SZUMJ v Minister for Immigration
[2017] FCCA 1589
•13 July 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUMJ v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1589 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for a protection visa – applicant asserted that Administrative Appeals Tribunal did not consider all his claims and that its decision was thereby affected by jurisdictional error – Tribunal did consider all claims – no jurisdictional error – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 414 Migration Regulations 1994 (Cth) |
| Cases cited: HTUN v Minister for Immigration (2001) 233 FCR 136 SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 |
| Applicant: | SZUMJ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1561 of 2014 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 10 October 2016 |
| Delivered at: | Sydney |
| Delivered on: | 13 July 2017 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr T Hillyard |
| Solicitors for the Respondents: | Sparke Helmore |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 10 June 2014 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1561 of 2014
| SZUMJ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a male citizen of India aged 33 years, having been born on 14 May 1984.
By Application filed in this Court on 10 June 2014 he seeks to quash and have redetermined a decision of the Second Respondent, the Administrative Appeals Tribunal (at the time of decision the Refugee Review Tribunal) (Tribunal) dated 14 May 2014 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 20 February 2013 refusing to grant to him a Protection (Class XA) visa (Protection visa).
The Applicant arrived in Australia (using his Republic of India passport) on 11 June 2012 on a Business (Short Stay) (Subclass 456) visa (Business visa) which expired on 11 July 2012. The Applicant then became an unlawful non-citizen until he was issued a Bridging Visa C in association with the lodging of the Protection visa application the subject of this proceeding.
Claims for Protection
In his Statutory Declaration of 16 July 2012 (Statutory Declaration) which formed part of his Protection visa application the Applicant made the following factual claims:
a)He was born in a small village called Melattur in Thanjore District in the State of Tamilnadu, India, and was born into a class of persons in India known as the Pallar Caste or Dalits or, in English, Untouchables.
b)There are nearly 170,000,000 Dalits in India.
c)Dalits are discriminated against and denied access to land and basic resources and forced to work in degrading conditions and routinely abused at the hands of police and the dominant Caste groups.
d)Though untouchability was abolished under the Indian Constitution in 1950 it is still prevalent in rural India.
e)The Applicant’s father was a member of the Puthiya Tamilagam Party and worked as a cobbler to provide for the Applicant whilst he was studying. This political involvement resulted in his father losing his job and prospects for work, and as his mother could not provide enough financial support the Applicant had to leave school to undertake cobbling to support his family and himself.
f)On 23 July 1999 the District Secretary of the Communist Party of India (Marxist), Mr V Palani, and the Applicant’s father were involved in a massacre where 17 persons lost their lives following a brutal police attack on a labour struggle procession. Mr Palani suffered serious head injuries and became unconscious. The Applicant’s father, who was also injured in the attack, took Mr Palani to the hospital. However, when his father returned home, after a period of time, he died on 3 September 1999. The Applicant blamed the police and the Indian Government for his father’s death.
g)Then in 2011 his uncle was killed by police with 6 other Dalits. The Applicant ran away to escape the police but was brutally attacked and since that attack he has been afraid of the police and started to hide from them; he said that he was afraid to return to India as he may be arrested at any time and as a Dalit he would not be able to live a normal peaceful life.
h)He became a full time activist of the Viduthalai Siruthaigal Party and worked for the Party.
Relevant Criteria and Law Applicable to Protection Visa Applications
A convenient summary of the grounds and criteria for the grant of a Protection visa can be found in the judgment of Wigney J in SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 at [5]-[7] as follows:
[5]The criteria for the grant of a protection visa are well known. At the time the appellant applied for a protection visa, s 36(2)(a) of the Migration Act 1958(Cth) provided that a criterion for a protection visa was that the appellant was a non-citizen in Australia in respect of whom the Minister was satisfied Australia had protection obligations under the Refugees Convention. In simple terms, Australia has protection obligations under the Refugees Convention in respect of a person who is outside their country of origin and who is unable or unwilling to avail themselves of the protection of that country, or to return there, on account of them having a well-founded fear of persecution based on reasons of race, religion, nationality, membership of a particular social group, or political opinion.
