SZUQP v Minister for Immigration

[2016] FCCA 2899

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUQP v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2899

Catchwords:
MIGRATION – Application for review of decision of Tribunal decision – whether Tribunal considered documents – whether Tribunal did not consider claims made by the applicant – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Cases cited:
Nguyen v Minister for Immigration and Multicultural Affairs [2000] FCA 1265; (2000) 101 FCR 20
SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702

Minister for Immigration v Wu Shan Liang [1996] HCA 6; (2009) 185 CLR 259

Applicant: SZUQP

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1867 of 2014

Judgment of: Judge Nicholls

Hearing date: 13 October 2016

Date of Last Submission: 13 October 2016

Delivered at: Sydney

Delivered on: 13 October 2016

REPRESENTATION

Applicant: In Person

Solicitors for the Respondents: Ms E Warner Knight of Australian Government Solicitor

ORDERS

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

2. The application made on 7 July 2014 is dismissed.

3. The applicant pay the first respondent’s costs set in the amount of $5,300.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1867 of 2014

SZUQP

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 7 July 2014 seeking review of the decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made on 24 June 2014, which affirmed the decision of the delegate of the Minister to refuse a Protection (Class XA) visa to the applicant.

2. In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”). The applicant sought to rely on an affidavit made by him on 7 October 2014 (see further below).

Background

1. The applicant is a citizen of India. He arrived in Australia on 17 September 2012 on a Temporary Business visa (CB 14). He applied for a protection visa on 17 October 2012 (CB 1 to CB 37).

2. In that, he claimed that he was an “active member” of the “Youth Congress” in 1995 (CB 18). The applicant claimed that in 2000 he was a “witness of a murder case in India”, allegedly committed by the leader of the Congress Party and that he had been kidnapped by the alleged murderer’s “people” (CB 18 to CB 19). He claimed that he had been “tortured” and warned not to act as a witness in the case (CB 19). The applicant acted as a witness anyway and the murderer was imprisoned (CB 19).

3. The applicant left India in 2007 because he feared harm, and sought refugee protection in Norway (CB 19 to CB 21). He claimed that that application was dismissed “without making proper investigation”.  When the applicant returned to India from Norway he did not return home, but was “hiding in Mumbai”. He claimed that if he returned to India now the authorities would not protect him (CB 19 to CB 21). He attached a number of documents to the application including, relevantly, a “Summons to a Witness”, a “certificate”, and a document headed “Sessions Case No.926/2002” (CB 34 to CB 35).

4. The delegate refused the application for the visa on 27 February 2013 (CB 38 to CB 53). The applicant applied for review to the Tribunal on 18 March 2013 (CB 54 to CB 59).

5. The Tribunal affirmed the decision 24 June 2014. The Minister has provided a clear and in my view fair summary of the Tribunal’s decision in his written submissions. For the sake of convenience, I will rely on it for the purposes of this judgment ([7] – [11] of the Minister’s written submissions):

   “[7] The applicant had provided a summons (RD 34), purportedly addressed to him, requiring him to appear in court as a witness. The name of the addressee of the summons was written in Malayalam script, and the name and address of the accused in the trial was blank. The summons required an appearance of the recipient on 5 September 2007. The Tribunal found the summons was not genuine, noting the unlikelihood of the applicant's name being written in anything other than English and the fact the accused's name and address was omitted. Further, the alleged summons specified a date on which the trial was not held (RD 82−83 [20], [24] and [303).

   [8] The applicant also provided a court document dated 8 December 2008 (RD 36−37) that set out the findings and sentences for Sudhin [the alleged murderer] and several others. The document stated the trial commenced on 25 August 2006 and ended 25 November 2008, and that the days the case stood for trial was from 21 October 2008 to 25 November 2008. The Tribunal accepted the genuineness of this document, and concluded that the applicant constructed his claims around this document. The Tribunal found that on the basis of the applicant's own evidence, he was in Norway, not India, at the time of the trial and on this basis, found he did not give evidence during the trial (RD 83 [23], [29]).

   [9] The Tribunal found, given the applicant's claims all relied on his claim of having given evidence in the trial of Sudhin, it was not satisfied his claims were genuine in light of the documentary evidence (RD 84 [32]).

   [10] Having found that the applicant concocted his claim to have given evidence at the trial of Sudhin, the Tribunal was not prepared to accept he had witnessed a murder involving Sudhin and his associates in 2000 or that for that reason he had become a party enemy (RD 84 [32]−[33]). Accordingly, the Tribunal found that there was not a real chance the applicant will suffer serious harm in India for a Convention reason, nor were there substantial grounds for believing that as a necessary and foreseeable consequence of returning to India there would be a real risk the applicant would suffer significant harm: (RD 84 [34]−[38]).

