SZUQP v Minister for Immigration and Border Protection
[2017] FCA 186
•15 February 2017
FEDERAL COURT OF AUSTRALIA
SZUQP v Minister for Immigration and Border Protection
[2017] FCA 186
Appeal from: SZUQP v Minister for Immigration and Border Protection [2016] FCCA 2899 File number: NSD 1863 of 2016 Judge: RARES J Date of judgment: 15 February 2017 Legislation: Migration Act 1958 (Cth) s 36(2)
Refugees Convention
Cases cited: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Date of hearing: 15 February 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 34 Counsel for the Appellant: The Appellant appeared in person Solicitor for the First Respondent: Ms E Warner Knight of Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
NSD 1863 of 2016 BETWEEN: SZUQP
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
RARES J
DATE OF ORDER:
15 FEBRUARY 2017
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)RARES J:
This is an appeal from the decision of the Federal Circuit Court refusing the appellant Constitutional writ relief from the decision of the then Refugee Review Tribunal given on 24 June 2014 that affirmed the Minister’s delegate’s decision not to grant him a protection visa: SZUQP v Minister for Immigration and Border Protection [2016] FCCA 2899.
Background
The appellant is a citizen of India who applied to the Minister’s Department for a protection visa on 17 October 2012. The delegate refused to grant the visa on 27 February 2013, and the appellant applied to the Tribunal to review that decision.
The appellant claimed in his visa application that he had been an active member of Youth Congress from 1995, when he was about 24 years old. He appeared to reside in Kerala State.
The appellant claimed that, on the night of 20 March 2000, he had witnessed the murder of a man by three people, their principal being a Mr Kumar. The appellant claimed that he had been lucky to escape the murderous attack and that, subsequently, he had been kidnapped by Mr Kumar’s people, taken to a godwon (i.e. a warehouse), tortured, and that the form of torture had left marks on his body. He claimed that he had been warned by his kidnappers that he should not give evidence against them.
The appellant left India on 24 December 2007 and applied for refugee status in Norway, claiming to fear persecution. He claimed that that application had been dismissed by the Norwegian authorities without proper investigation.
The appellant claimed that he had given evidence against Mr Kumar before he had left India for Norway, despite the threats by Mr Kumar and party leaders, and that he, the appellant, subsequently became a party enemy. He claimed that, on 4 December 2008, Mr Kumar had been sentenced to jail for life but that on 3 February 2009, using his power and money, Mr Kumar had left custody.
He claimed that, in 2010, one “of our leader[s], who used to finance our expenses to run the case [was] nearly killed by [Mr Kumar’s] people” after returning from the United Arab Emirates and that that person had been hospitalised for three months. The appellant claimed that persons had gone to his house and harassed his family members, and that the Indian authorities would not protect him because the party controlled the local police and judiciary.
After the appellant’s unsuccessful claim for protection in Norway, he was returned to India on 4 May 2011. The appellant claimed that after his return from Norway, he hid in Mumbai, but that he was an easy target for Mr Kumar and his associates because he had been a witness to the murder, and that Mr Kumar was rich and influential to the Congress Party.
On 13 July 2012, the appellant was granted an Australian temporary business visa. He left India on 16 September 2012 and arrived in Australia the next day. The appellant’s wife and son live with her family in Trivandrum, Kerala.
The delegate’s decision
The appellant attended an interview with the delegate. The delegate asked him why no original documents had been submitted either with his application or at the time of the interview. The appellant responded that he had given the original documents to the Norwegian authorities when he had sought asylum there.
The delegate had concerns about the authenticity and accuracy of the information in the documents and gave no weight to them on the basis of country information that established that it was easy to obtain false documents in India. The delegate concluded that even if the appellant’s claims were genuine, they did not fall under any of the Refugees Convention grounds and amounted only to a dispute of a civil nature between the appellant and Mr Kumar and his associates, albeit with criminal overtones. The delegate also rejected the appellant’s claim for complementary protection. The delegate found that country information indicated that there were avenues for the appellant to take steps to avail himself of State protection in India if that were required, and that that was a sound and reasonable option were he to return to India and threatened in any way by Mr Kumar or his associates, as he claimed to fear.
