SZUMS v Minister for Immigration

[2016] FCCA 696

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUMS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 696

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – No matter of principle.

Legislation:

Migration Act 1958, ss.36, 424A, 474

Tribunals Amalgamation Act 2015, item 15AG of sch.9

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: SZUMS

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1574 of 2014

Judgment of: Judge Cameron

Hearing date: 3 March 2016

Date of Last Submission: 3 March 2016

Delivered at: Sydney

Delivered on: 3 March 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms H. Dejean of Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $4,800.00.

3. The Administrative Appeals Tribunal replace the Refugee Review Tribunal as second respondent in this proceeding.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1574 of 2014

SZUMS

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS  TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of India who arrived in Australia on 14 February 2013. On 19 February 2013 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that he feared persecution in India because of his political opinion. On 5 August 2013 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.

2. In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Background facts

1. In its decision the Tribunal summarised the facts alleged in support of the applicant’s claim for a protection visa.  As summarised by the Tribunal, the applicant relevantly made the following claims:

   a)he was born in the Tamil Nadu state of India;

   b)he was a member of the Pallar caste, the lowest caste in India, and as a result had suffered discrimination and persecution all his life;

   c)in India he had been involved with two political parties which supported the rights of Dalits, members of lower castes;

   d)he had joined the Puthiya Thamizhagan Party (“PT party”) but when he married in 2000 the leader of the PT Party opposed the match so he left the party;

   e)he later joined the Viduthalai Siruthaigal Party (“VS party”) and worked for it during the 2006 state elections.  He had also assisted the party leader in the 2009 parliamentary elections;

   f)he had suffered harm and discrimination in India from members of upper castes, other political parties and the police;

   g)he feared that if he returned to India he would be discriminated against and would be unable to obtain employment or food;

   h)he also feared that if he returned to India he would be arrested and tortured by the police as a Dalit activist.  He feared that if there was any trouble with the castes he would be targeted by the police.  The police had a quota of the number of people they had to detain and if they failed to reach the quota they would harass and assault him; and

   i)he could not relocate because the situation for Dalits was the same everywhere in India.

2. In its decision record, the Tribunal noted that at its hearing the applicant had sought time to produce to it, relevantly, a copy of his caste certificate and documents concerning his previous arrests in India.  The applicant claimed that he had asked his wife to obtain the documents four or five months before the Tribunal hearing and that she had been mistreated by the authorities because of their caste but had found someone to assist her in obtaining the documents and might have them in seven to ten days.  The Tribunal noted that as the applicant had indicated in his application for a protection visa that he would be producing supporting documents, he had been aware that he had documents he wanted to produce but on his evidence he had only asked his wife to obtain the documents four or five months prior to the Tribunal hearing.  The Tribunal was also concerned that the applicant had not asked his wife to obtain the documents after his application was refused by the delegate, nine months earlier, even though the absence of supporting documentation had been discussed with him at his departmental interview.  Having regard to the applicant’s significant delay in attempting to obtain the documents, the Tribunal advised the applicant that it would not make its decision for a further seven days and would consider any reasonable request for an extension of time to produce the documents.  By the time the Tribunal made its decision, over ten days later, the applicant had not provided any documents or sought an extension of time.  In those circumstances, the Tribunal considered it appropriate to proceed to make a decision without waiting for any further documents.

The Tribunal’s decision and reasons

1. The Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons.

2. The Tribunal found that the applicant was not a witness of truth and had fabricated his claims of past harm and possible future harm for the purposes of obtaining a protection visa.  It found that the applicant gave changing, contradictory and confusing evidence about matters which were central to his claims.  The Tribunal therefore did not accept any of the applicant’s claims.

3. Relevantly for this proceeding, in his statement the applicant claimed to belong to the Pallar caste, which he contrasted with another caste, the Parayar caste.  However, at the Tribunal hearing he claimed to belong to the Parayar, Pallar caste and said that it was sometimes called the Pallar caste but was mostly called the Parayar caste.  After referring to country information indicating that the Pallar and Parayar castes are different castes, albeit both Dalit castes, the Tribunal found that if the applicant belonged to either of those castes he would have been able to state clearly to which he belonged and his evidence undermined his claim to be a Dalit from either the Pallar caste or the Parayar caste. 

4. The Tribunal also noted that although the applicant claimed to have been a full-time activist for the PT party and to have worked for the successful VS party candidate in the 2006 state elections, his descriptions of the PT and VS parties’ flags differed from their descriptions in country information accepted by the Tribunal.

5. The Tribunal further noted that although the applicant had claimed that when moving houses he and his family had chosen to live in the same area and after his departure for Australia his family continued to live in the family home in that area, it was not suggested that any of them had been subjected to harm or discrimination.  The Tribunal found that if the applicant had thought that there was any risk to him or his family, he would not have allowed them to remain in the same area.  It found that he had left his family in the family home, and had himself lived in that same area, because he did not fear harm or discrimination there. 

6. In relation to the applicant’s claims of discrimination in employment, the Tribunal considered the applicant to be an intelligent and resourceful man who had had ten years of education and had worked in India and in Australia.  On the basis of its findings on his credibility, the Tribunal did not accept that it would be difficult for the applicant to find work.

7. The Tribunal noted that while the applicant had claimed that he suffered from depression because of the treatment he received in India, he had not produced any medical evidence to support that claim.  It found that while the applicant claimed that his mental health issues arose as a result of his claimed treatment in India, it had rejected his claims about the treatment he claimed to have received in India and therefore it did not accept that he had any mental health difficulties.  The Tribunal also did not accept that the applicant had any mental health difficulties which would have prevented him or disadvantaged him in giving evidence on his protection visa application.