   [11] On this basis it concluded that the applicant did not satisfy the criterion set out in either ss 36(2)(a) or 36(2)(aa) of the Act.”

Application Before the Court

1. The application before the Court contains the following grounds:

   “1. The Tribunal constructively failed to exercise its jurisdiction;

   Particulars:

   The applicant provided documents to the Tribunal to corroborate his claims. The Tribunal failed to engage in an active intellectual process of these documents. The Tribunal ultimately gave the documents no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the documents without engaging to the contents of these documents. It was an error for the Tribunal to assess the applicant's credit without first assessing whether the substance of the documents corroborated his claims.

   2. The decision of the Tribunal was affected by jurisdictional error in that the Tribunal failed to carry out its review function in that it did not take into account or consider claims made by the first applicant in relation to the murder of Mr Vajayan.

   3. The applicant satisfies the key elements of Convention definition. The Tribunal has not considered this aspect and therefore committed factual and legal error.

Before the Court

1. Drawing from what is on the Court’s file, the applicant appeared at a directions hearing in this matter on 27 August 2014 and 11 February 2015.  Various orders were made on those occasions giving the parties the opportunity to file any amended application, any evidence in support by way of affidavit and written submissions. 

2. Before the Court today the applicant appeared in person.  He was assisted by an interpreter in the Malayalam language.  The Minister was represented today by a senior solicitor with the Australian Government Solicitor.

3. The applicant sought leave to read his affidavit made on 7 October 2014. He annexes a number of documents that he describes in his affidavit as being his “ID Bank”, “tax return” and an “Advocate letter” from Norway.  The documents are not written in the English language.  It may be that the documents are in the Norwegian language.  No translation has been provided.

4. The Minister opposed the grant of leave to formally read the affidavit. I agreed with the Minister that, on the evidence, the material was not before the Tribunal.  Before the Court, the applicant confirmed that to be the case. Further, the affidavit and in particular the attached documents are not relevant, or cannot be seen to be relevant to the issue as to whether the Tribunal’s decision is affected by jurisdictional error. 

5. As I sought to explain to the applicant today, the only way that the Court could intervene to assist him was if it could be seen that the Tribunal had fallen into some legal, in particular jurisdictional, error.  The applicant’s affidavit, therefore, and the attached documents were not admitted into evidence. In any event, I note, as the Minister submits, the Tribunal accepted that the applicant had been in Norway from late 2007 to May 2011.

Consideration

1. Two matters require preliminary note. First, before the Court today, the applicant asserted that everything that he had said to the Tribunal was true. He was aggrieved because the Tribunal did not accept that all of his documents were genuine.  As I sought to explain to the applicant, the only issue which the Court is permitted to consider, relevantly under the law, is whether the Tribunal’s decision is affected by some legal mistake. Unless some legal mistake is found, his application could not succeed.  His grievance on its own was not sufficient to reveal jurisdictional error.

2. Second, as explained below, it is clear that the applicant’s grounds misconceive or misunderstand what the Tribunal actually reasoned.  In this regard, the applicant explained that he had consulted two lawyers but their costs were prohibitive and therefore he did not engage them.  I should note in that context that there is no right to legal representation before this Court in matters of this type (Nguyen v Minister for Immigration and Multicultural Affairs [2000] FCA 1265; (2000) 101 FCR 20 and SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702).

3. The applicant also explained that “someone” had assisted him in making his application to the Court. This person had read the Tribunal’s decision record to him.  It may be that the applicant’s misunderstanding about what the Tribunal has actually reasoned and found arose from some difficulty in understanding by whoever read the Tribunal’s decision record to him. 

4. Ground one of the application asserts that the Tribunal failed to constructively exercise its jurisdiction because it failed to engage in an active intellectual process in relation to documents that the applicant gave to it. The applicant complains that the Tribunal gave no weight to these documents because of the adverse credit findings that it had otherwise made.  The ground asserts that the Tribunal was in error in assessing the applicant’s credit without first assessing the substance of the documents which corroborated his claims. 

5. It is clear that whoever drafted this ground for the applicant or assisted the applicant in drafting it did not properly understand the Tribunal’s clear and evident reasoning in this case. 

6. It is the case that the Tribunal ultimately did find that the applicant had fabricated the core of his claim to fear harm. However, this was not the basis on which the Tribunal considered the genuineness, or otherwise, of the documents that the applicant had given to it. 

7. The applicant’s ground does not identify which documents he refers to. However, on the evidence before the Court, the applicant presented three documents to the Tribunal. The Tribunal identified these documents in its decision record, the first at [20] (at CB 82), for the “Summons to a Witness” (“the summons document”), second, at [21] (at CB 82 to CB 83) a two page written document, which could be understood as being a court certificate dated 4 December 2008 and headed “Sessions Case” (“the sessions case document”), and a third document at [23] (at CB 83), which is a certificate in English which appears to be a document signed by a public prosecutor in India (“the public prosecutor’s document”).