[6]Section 36(2)(aa) of the Act provided an alternative criterion known generally as the complementary protection criterion. A person met the complementary protection criterion if the Minister was satisfied that Australia had protection obligations because the Minister had substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there was a real risk that the non-citizen would suffer significant harm.
[7]The remaining subsections of s 36 and subdivision AL of the Act contained additional provisions about protection visas, including provisions that defined or explained various expressions used in s 36(2)(a) and (aa), such as “significant harm” and “persecution”.
Decision of Delegate
The Applicant attended an interview with the Delegate on 11 October 2012. Although he reads, writes and speaks Tamil and English, he was assisted by a Tamil interpreter.
In the result the Delegate found that significant elements of the Applicant’s testimony were vague, contradictory and inconsistency and this raised doubts on the credibility of his claims for protection in Australia.
The Delegate ultimately came to the view that the Applicant had exaggerated his story with the sole purpose of creating a Refugees Convention based persecution to seek protection in Australia and refused to grant to the Applicant a Protection visa because she was not satisfied that Australia had protection obligations to him under s.36 of the Migration Act 1958 (Cth) (the Act) and cl.866.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
Decision of Tribunal
The Applicant applied to the Tribunal on 13 March 2013 for a merits review of the Delegate’s decision.
On 11 July 2013 the Applicant appeared before the Tribunal to give evidence and present arguments with the assistance of an interpreter in the Tamil and English languages.
At [19] of its Decision Record the Tribunal identified the credibility of the Applicant to be the issue in the review.
At [21] of its Decision Record the Tribunal stated that there were numerous inconsistencies and differences in the claims made by the Applicant in his Protection visa application and at the Tribunal hearing.
At [22] the Tribunal accepted that there had been a massacre as a result of a police attack on protesting workers at a tea estate in Manjoli on 23 July 1999. However, it contrasted the inconsistent evidence given by the Applicant in his Statutory Declaration to the effect that his father took Mr Palani to the hospital with his evidence at the Tribunal hearing that his father had actually been beaten to the point of unconsciousness at the incident on 23 July 1999 and was admitted to hospital where he was treated for two days and then discharged.
At [23] to [27] of its Decision Record the Tribunal considered country information in relation to the incident on 11 September 2011 and inconsistencies in the Applicant’s evidence in his Statutory Declaration about the death of his uncle on that date and his oral evidence concerning that event at the Tribunal hearing.
At [28] the Tribunal contrasted further inconsistent evidence given to the Tribunal about a visit of the police to his uncle’s house a month after the uncle’s death.
At [30] the Tribunal found the Applicant’s delay in leaving India was inconsistent with his claims that he would be harmed and killed by the authorities in India because he was a Dalit. The Tribunal recounted that subsequent to the claimed incident where his uncle was killed on 11 September 2011 the Applicant obtained his Indian passport on 26 December 2011 but did not obtain his Business visa until 1 May 2012, and then did not arrive in Australia until 11 June 2012, having left India on 10 June 2012.
In the result the Tribunal did not accept that the Applicant’s evidence was credible and rejected the totality of his claims at [32] of its Decision Record.
The Tribunal found at [33] that there was not a real chance that the Applicant would in the reasonably foreseeable future suffer serious harm for any Refugees Convention reason were he to return to India. Therefore the Tribunal was not satisfied that the Applicant satisfied the criteria set out in s.36(2)(a) of the Act.
The Tribunal went on to consider the complementary protection criterion under s.36(2)(aa) of the Act, and concluded at [37] that it was not satisfied that the Applicant was a person in respect of whom Australia had protections under s.36(2)(aa) of the Act.
Consequently, the Tribunal at [39] of its Decision Record affirmed the Delegate’s decision not to grant to the Applicant a Protection visa.
