SZUQS v Minister for Immigration

[2015] FCCA 2041

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUQS & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2041

Catchwords:
MIGRATION – Application for judicial review of decision of Refugee Review Tribunal (Tribunal) – whether it was reasonably open to the Tribunal not to accept the applicant as a witness of credit – whether it was reasonably open to the Tribunal not to accept inconsistent evidence – no jurisdictional error – application dismissed.

Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR
SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63; (2006) 228 CLR 152

First Applicant: SZUQS

Second Applicant: SZUQT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1871 of 2014

Judgment of: Judge Manousaridis

Hearing date: 23 July 2015

Delivered at: Sydney

Delivered on: 23 July 2015

REPRESENTATION

The Applicant appeared in person assisted by an interpreter

Solicitors for the Respondents: Mr L Dennis of Sparke Helmore

ORDERS

1. The application is dismissed.

2. The first applicant pay the costs of the first respondent set in the amount of $5,800.

3. The name of the second respondent be changed to Administrative Appeals Tribunal.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1871 of 2014

SZUQS

First Applicant

SZUQT

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicants seek judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) to refuse the applicants Protection visas.  The first applicant, who I will refer to as “the applicant”, is the only applicant who made claims for protection.  The second applicant, who is the applicant’s wife, applied as a member of the family unit of her husband. 

2. The applicant set out his claims for protection in a written statement.  In that statement he claimed he was a teacher in Ahmedabad, India.  One of his students, a boy, was in love with another student in the applicant’s class.  The two wanted to get married.  Their parents, however, opposed the couple getting married because of caste differences.

3. The couple went to the applicant for help because they were too young to do everything on their own, and needed financial support and someone to help them escape and settle elsewhere in India.  The applicant helped the young couple get married and settle in another city.  He also provided financial support until the boy and his bride started earning some money.  After the couple left, their parents started investigating and searching for them.  The boy’s father was involved in politics with the ruling party.  The parents attended the institution where the applicant taught, but were not able to obtain any information about the couple’s whereabouts.  A few months later the parents came to know that the applicant had helped the couple get married.  The parents tried to fight with the applicant and to harm him.

4. The applicant escaped to a city 30 minutes from Ahmedabad where he owns a business with his brother.  The applicant still visited Ahmedabad for business and other work, and the applicant was afraid of seeing the couple’s parents every time he travelled to Ahmedabad.  When the couple’s parents saw the applicant they always tried to harm the applicant and kill him.  The boy’s father also had contacts with Chief Police Officers and he tried to kill the applicant one night.  The applicant did not lodge a police report because he was scared the police would inform the boy’s father and the applicant would be in even more trouble.

5. The applicant moved to Mumbai in 2010, but the boy’s father found him and tried to harm the applicant using his political power.  The applicant stayed in Mumbai for two years before coming to Australia.  The applicant claimed before the Tribunal, and in his statement, that he fears that if he returns to India he will be harmed and killed by the boy’s father and his family members because they are involved in politics and do not value the life of anyone.  The applicant is also worried about his daughter’s life.

6. The Tribunal did not find the applicant to be a “credible, truthful or reliable witness”.  The Tribunal based this finding on what it considered to be the changing nature of the applicant’s claims and evidence, the internal inconsistencies of his claims and the applicant’s delay in leaving India.  The Tribunal found to be untrue the applicant’s claim that he helped two of his students get married and settle in another city.  The Tribunal so found because the applicant was unable to expand on the details in his written statement containing his claims for protection and because he gave evidence before the Tribunal that was inconsistent with his written statement.  For example, the applicant gave changing evidence about when the relationship between the students started.

7. In his statement the applicant said he helped the students to get married, whereas before the Tribunal the applicant said he was not aware if they were married.  In his statement the applicant said he helped the young couple settle in another city, but at the hearing he told the Tribunal he did not have any contact with the students after they left and did not know where they went.  The Tribunal also had concerns regarding the applicant’s claim that he was hunted and attacked by the boy’s father and by others.  In his statement the applicant claimed he travelled regularly to Ahmedabad for business and work after he escaped.  However, the applicant gave evidence before the Tribunal that he travelled to Ahmedabad six days out of seven to assist the children at school.

8. The Tribunal found this evidence to be inconsistent with the applicant’s claim that he was being hunted and subjected to a number of attacks.  The Tribunal considered it unlikely that the applicant would have continued to return to Ahmedabad as often as the applicant claimed he did if he had tried to escape from Ahmedabad.  The applicant also changed his evidence about the harm he suffered in Mumbai.  The applicant told the Tribunal he had been beaten up to three to four times in Mumbai in a two year period, but later changed his evidence to say he was beaten up every month.

9. The Tribunal further noted that the applicant was issued with an Indian passport in July 2006, that his troubles started in January 2010 and it took the applicant 2.5 years to leave India after his troubles started.  The Tribunal found that the applicant’s delay in departing India was “indicative that he did not have a genuine fear or any reason to leave India”. 

10. The applicants raise five grounds in their application for judicial review.  The first ground is:

    The refugee Review 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.

11. In response to my invitation to make submissions in relation to ground 1, the applicant, who is not legally represented, said “I did not have the evidence,” and that “whatever happened is what I described”. Later in the hearing before me, the evidence I understood the applicant intended to refer to was his not having filed a complaint with the police in India in relation to the matters he claimed had occurred to him there.  The applicant also repeated to me the gist of his claim for protection. 

