SZUMH v Minister for Immigration

[2015] FCCA 1258

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUMH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1258

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal – application to show cause – whether application shows an arguable case for the relief claimed – no arguable case shown – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa)

Federal Circuit Court Rules 2001 (Cth), rr.44.12(1)(a), 44.13(1)

Applicant: SZUMH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1546 of 2014

Judgment of: Judge Manousaridis

Hearing date: 28 April 2015

Date of Last Submission: 21 April 2015

Delivered at: Sydney

Delivered on: 15 May 2015

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondents:

Mr L Dennis of

Sparke Helmore

ORDERS

1. Pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1546 of 2014

SZUMH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The first respondent (Minister) moves for an order under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Rules) that the application commencing these proceedings be dismissed because the application does not raise an arguable claim for the relief it seeks. By that application the applicant applies to set aside a decision of the second respondent (Tribunal) which affirmed the decision of a delegate of the first respondent not to grant the applicant a protection visa.

Applicant’s claims for protection

1. The applicant, who is not legally represented, is a national of India, and a Hindu by religion. In his application for a protection visa, the applicant claimed he came from a highly fundamental and conservative Hindu family who were active members of the Bharatiya Janatha Party (BJP).[1]  He grew up in an area where Muslims were the majority.[2]

   [1] CB73, [5]

   [2] CB74, [5]

2. As a student, the applicant became a member of the “ABVP (most popular party student federation)”. His activities in the ABVP came to the attention of the Muslim Student Federation who informed their Muslim fundamentalist leaders. The applicant was warned to leave ABVP otherwise his life would be in danger. That only encouraged the applicant to work strongly for the ABVP, and then to join the BJP.[3]

   [3] CB74, [5]

3. After a municipal conference, there was unrest during which a group of Muslim youths came to the applicant’s house where they abused his wife and parents, threw stones, broke the window glass, and banged on doors. On the same day, the Muslim youth targeted and attacked the houses and businesses of BJP members. The applicant’s family’s grocery business was destroyed during that unrest. The applicant lodged a complaint with the police, and there were presently more than 250 cases pending in connection with the unrest; but the fundamentalists lodged a complaint against the applicant with the intention of compromising the criminal cases brought against them.[4]

   [4] CB74, [5]

4. The applicant then went to a neighbouring state. After one week, he was discovered there and attacked. He was hospitalised for ten days. On being discharged, the applicant returned to his area. Fearing harm from Muslim fundamentalists, the applicant left India and came to Australia.

The Tribunal’s reasons

1. The Tribunal considered the applicant “gave vague, confusing, contradictory and changing evidence throughout the process about his background, his political work, details of events and who sought to harm him”.[5] It found that the applicant was “not a witness of truth, and that he has fabricated his claims for the purposes of obtaining a protection visa”.[6] The Tribunal based these adverse findings on a number of matters, including the following.

   [5] CB77, [20]

   [6] CB84, [57]

2. First, the applicant, in his application for a protection visa, said he had been attacked after he left his home area, yet before the Tribunal he said he was attacked on two occasions – once in December 2009 and once in December 2010.[7]

   [7] CB77, [21]

3. Second, the applicant gave inconsistent evidence in relation to the family grocery business. In his application for a protection visa, the applicant claimed the business had been destroyed by the Muslim youths. Before the Tribunal, on the other hand, the applicant said he had worked in the business for a period after the date on which the applicant had claimed the business had been destroyed. The Tribunal summarised this part of the applicant’s evidence as follows:[8]

   When the Tribunal asked how he could have worked there until October 2012 if the shop finished in 2010, he did not provide a direct response to that question. Later, when the Tribunal raised this difference in evidence as an issue, the applicant did not provide a direct response, he just repeated that he worked at the shop until it was destroyed.