Grounds of Attack on Tribunal Decision in this Court
The Grounds relied upon by the Applicant in his Application of 10 June 2014 were as follows:
1. The RRT failed to consider all aspects of my claims and therefore made a jurisdiction-related error.
Particulars
RRT relied heavily on incidents claimed but not on affiliation of the applicant which was political.
2.The RRT failed to consider a core claim of the applicant for protection
Particulars
It was implicit that applicant was affiliated to Dalit, a low caste, and RRT did not consider this matter.
At the hearing the Applicant did not appear able to make any meaningful oral submissions in support of these Grounds.
Consideration
Ground 1
This Ground makes a general claim that the Tribunal did not consider all aspects of the Applicant’s claims. However, the Particulars to the Ground appear to suggest that the Tribunal did not consider the Applicant’s political affiliation.
Of course, it is a core function of the Tribunal to respond to the case that an applicant advances before it. As Allsop J (as he then was, and with whom Spender J agreed) stated in HTUN v Minister for Immigration (2001) 233 FCR 136 at 152-153 [42]:
... The requirement to review the decision under s 414 of the Act requires the tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration ... It is to be distinguished from errant fact finding. The nature and extent of the task of the tribunal revealed by the terms of the Act ... make it clear that the tribunal’s statutorily required task is to examine and deal with the claims for asylum made by the applicant.
However, in my view the Applicant has failed to establish that the Tribunal failed to consider or disregarded his claim of political affiliation.
At [20] of its Decision Record the Tribunal, just before commencing a consideration of the Applicant’s claims and evidence, stated:
The applicant claims protection in Australia because he is a dalit and also because of his and uncle’s and father’s political activities in support of dalits, and the harm they have suffered as a consequence and the harm which he fears he will suffer in the future.
(emphasis added)
Then at [32] of its Decision Record the Tribunal, although not accepting them, set out the Applicants claims in relation to political affiliation, as follows:
The Tribunal does not accept the applicant’s claims that:
·…………………………………………………………………
·The applicant became a full-time party activist in the Viduthalai Siruthaigal party, led by Thos Thirumavahavan.
·…………………………………………………………………
·The applicant participated in a hunger protest on 15 January 2009 near Chennai for Sri Lanka Tamils and then hartal was organised by Thol Thirumavahavan who supported the Liberation Tigers of Tamil Eelam.
·…………………………………………………………………
·In April 2011 the Party conducted the local election. He was working for the Thittakudi legislative assembly candidate Sinthanai Selvan. He lost his job because of his political involvement and went to his uncle in Paramakudi.
·…………………………………………………………………
·He obtained his passport on 26 December 2011 in Trichy and his visa with help of party members.
In my view there is no valid basis to Ground 1. It does not establish that the Tribunal decision was affected by jurisdictional error.
Ground 2
This Ground also fails to establish jurisdictional error. It is simply not the case that the Tribunal did not consider the Applicant’s claim to be a Dalit and that he would suffer harm for that reason if he returned to India.
That claim was specifically mentioned in [20] of the Decision Record extracted at [26] above. The Applicant’s claim to be a Dalit was again expressly referred to by the Tribunal in its Decision Record, at [32], where it recited but did not accept his claims that:
·His religion is Pallar / ADI Diravidar.
·He, his father, mother or uncle or family are dalits.
·………………………………………………………………
·He will be harmed and killed by authorities because he is a dalit.
This Ground also fails to establish jurisdictional error.
Conclusion
In my view the Applicant has failed to establish that the Tribunal failed to properly consider the claims which he made and in particular his claimed political affiliation and activity and the fact that he claimed harm as a Dalit.
The Applicant has failed to establish that the Tribunal did not discharge its duty under s.414 of the Act to conduct a review of the decision of the Delegate, or that the Tribunal’s decision is affected by jurisdictional error.
Accordingly, the Application filed in this Court on 10 June 2014 is to be dismissed.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 13 July 2017
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