SZUHF v Minister for Immigration and Border Protection

[2015] FCA 900

FEDERAL COURT OF AUSTRALIA

SZUHF v Minister for Immigration and Border Protection

[2015] FCA 900

Citation:	SZUHF v Minister for Immigration and Border Protection [2015] FCA 900
Appeal from:	SZUHF v Minister for Immigration & Anor [2015] FCCA 475
Parties:	SZUHF v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL
File number:	NSD 230 of 2015
Judge:	WIGNEY J
Date of judgment:	3 August 2015
Legislation:	Migration Act 1958 (Cth), ss 36(2)(a), 36(2)(aa), 91R, 476
Cases cited:	Minister for Immigration and Border Protection v Singh (2014) 139 ALD 50 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Date of hearing:	3 August 2015
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	32
Counsel for the Appellant:	The appellant appeared by telephone with the assistance of an interpreter.
Solicitor for the First Respondent:	Ms M Stone of DLA Piper Australia
Counsel for the Second Respondent:	The second respondent filed a submitting appearance save as to costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 230 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZUHF
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	WIGNEY J
DATE OF ORDER:	3 AUGUST 2015
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The name of the second respondent is to be amended to be the “Administrative Appeals Tribunal”.

2.The appeal be dismissed.

3.The appellant is to pay the costs of the first respondent as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 230 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZUHF
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	WIGNEY J
DATE:	3 AUGUST 2015
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

1. The appellant is a citizen of India. He arrived in Australia on 17 March 2011 on a tourist visa.  He had previously travelled to Australia on two occasions in 2008 and 2010, on each occasion on a tourist visa.  On 28 May 2013, he applied for a protection visa.  That visa application was first refused by a delegate of the first respondent, the Minister for Immigration and Border Protection (Minister) and then on review by the second respondent, then the Refugee Review Tribunal (Tribunal).  The appellant then sought judicial review of the Tribunal’s decision in the Federal Circuit Court of Australia, alleging jurisdictional error on the part of the Tribunal.  That application was dismissed on 24 February 2015.  The appellant now appeals from the judgment of the Federal Circuit Court.

   THE VISA APPLICATION AND THE TRIBUNAL’S DECISION

2. The appellant claimed that he was entitled to a protection visa essentially on the basis that he had for many years been a member of a social or religious organisation called Dera Sacha Sauda (DSS).  In 2007, when the appellant was still in India, DSS was accused of insulting the Sikh religion.  This led to sectarian violence between Sikhs and members of DSS in Northern India.  Many followers of DSS were killed or injured during this period of social unrest.

3. During this time, the appellant was working in a factory as a cutting master.  Many of his fellow workers were Sikhs.  He claimed that some of them became members of DSS and that the Sikh Youth Federation accused him of being responsible for this.  The appellant also claimed that the Sikh Youth Federation falsely accused him of involvement in violent activities, listed him as an enemy and threatened to kill him and his family.  According to the appellant, his family warned him to leave India, which he did with the assistance of his guru. 

4. The appellant claimed that the problems between Sikhs and DSS still existed in India and that members of the Sikh Youth Federation are still attacking DSS followers.  He maintained that, whilst in Australia, he had remained in contact with both his family and members of DSS and that he had been told that the Sikh Youth Federation was still actively looking for him.  He claimed that the government in India does not take the threats against members of DSS seriously and would afford him no protection if he had to return to India.

5. Unfortunately for the appellant, the Tribunal did not believe him.  The appellant gave evidence before the Tribunal and repeated the claims that had been the basis for his visa application.  The Tribunal did not, however, regard him as a credible witness.  It found that the appellant’s evidence regarding his involvement with DSS was vague, contradictory and so generalised that it could not accept it as credible.  The Tribunal also found that parts of the appellant’s evidence were implausible.  Overall, the Tribunal formed the opinion that the appellant was fabricating his evidence. 

6. In its reasons, the Tribunal gave a number of examples of evidence that it considered to be contradictory and implausible.  It is also apparent from the Tribunal’s reasons that, during the Tribunal hearing, the Tribunal member raised with the appellant difficulties she was having accepting parts of the appellant’s evidence and gave him the opportunity to respond.