   [8] CB78, [26]

4. Third, the applicant gave inconsistent evidence about where he stayed in the neighbouring State, and about the circumstances in which he was assaulted. In his application for a protection visa, the applicant claimed he stayed in the neighbouring State for one week; he met someone there who informed the fundamentalist leaders who sent gangs to kill him; and a gang cruelly attacked him and put him in a drainage ditch.[9] At his interview before the delegate, however, the applicant said he was in hiding at a secret address and that, when he was leaving the residence, he was hit on the head and fell unconscious, and he did not know who attacked him.[10]

   [9] CB79, [32]

   [10] CB79, [33]

5. Fourth, the Tribunal did not consider credible that the applicant, as he claimed, would return to his home and remain there for twenty months before leaving the area if, in truth, he had a genuine fear of harm from Muslim groups. That indicated the applicant did not have any genuine fear.[11]

   [11] CB80, [34]

6. Fifth, the applicant gave inconsistent evidence about criminal cases having been brought against him. In his application for a protection visa, the applicant said that a charge had been brought against him by fundamentalists with the intention of compromising the criminal cases against them. Before the Tribunal, however, the applicant said no criminal case had been brought against him. When this inconsistency was put to the applicant, the applicant further changed his evidence to say that because of corruption, and the influence of the Muslims, the police did not lodge 250 cases.[12]

   [12] CB81, [40]

7. Sixth, the Tribunal found the applicant’s claims and evidence concerning his political involvement was vague, confusing, contradictory to the country information, and changing. The applicant was unable to say what “ABVP” stands for.[13] Additionally, when the Tribunal asked the applicant to write down what the initials BJP stand for, the applicant wrote “Bharathiya Janatha Party”, which coincides with the spelling set out in a letter the applicant submitted purportedly from the BJP Committee. However, the correct spelling of BJP, according to country information, is slightly different.[14] The Tribunal summarised this part of the applicant’s evidence as follows:[15]

   The Tribunal informed the applicant that it had to make up its own mind about the letter, and asked him why he thought the letter he had produced had the same (apparently incorrect spelling), as the spelling he had given to the Tribunal. He said he made a mistake when he spelt the name for the Tribunal, and he just used to call the organisation “BJP”, not by its full name. He did not answer the Tribunal’s query as to why the same spelling was found on the letter.

   [13] CB82, [44]

   [14] CB82, [45]

   [15] CB82, [45]

8. Seventh, the applicant gave conflicting and vague descriptions of the people he claimed attacked him. The Tribunal noted that in his application for a protection visa the applicant referred to the Muslim League and the Muslim Students Federation. Before the delegate, however, when asked who had attacked him the applicant first said it was Muslim people, when asked to be more specific he said it was the terrorist wing of the Muslim community and, when asked to identify who these people were, he said it was the NDF.[16] Before the Tribunal, when asked who the applicant said threatened him back in India, he said the Muslim League. When asked to be more specific, he said the NDF.[17] He did not mention, however, the Muslim Students Federation.

   [16] CB83, [48]

   [17] CB83, [49]

9. Because the Tribunal did not accept the applicant as a witness of truth, it did not accept the applicant had any political or religious involvement in any organisations in India; or that the applicant had been threatened or harmed, or that he had come to the adverse attention of any Muslim organisations, or that his family’s grocery business had been destroyed or adversely affected, or that the applicant’s family had been threatened or harmed; or that the applicant lodged any cases or had any cases lodged against him or that the authorities would not provide protection to the applicant, or that the applicant had fled his home area to seek safety. The Tribunal was not satisfied the applicant will seek to have any political or religious involvement in India in the future, or that he will express any views publicly or privately that would attract adverse attention concerning political or religious matters.[18]

   [18] CB84-85, [58]

10. The Tribunal also considered country information that suggested there was communal unrest and violence between the BJP and the Communist Party of India (Marxist) and the Indian Union Muslim League. On the basis of that country information, the Tribunal accepted there was a riot in October 2011 as the applicant claimed. The Tribunal found, however, that country information indicated police responded and claims were lodged against the people who allegedly caused harm. The Tribunal also found, although there was periodic violence in the applicant’s home town, that the applicant did not have any real concern about general violence because the applicant and his family remained living in the area.[19]

    [19] CB85,[59]-[60]

11. For all of those reasons, the Tribunal concluded the applicant did not satisfy s.36(2)(a) or s.36(2)(aa) of the Migration Act 1958 (Cth) (Act).