The delegate also found that even if the appellant were to return to India and still felt insecure in his local area, he would be able to relocate to another part of India, such as one of the large cities, where he would be just another member of society. The delegate noted that the appellant spoke, read and wrote Malayalam and English, had completed 11 years of education, had lived in Norway between late 2007 and 2011, had held a job there for three years while saving a substantial amount of money, and then had lived in Australia for five months (at the time of the interview). The delegate found that all of those factors indicated that the appellant would have no problem in being away from his home and his relatives if he relocated within India. The delegate found the country information also indicated that anyone could move and relocate themselves to any part of India, that was not an exclusive or restricted zone, and that, therefore, relocation would be a safe and reasonable option for the appellant.
Accordingly, the delegate found that there was no real risk that the appellant would be killed if he were removed from Australia to India, as he claimed to fear, or that he would suffer significant harm. That was because the appellant could take steps to avail himself of State protection if required, or could also relocate, and that relocation would be a safe and reasonable option.
The Tribunal’s decision
During the hearing before the Tribunal, it questioned the appellant about his claims for protection. He claimed that, in accordance with a document purporting to be a summons to a witness, he had given evidence about the murder to a sessions court in 2007 and that he had gone to court whenever he had been required over two or three days. He said that sometimes the case was postponed. The appellant asserted that he had been called to give evidence on the last day of Mr Kumar’s trial, that had taken place over a two-month period. The summons was a printed form in English and appeared to be issued under the Indian Criminal Procedure Code. The summons appeared to be dated 7 November 2006. It had a stamp with the session court’s name impressed in the place where the name of the court should have appeared. The summons had handwriting in Malayalam script inserted into it, and a date for attendance, in English, of 5 or 9 September 2007.
The appellant also produced to the Tribunal a certificate in English purporting to have been issued on 1 September 2009 by the public prosecutor. It certified that the appellant was a witness in the case number SC No 926/02 in the sessions court in Trivandrum and that the court had convicted three persons, the first named of whom was Mr Kumar. It stated that Mr Kumar was on parole and that he had absconded on 3 February 2009.
The Tribunal did not accept the summons or the certificate as being genuine but it did accept, as genuine, another document that the appellant provided that appeared to be a trial record issued by the sessions court in Trivandrum. The trial record stated that Mr Kumar and five others had been tried and that the trial had begun on 25 August 2006 and concluded on 25 November 2008. It stated that the first three accused, including Mr Kumar as the first accused, had been found guilty of offences and sentenced to imprisonment for life. The trial record stated that the case had “stood for trial” for 13 days commencing on 21 October 2008 and concluding on 25 November 2008.
As is apparent from the face of the trial record, if the trial occurred during the 13 days in late 2008 that it nominated, the appellant could not have been there, since he was in Norway, which the Tribunal found was the case. It had put to the appellant, during the hearing, that, having regard to those dates, he could not have been present at the trial because he was in Norway and he responded that those dates were “trial for only those people”. The Tribunal asked him about the lack of correspondence of the trial record with the date for which the summons required him to give evidence, namely 7 September 2007. He said that, in fact, he had attended the trial and that the trial record was made just before the then-prisoners had been sent to jail.
The appellant agreed with the Tribunal that it was easy to get false documents in India. It then put to the appellant that he had remained in India for more than seven years after the murder without being harmed, to which he responded that it was only after the court case that the problem occurred, in 2005 or 2006. The Tribunal also put to the appellant that, during the hearing, he had not claimed to it that he had been kidnapped, to which he responded that he had been, but had not spoken about it because the Tribunal had not asked him.
The Tribunal found that the appellant was not in India when Mr Kumar’s trial was held and that he did not give evidence during that trial. It did not accept that the dates for trial were for other people, as the appellant claimed. It then made the findings I have mentioned about the genuineness, or lack of genuineness, of each of the summons, the certificate and the trial record. The Tribunal found that the appellant’s claims depended on it accepting that he had given evidence in the murder case and had to flee India because of the threats of harm that he had received before he left. It did not accept that his claims were genuine because he had relied on two documents that the Tribunal had found were not genuine, each of which was inconsistent with the (genuine) trial record, and that these facts did not support his case.
The Tribunal did not accept that the appellant had witnessed a murder in 2000 involving Mr Kumar or his associates. It did not accept all his other claims, that all depended upon its acceptance of that principal claim, including his claim that he was now an enemy of the party or that he had suffered harm in the past because he had witnessed the murder. Accordingly, the Tribunal did not accept that the appellant would suffer any harm if he returned to India. It found that his claims had been fabricated for the purposes of obtaining a protection visa.
The Tribunal was not satisfied that there was a real chance the appellant would suffer serious harm in the reasonably foreseeable future for a Refugees Convention reason were he to return to India, or that there were substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to India, there was a real risk he would suffer significant harm for the purposes of each of s 36(2)(a) and (aa) of the Migration Act 1958 (Cth). Therefore, the Tribunal affirmed the delegate’s decision.