Proceedings in this Court

1. In the application commencing these proceedings the applicant alleged:

   1.The Tribunal failed to provide an opportunity to the First applicant to adduce additional evidence and this resulted in miscarriage of justice and has vitiated the procedural fairness.

   Particulars

   The First applicant at the time of hearing before the Tribunal requested for further time (para 40 of the Tribunal’s order) to adduce additional evidence regarding the social group (caste) to which he belongs, details about the court proceedings which falsely implicated him with a view to intimidate and harass him.  The Tribunal did not grant adequate time to produce these records which need to be obtained from overseas.  It is submitted that the time required for transit by post from India in itself will be about 7 to 10 days, where as the Tribunal granted only 7 days, in spite of the First applicant’s request to grant extra time as his wife need to obtain and forward the relevant documents to him.

   2.The Tribunal erred in law by failing to issue a notice under Sec 424A in respect of information which the Tribunal relied upon, which were not adduced by the applicant or applies to the social group to which the applicant belongs in general and denied the applicant of procedural fairness in rebutting such facts.

   Particulars

   The Tribunal confronted the applicant at the time of hearing about the design of flags of the political party (para 27 & 28 of the order).  The Tribunal should have given a copy of any such external information in advance to the applicant especially before it can draw any adverse inference.

   3.The Tribunal erred in law in that it misconstrued and misapplied the proper test relating to persecution by failing to consider correctly the social group to which the applicant belongs and what might reasonably be expected of the applicant with respect to his relocation within India.

   Particulars

   The applicant respectfully submits that the Tribunal failed to consider all material on record and misapplied the proper test in connection with social group to which the applicant belongs.  Further the Tribunal failed to consider how the well founded fear of persecution in the case of the applicant who belongs to a socially extremely backward group but politically very active group.  These people like the applicant form a separate social group which mainly consists socially very backward but politically very assertive group.  Further in case of relocation in India it is submitted that discrimination and persecution against this group (politically active lower caste group) is prevalent throughout India and that it is not reasonable for the applicant to relocate anywhere in India.  In this regard the applicant relies on the decision made in In SZATV v Minister for Immigration and Citizenship and Another (2007) 233 CLR 18 Gummow, Hayne and Crennan JJ stated (at [24]) that in considering relocation:

   “What is reasonable”, in the sense of “practicable”, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality”.

Ground 1

1. As the summary of the Tribunal’s hearing set out earlier in these reasons indicates, the applicant was not denied an opportunity to put material before the Tribunal as he alleged in the first ground of his application.  Not only did the Tribunal give the applicant at least seven days within which it would not make its decision, and thus gave him a period within which he could supply it with further material, it told him that it would consider any reasonable request for an extension of time to produce such documents.

2. The uncontradicted statement in the Tribunal’s reasons is that the applicant never sought an extension of time for the production and supply of documents.  On the facts, the allegation is not made out. 

Ground 2

1. Although in the second ground of the application the applicant alleged that s.424A(1) of the Act required the Tribunal to give him the information concerning party flags about which he was queried at the Tribunal hearing, the information did not, in my view, fall within the scope of information governed by s.424A(1) which relevantly provides:

   424A  Information and invitation given in writing by Tribunal

   (1)     Subject to subsections (2A) and (3), the Tribunal must:

   (a)  give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)  ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c)  invite the applicant to comment on or respond to it.

   …

2. In this case the Tribunal did not make its decision to affirm the delegate’s decision because the information concerning the party flags contradicted the applicant’s case or otherwise provided a reason for affirming the delegate’s decision, but because the ignorance which the applicant displayed concerning the flags suggested that he was not politically active as he alleged.

Ground 3

1. The third ground of the applicant’s application contained two elements.  The first concerned the particular social group of which the applicant claimed to be a member and the second concerned the question whether he might relocate within India in order to avoid persecution in his home area. 

2. As to the first of these elements, the Tribunal did not suggest that if the applicant had been a Dalit he would not have been a member of a particular social group as that expression is understood in light of the authorities.  The Tribunal’s finding was that it did not accept that the applicant was a Dalit from either the Pallar/Pallan caste or the Parayar caste.  Given that the Tribunal did not accept the applicant’s allegation to be a member of one of the Dalit castes, it did not need to consider whether his membership of such a caste amounted to membership of a particular social group which might lead him to have a well-founded fear of persecution for a Convention reason.

3. The second element of the third ground of the application, that concerning relocation, was misconceived because the Tribunal made no finding that the applicant could avoid persecution in India by relocating elsewhere in that country.  There was no need for the Tribunal to make such a finding because it did not accept the applicant’s allegations that he had a well-founded fear of persecution for a Convention reason.

Ground 4

1. Annexed to the applicant’s affidavit sworn on 28 November 2014 and filed on that date was a statutory declaration declared on 28 November 2014 in which the applicant spoke of a “mental inability” which he said disabled him from presenting his case to the Tribunal.  The information in that statutory declaration did not, in my view, cast doubt on the applicant’s ability to participate in the Tribunal’s hearing or the review generally or take the issue any material distance beyond the information which was before the Tribunal and discussed by it at paras.19, 37, and 50 of its decision record.

Ground 5

1. At the hearing of this application, the applicant made various submissions concerning the risks he said he faced were he to return to India.  Those submissions invited the Court to engage in impermissible merits review; that is to say, to reconsider whether the applicant is entitled to a visa.  As explained to the applicant during the hearing of this application, and as noted earlier in these reasons, the Court cannot do that. 

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Accordingly, the application will be dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 31 March 2016