Grounds of review

1. The application for review contains five grounds. The first is:

   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.

2. The applicant, who is not legally represented, made no submissions at the hearing in support of or in relation to this ground.

3. The ground raises no arguable case for the relief the application seeks. The ground does not identify the aspects of the claims it is alleged the Tribunal found implausible, the adverse conclusions it is said the Tribunal made, and the respects in which the Tribunal denied procedural fairness to the applicant in reaching those conclusions. There is nothing in the Tribunal’s reasons that suggests the applicant was not given notice of the matters on which the Tribunal relied for making adverse findings about the applicant’s credit.

4. The second ground of review is:

   The Tribunal’s decision was unjust and made without taking into account the full gravity of applicant [sic] circumstances and consequences of claims. The Tribunal did not consider the applicant who had been under immense and intimidating pressure from Muslims.

5. The applicant made no submissions in relation to this ground.

6. The ground raises no arguable case for relief. The reasons of the Tribunal demonstrate that the Tribunal identified and sought to understand and did understand the claims the applicant made, and considered those claims and the evidence the applicant gave before it.

7. The third ground of review is:

   The tribunal had no jurisdiction to make the said decision because its ‘reasonable satisfaction’ was not arrived [at] in accordance with the provisions of the Migration Act.

8. This ground raises no arguable case for relief. It asserts a legal conclusion without identifying any factual premises upon which the ground could arguably be made.

9. The applicant, when invited to make submissions in relation to this ground, made a submission about an entirely unrelated matter. He asserted that what he said before the Tribunal was not interpreted properly. The applicant, however, did not raise any such issue before the Tribunal, and he could not recall which parts of his evidence was not properly interpreted. Also, when I asked him how the applicant knew what he said was not properly stated, the applicant said he only “sensed it”. The applicant also asserted that he said that he felt he could not express what he wanted to say. He did not, however, mention to the Tribunal that he had any such difficulty.

10. The Minister submitted that these assertions are irrelevant because they are not included in the application and, under r.44.13(1) of the Rules, the applicant is confined to the relief sought and the grounds mentioned in the application. That is true. That, however, would not necessarily be fatal had the applicant’s assertions themselves raised an arguable case. But the applicant’s assertions do not raise an arguable case. The applicant was incapable of identifying which part of his evidence was not interpreted correctly and, in any event, the applicant did not raise with the Tribunal any issue relating to interpretation. Nor did the applicant raise with the Tribunal difficulties in expressing himself.

11. The fourth ground of review is:

    The applicant satisfy [sic] the key elements of Convention definition as detailed in page 16, 17 and 18 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error

12. The only submission the applicant made in relation to this ground is that the Tribunal’s decision is not fair or correct.

13. The fourth ground does not raise any arguable case for relief. To the extent it claims the applicant satisfies the criteria for protection under s.36(2)(a) or s.36(2)(aa) of the Act, the ground impermissibly seeks merits review. To the extent the ground claims the Tribunal did not consider whether he satisfied the criteria specified in those subsections, that is unarguable. The Tribunal considered the applicant’s claims and did not accept them because it did not accept the applicant was a witness of truth.

14. The fifth ground of review is:

    The Tribunal failed to investigate applicant claim [sic], specially the grounds of persecution in India. Therefore, the Tribunal decision dated 13 May 2014 was effected [sic] by actual bias constituting judicial [sic] error

15. The applicant made no submission in relation to this ground, other than to say that he stood by it.

16. To the extent the ground claims the Tribunal was bound to undertake investigations of its own into the applicant’s claims, the ground is not arguable. To the extent the ground claims the Tribunal did not consider the applicant’s claims of persecution, that claim, too, is not arguable because it is clear from the Tribunal’s reasons that it did consider the applicant’s claims. And the claim of actual bias also is not arguable first, because the premise on which that claim is made is not arguable and, second, because even if the Tribunal had failed to consider the applicant’s claims, it would not be arguable on the basis of that fact alone that the Tribunal was actually biased.

Conclusions and disposition

1. None of the grounds raised by the application for review raises an arguable case for the relief the applicant seeks. I propose, therefore, 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:  15 May 2015