicant’s claimed fear for his life if he returned to India.  The Tribunal also raised its concerns at the applicant’s delay in applying for a protection visa.  And, finally, the Tribunal informed the applicant that his evidence about how he had financially survived in Australia was very vague and his evidence in that regard suggested that the applicant was not being truthful about his financial circumstances during the last three years. 

3. Ground 3, therefore, also fails.

4. The fourth ground of review is as follows:

   The Tribunal’s decision was unjust and made without taking into account the full gravity of applicant’s circumstances and consequences of claims.

5. A claim that a decision is unjust does not disclose any recognised ground of jurisdictional error.  Otherwise, ground 4 claims the Tribunal did not consider the applicant’s claims.  For the reasons I have already given, the Tribunal did consider the applicant’s claims. 

6. Before me the applicant did make a submission in relation to ground 4.  The applicant submitted that the Tribunal failed to consider documents he had submitted in the Punjabi language.  The applicant said that the documents the Tribunal failed to consider were not in the Court Book; they were at his home.

7. There is nothing in the evidence before me that suggests that applicant provided to the Tribunal documents in the Punjabi language.  The applicant did provide documents to the Tribunal.  The Tribunal identified these in its reasons for decision.  A copy of the documents is in the Court Book.  The documents include screenshots of YouTube clips, and newspaper and internet articles. 

8. The Tribunal referred to the documents in a number of places in its reasons for decision.  First, it referred to the documents at paragraph 9 of its reasons where the Tribunal notes it had asked the applicant whether any of the persons referred to in the newspaper or internet articles the applicant provided were introduced by the applicant when he acted as Stage Secretary for DSS. Second, the Tribunal refers to the documents in paragraph 16 of its reasons where it notes the evidence that the applicant gave about when he started experiencing difficulties with Sikhs.  It was contradicted by the newspaper and internet articles the applicant provided.  And, finally, the Tribunal referred to the documents at paragraph 36 of its reasons where the Tribunal said:

   In relation to the contradictory evidence, the Tribunal finds that the country of origin information supplied by the applicant referred to unrest regarding Dera Sacha Sauda followers and clashes with Sikh groups in 2007, however, during the hearing the applicant stated that the unrest occurred on 13 April 2004 or 2005.

9. Thus, the Tribunal did consider such documents as the applicant provided to the Tribunal in support of his claims. 

1. Given I have found all grounds of review have failed, I propose to order that the application be dismissed and that the applicant pay the first respondent’s costs.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  3 March 2015