12. What the applicant submitted at the hearing before me in relation to ground 1 does not disclose any jurisdictional error on the part of the Tribunal.  The submissions were directed to the merits of the applicant’s claims for protection. As I informed the applicant, this Court does not have jurisdiction to determine whether the applicant has a valid claim for protection.  The Court’s role is to determine whether, on the grounds set out in the application, the Tribunal dealt with the applicant’s case according to law.  As for ground 1, as stated in the application, it does not identify the aspects of the applicant’s claims about which the applicant alleges the Tribunal reached an adverse conclusion and which were not obviously open to the Tribunal on the known material.  For that reason alone, ground 1 does not disclose any jurisdictional error.

13. In any event, the ground is similar to the ground that was considered by the High Court in SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63; (2006) 228 CLR 152. The Court said (at [39]):

    If the issues on the review of the delegate’s decision by the Tribunal are identified no more particularly than by the question “is the applicant entitled to a protection visa?” rejection of some or all aspects of his account of the past events said to found his fears of persecution would self-evidently be a conclusion open to the Tribunal.  The conclusion would be open because every aspect of the applicant’s claim would be in issue in the Tribunal’s review of the delegate’s decision, but if the issues are to be identified more particularly, other questions arise.

14. What the High Court said in that passage applies to the circumstances of this case.  The delegate did not accept the applicant’s stated fear and claims for protection, although ultimately the delegate did not grant the applicants a protection visa because, even if the applicant’s claims are true, the reasons for which the applicant claimed fear of harm were not related to the Refugees Convention.  Thus, before the Tribunal, the issue that arose on the applicant’s application for review of the delegate’s decision was defined no more particularly than whether the applicant was entitled to a protection visa.  In those circumstances, rejection of some or all aspects of the applicant’s account of past events said to found his fears of persecution were self-evidently a conclusion that was open to the Tribunal.

15. Finally, and in any event, the Tribunal dealt comprehensively with the applicant’s evidence and gave reasons for not accepting that evidence.  The reasons the applicant gave were reasons it was reasonably open to it to have regard in assessing the applicant’s credibility; and the Tribunal’s decision not to accept the applicant’s credibility was one that was reasonably open to it for the reasons it gave.  The first ground therefore fails.

16. The second ground is:

    The Tribunal failed to consider an integer of the applicant’s claim in failing to consider whether or not the applicant in India was at risk of harm from [the boy’s] father and family not able to access effective protection.

17. At the hearing, in response to my invitation to make submissions in relation to ground 2, the applicant accepted that the Tribunal did consider whether the applicant was at risk of harm from the boy’s father and family.  The applicant, however, said that “they considered it but, because I did not have evidence, they did not consider it”.  The evidence to which the applicant appears to have intended to refer was evidence of his filing a complaint with the police in India.  The Tribunal did not appear to rely as a reason for not accepting the applicant’s evidence that he had failed to make a complaint to the police in India in relation to the matters he claimed occurred to him there.

18. In any event, even if the Tribunal did rely on the applicant’s not filing a complaint to the police, that does not mean the Tribunal did not consider whether the applicant was at risk of harm from the boy’s father and family.  Ground 2, as stated in the application and the submission the applicant made in support of it before me, are not arguable.  As my earlier summary of the Tribunal’s reasons shows, the Tribunal did consider the applicant’s claims that he feared harm from the boy’s father and from other members of the boy’s family.  The Tribunal, however, did not accept the applicant’s evidence.  Further, having concluded the applicant’s fear was not well-founded, the Tribunal was not obliged to consider whether state protection was available to the applicant.

19. The third ground 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.

    The applicant made no submission to me in support or in relation to this ground.  Ground 3 is a bald allegation which does not engage with any part of the Tribunal’s reasoning.  It does not disclose any jurisdictional error on the part of the Tribunal and therefore fails.

20. The fourth ground stated in the application is:

    The Tribunal’s decision was unjust and made without taking into account the full gravity of the applicant’s circumstances and consequences of the claim.

21. The only submission the applicant made to me in relation to this ground is that there were “many incidents where there would not be any evidence”.  Again, this appears to be a reference to the applicants not having filed a complaint with police in India.   As I have already noted the Tribunal did not appear to rely on the applicants not having filed their complaint to the police in India. Even if the Tribunal did rely on such a matter, that there are other cases of persons in the position of the applicant not having made complaints to police, would not render unjust the Tribunal’s reliance on such matters. 

22. In any event, a claim that a decision is unjust does not state a recognised ground of jurisdictional error.  To the extent the ground claims the Tribunal failed to consider the applicant’s claims, that ground cannot be made out.  The Tribunal considered the applicant’s claims but did not accept them.  As I have already said, it was reasonably open to the Tribunal not to accept the applicant’s evidence for the reasons it gave.

23. The fifth ground is:

    The Tribunal has failed to investigate the claim, especially the grounds of persecution in India.  Therefore the Tribunal decision, dated 9 June 2014, was a judicial error.

24. The applicant made no submission to me in relation to this ground.  This ground assumes the Tribunal had a duty to investigate the applicant’s claims.  The Tribunal, however, has no general duty to investigate matters that are raised by an applicant for a review.  At the most, the Tribunal has a duty to inquire about a critical fact, the existence of which may be easily ascertained (see Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR at [25]-[26]).  There is nothing in the material before me that indicates there was an alleged fact before the Tribunal whose existence could have been easily ascertained but about which the Tribunal failed to make any inquiry.

25. I therefore propose to dismiss the application and that the first applicant pay the Minister’s costs.  I also propose to order that the name of the second respondent be changed to the Administrative Appeals Tribunal.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 28 July 2015