The proceedings before the trial judge
The appellant’s grounds of his application to the trial judge were that the Tribunal:
·had constructively failed to exercise its jurisdiction because it had failed to engage in an active intellectual process in respect of the documents he had provided to it to support his claims and that the Tribunal erred in placing no weight on those documents and assessing his credit adversely, without itself assessing the substance of the documents that corroborated his claims;
·committed a jurisdictional error because it did not take into account, or consider, his claims in relation to the murder;
·committed a jurisdictional error because it had not considered key elements of the Refugees Convention definition.
The trial judge noted that the appellant had asserted that everything he had told the Tribunal was true and that he also felt aggrieved because it did not accept that all his documents were genuine. His Honour explained, as I also did to the appellant today, the limited grounds on which a Court could judicially review the decision of the Tribunal.
His Honour found that while, ultimately, the Tribunal had concluded that the appellant had fabricated the core of his claims to fear harm, that was not the basis on which the Tribunal had assessed the genuineness or otherwise of the three documents that the appellant had given to it. His Honour found that, contrary to the first ground, the Tribunal considered and weighed each of the three relevant documents, the summons, the certificate and the trial record, according to its own assessment of them, giving reasons why it found that the trial record was genuine and the other two documents were not.
His Honour concluded that the Tribunal had engaged in an active intellectual exercise in the circumstances where it gave reasons, that were open to it, by explaining why it had accepted the authenticity of the trial record but not of the other two documents. He pointed out that the Tribunal was entitled to have regard to the fact, as it did, that the absence, on the face of the summons, of the name of the accused was not consistent with what would be expected if that had been a genuine court document. He found that the Tribunal had considered each of the three documents, made findings about them, and that those findings were reasonably open on the material before it. Accordingly, his Honour rejected the first ground.
The trial judge found that the second ground was without merit because the Tribunal did consider the appellant’s evidence about having witnessed a murder and his giving evidence in the subsequent trial, but it had explained in its reasons why it did not accept his claims and evidence to it.
His Honour rejected the third ground, finding that, to the extent that it raised any intelligible complaint about the process in the Tribunal, it was really seeking merits review of the Tribunal’s decision, which was not open to the Court.
This appeal
The appellant’s notice of appeal asserted two grounds namely, first, the documents he had submitted were, wrongly, not found to be genuine by both the Tribunal and the Federal Circuit Court and, secondly, because his life was threatened in India, he could not return there, so this Court had to reassess the evidence and supportive documents.
The appellant appeared in person today. He appeared to be able to speak English relatively fluently but was also assisted by an interpreter. He said that he was not a lawyer, his evidence was “original”, he had given true evidence to the Tribunal and could not go back to India.
The appellant’s grounds of appeal complain about the Tribunal’s findings of fact that not only were the summons and certificate fabrications, but so too were the rest of his claims. However, it was open to the Tribunal to do so. In my opinion, both grounds of appeal are, in effect, claims by the appellant for the Court to engage in merits review, which is not permissible: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
In any event, it is difficult to see how the appellant’s claims could have founded an application for a protection visa. The appellant also claimed that he was a member of Youth Congress and that Mr Kumar and his associates were powerful members of the Congress Party. However, in essence, he claimed that he feared that Mr Kumar and his associates would harm him because he had witnessed them committing a murder in 2000. That claim did not raise any substantive issue in relation to political opinion or any other ground under the Refugees Convention because the essential reason for the appellant’s claim to fear harm was simply that he had been a witness to a murder.
There was no reason for the Tribunal to think that the appellant had made any claim arising under the Refugees Convention relating to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. Rather, his claim to fear serious harm related only to his being allegedly at risk, as a witness of a murder, from Mr Kumar and his associates in a country the size of India. The delegate dealt with those matters by saying that the appellant could relocate. It was not necessary for the Tribunal to make a similar finding since it concluded that all of the appellant’s claims had been fabricated for the purpose of obtaining a protection visa.
Conclusion
Having reviewed carefully all of the material in the appeal book, including the Tribunal’s reasons and his Honour’s judgment, I am unable to see any arguable basis that the Tribunal had made a jurisdictional error in affirming the delegate’s decision or that the trial judge had erred in coming to his conclusion that the application below should be dismissed.
For these reasons, I am of opinion that the appeal must be dismissed with costs.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate:
Dated: 6 March 2017
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