7. The upshot of the Tribunal’s findings concerning the credibility of the appellant’s evidence was that the Tribunal was not satisfied that the appellant was ever a member of or involved with DSS, either in India or Australia, or that he had ever been threatened by the Sikh Youth Federation, or any other group in India, due to his involvement with DSS. As a result, the Tribunal was not satisfied that the appellant was a person in respect of whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees. Accordingly, the appellant did not satisfy the criterion for a protection visa set out in s 36(2)(a) of the Migration Act 1958 (Cth) (Act). The Tribunal also found that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to India, there is a real risk that he will suffer significant harm. Accordingly, the Tribunal was not satisfied that the appellant met the criterion for a protection visa as set out in s 36(2)(aa) of the Act. The Tribunal affirmed the decision of the delegate of the Minister to refuse the appellant’s application for a protection visa.

   THE FEDERAL CIRCUIT COURT PROCEEDINGS AND THE JUDGMENT OF THE PRIMARY JUDGE

8. The appellant was not represented in the Federal Circuit Court. His application for judicial review of the Tribunal’s decision, pursuant to s 476 of the Act, contained the following four grounds:

   Grounds of application

   1.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 that he was an active member of DSS.

   2.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.

   3.The Tribunal denied the applicant procedural fairness by reaching adverse conclusions 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. 

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

9. The primary judge rejected each of these grounds.

10. In relation to the first ground, the primary judge found that the Tribunal’s reasons revealed that it had correctly identified and addressed each of the appellant’s claims.  It just did not accept them.

11. Essentially the same finding was made in relation to the second ground.  The primary judge found that the Tribunal understood and dealt with each of the “integers” of the appellant’s claim. It was implicit in the Tribunal’s finding that the appellant had never been a member of DSS and that there was no risk that he will suffer harm if returned to India, that the Tribunal rejected any claim by the appellant that he had been under immense and intimidating pressure from the Sikh community.

12. As for the third ground, the primary judge noted that the appellant made no submissions in support of that ground at the hearing.  In any event, the primary judge rejected the contentions in ground three of the appellant’s application that the adverse findings made by the Tribunal were not obviously open to the Tribunal and that the Tribunal had not given the appellant the opportunity to be heard in relation to those findings.  The primary judge found that the findings made by the Tribunal were reasonably open to it on the material and that the Tribunal had raised with the appellant its concerns about aspects of the appellant’s evidence during the course of the hearing.  There was, therefore, no denial of procedural fairness.

13. In relation to ground four, the appellant’s submission before the primary judge was that the Tribunal had failed to consider documents in the Punjabi language that he had provided to the Tribunal.  The primary judge found, however, that there was no evidence that the appellant had provided any such documents to the Tribunal.  The appellant had provided a number of documents to the Tribunal.  Those documents that had been provided were both identified and considered in the Tribunal’s reasons.  The primary judge found that ground four otherwise did not disclose any basis for finding jurisdictional error on the part of the Tribunal.  It would appear to amount to nothing more than a complaint concerning the merits of the Tribunal’s findings.

    APPEAL GROUNDS AND SUBMISSIONS

14. The appellant appears not to have had the assistance of a lawyer in preparing his notice of appeal.  He appeared unrepresented at the hearing of the appeal, assisted by an interpreter.  It should also be noted that the hearing of the appeal was adjourned once on the appellant’s application due to an injury he sustained.  A second adjournment application, apparently based on the same injury, was refused on the basis that it was unsupported by acceptable evidence concerning any ongoing impairment that would prevent him from prosecuting his appeal.  He was, however, granted leave to appear by way of telephone.  He was assisted by a Punjabi interpreter.

15. The appellant’s notice of appeal contains the following three grounds of appeal.

    Grounds of appeal

    1.The Judge failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicants claim and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation.

    2.The Federal Circuit [Court] erred in accepting that the Tribunal view that the applicant will not face persecution if [he] returns to the country.

    3.The Federal Circuit Court erred in that the Tribunal member failed to consider all the material readily available and/or accessible and the member contained an erroneous to my claims and failed to address my mind to the material questions arising out of those materials.    

    CONSIDERATION OF APPEAL GROUNDS

16. The appellant did not file any written submissions.

17. In relation to ground 1, the first problem for the appellant is that it appears to raise an allegation that was not the subject of his application or submissions in the court below. The appellant did not contend in the court below that the Tribunal acted in a manifestly unreasonable way or failed to observe any obligation in terms of s 91R of the Act. The appellant did contend, in very general terms, that the Tribunal had failed to address his claims, or integers of his claims. The primary judge correctly rejected that contention. The Tribunal’s reasons show that the Tribunal fairly addressed all the appellant’s claims. It just did not accept them.