8. Contrary to the assertion in the applicant’s ground, the Tribunal did consider each of these documents and assessed each of the documents in light of their contents. Further, it also properly weighed this evidence in light of the applicant’s oral evidence to it.  This is the proper role of the Tribunal in exercising its jurisdiction. That is, to consider the evidence before it and to weigh all of the evidence and to make findings in light of that evidence.

9. Contrary to what is asserted in ground one, the Tribunal found that one of the documents, that is, the court document was genuine (see [29] at CB 83). The Tribunal gave reasons for this finding which arose from what was written on the face of that document.  Contrary to the applicant’s claims that the Tribunal did not engage in an active intellectual process in relation to the documents, in relation to this document, clearly the Tribunal not only considered it but accepted that it was genuine.  The Tribunal cannot be said to have failed to engage in an active intellectual exercise in circumstances where it gave reasons open to it as to why it accepted the authenticity of the document. 

10. The Tribunal, however, did not accept that the summons document was genuine.  It also gave reasons for that finding that arose from what was written on the face of that document. That is, that in the summons the document specified a date for the murder trial at which the applicant said he attended in India as a witness, but this date was different to the relevant date in the court document of December 2008. 

11. The Tribunal’s reasoning was that the sessions case document of December 2008 was genuine, and that the applicant’s claims had been constructed around that document.  On other evidence before it, the Tribunal found that the applicant was not in India at that time. It rejected his explanation for the inconsistency between the two documents (see [29] at CB 83).  This was explained by the Tribunal.

12. In these circumstances, the Tribunal found that whoever had “constructed” the applicant’s case had relied on the claimed trial date in that document which was different to what was in the sessions case document of December 2008. 

13. Contrary again to the applicant’s assertion in this ground that the Tribunal did not consider the documents themselves, the Tribunal considered the characteristics of that document. The Tribunal expressed concern with the inclusion on the summons document of the addressee’s name, that is, the name of the person to whom the document was addressed, which was handwritten in Malayalam, when the remainder of the document was in English.  The Tribunal also found that the absence on the face of the document of the name of the accused as not consistent with what would be expected if the document had been a genuine document. 

14. The Tribunal also found that the third document presented was not genuine because it did not accept that a public prosecutor would have any role to play after a court matter had been concluded ([31] at CB 84). 

15. In all, therefore, it is clear that, contrary to the applicant’s assertion in his ground, the Tribunal did “engage” with each of the documents.  Its findings in respect of each of the documents, and its conclusion, were all reasonably open to it on what was before it. 

16. Before the Court, the applicant said that all of his documents were genuine.  Even if the Court were persuaded of that assertion, as I said to the applicant, the Court cannot intervene to change findings of fact made by the Tribunal in circumstances where the Tribunal’s findings of fact, including findings on credibility, were reasonably open to it to make on the material that was presented to it.  Ground one of the application, therefore, is not made out. 

17. Ground two asserts jurisdictional error on the part of the Tribunal because it did not take into account, or consider, the applicant’s evidence in relation to the murder of Mr Vajayan, or involving a Mr Vajayan.  The applicant claimed to have given evidence in a subsequent trial and that this was the basis for his feared harm, albeit that that had occurred some seven years after the murder.

18. In light of the evidence before the Court, and in particular the Tribunal’s decision record, the applicant’s ground is without merit.  Contrary to what is asserted in the ground, the Tribunal did consider the applicant’s evidence that he had witnessed a murder and had given evidence at a subsequent trial. 

19. However, as I have already said, the Tribunal gave reasons to explain its findings that the applicant had not witnessed the murder, as he claimed.  The Tribunal’s findings, and its conclusion in this regard, were all reasonably open to it.  In this light, no jurisdictional error is revealed.

20. Ground three asserts that the applicant satisfied the key elements of the Convention definition of a “refugee”.  As the Minister, in my view correctly, submits, the evidence reveals that the Tribunal understood, and properly applied, the relevant test.  There was nothing on the evidence before the Court to show that the Tribunal misunderstood or misapplied the relevant test relating to whether an applicant satisfied one of the grounds of the Convention definition of a refugee.  In that light, the applicant’s ground three can only be understood as a request for the Court to engage in impermissible merits review (Minister for Immigration v Wu Shan Liang [1996] HCA 6; (2009) 185 CLR 259). Ground three also is not made out.

Conclusion

1. The grounds of the application do not reveal jurisdictional error on the part of the Tribunal. For that reason the application to the Court is to be dismissed. I will make the appropriate order.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date: 9 November 2016