18. To the extent that ground one involves the contention that the Tribunal’s decision was legally unreasonable, in the sense explained in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and Minister for Immigration and Border Protection v Singh (2014) 139 ALD 50, it has no merit. The Tribunal’s decision turned on its rejection of key parts of the appellant’s evidence. As already explained, the Tribunal rejected much of the appellant’s evidence because it was vague, contradictory, generalised, and implausible. It found that the appellant was not a credible witness and had fabricated parts of his evidence. Those factual findings were open to the Tribunal and accordingly not open to challenge in judicial review proceedings under s 476 of the Act, which are limited to review of decisions on the basis of jurisdictional error. There is, in any event, no substance to the appellant’s contention that these findings were in any way unreasonable.

19. In his oral submissions in support of ground one, the appellant contended that the Tribunal did not pay careful attention to the documents that he had provided to the Tribunal.  He submitted that those documents should be “rechecked”.  He maintained that his refugee claims were genuine and that he did not lodge any false claims. 

20. The appellant’s claims that the Tribunal had failed to consider documents that he had provided to it were the subject of ground four of his application in the Federal Circuit Court.  The primary judge rejected the contention that the Tribunal had not considered all of the documents that the appellant had provided to it.  The documents that the appellant provided to the Tribunal are reproduced at pages 121 to 128 of the appeal book.  The Tribunal dealt with those documents in its reasons at paragraphs 9, 16 and 36.  There is no merit in the contention that the Tribunal did not give careful attention to those documents.  There was no evidence before the Federal Circuit Court that any additional documents in the Punjabi language or otherwise had been provided to the Tribunal. 

21. The primary judge was accordingly correct in rejecting the appellant’s contention that the Tribunal had not considered the documents that he had submitted to it.  Otherwise, the appellant’s submission that the documents should be “rechecked” would involve impermissible merits review by the court.

22. Appeal ground one has no merit and is rejected.

23. Appeal ground two appears to involve the contention that the primary judge erred in accepting the factual findings made by the Tribunal. This misconceives the nature of the Federal Circuit Court’s jurisdiction under s 476 of the Act which, as has already been said, is limited to providing relief in respect of jurisdictional error by the Tribunal. That jurisdiction does not involve reviewing the merits of the Tribunal’s decision or factual findings made by it. It was not for the primary judge to accept or reject the Tribunal’s factual findings.

24. The primary judge correctly exercised his jurisdiction under s 476 of the Act. His Honour considered, and ultimately rejected, all the appellant’s grounds and arguments that the Tribunal had erred in the exercise of its jurisdiction. The primary judge’s finding that the Tribunal made no jurisdictional error has not been shown to involve any error.

25. The appellant made no additional submissions in support of appeal ground two in his oral submissions to the court.

26. Appeal ground two has no merit and is rejected.

27. Appeal ground three appears to challenge the primary judge’s rejection of the appellant’s arguments that the Tribunal failed to consider all his claims or evidence and denied him procedural fairness.  He has, however, failed to explain why the primary judge’s findings in this regard involved error, let alone demonstrate any such error.   The primary judge’s findings that the Tribunal considered all the appellant’s claims, did not fail to consider any Punjabi documents (or any other documents) provided by the appellant and did not deny him procedural fairness were all correct for the reasons given by the primary judge. 

28. The appellant again did not advance any additional oral submissions in support of this ground of appeal.  He did, however, repeat his claim that his refugee claims were all genuine.  He urged the Court to re-examine the facts of his case.

29. It is not, however, for this Court to re-examine the facts of the appellant’s case.  The Court’s jurisdiction is limited to considering whether the Federal Circuit Court erred in dismissing the appellant’s judicial review application. 

30. The Tribunal’s reasons reveal that the Tribunal fairly considered the appellant’s claims and evidence and otherwise properly conducted its review.  No error, let alone jurisdictional error, on the part of the Tribunal has been shown.  No error on the part of the primary judge, in dealing with the appellant’s judicial review application, has been demonstrated.

    DISPOSITION

31. The application accordingly must be dismissed.  The appellant has not advanced any reason for why costs should not follow the event.  In the circumstances, it is appropriate to order that the appellant pay the Minister’s costs.

32. The orders of the Court are as follows:

    1.The name of the second respondent is to be amended to be the "Administrative Appeals Tribunal".

    2.The appeal be dismissed.

    3.The appellant is to pay the costs of the first respondent as agreed or assessed.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney.

Associate:

Dated:        20 August 2015