SZUTZ v Minister for Immigration & Border Protection
[2014] FCCA 2738
•20 November 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUTZ & ANOR v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2014] FCCA 2738 |
| Catchwords: PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed. |
| Legislation: Migration Act 1958 (Cth) s.36 Federal Circuit Court Rules 2001 (Cth) rr.44.12, 44.13 |
| Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 |
| First Applicant: | SZUTZ |
| Second Applicant: | SZUUA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2032 of 2014 |
| Judgment of: | Judge Emmett |
| Hearing date: | 20 November 2014 |
| Date of Last Submission: | 20 November 2014 |
| Delivered at: | Sydney |
| Delivered on: | 20 November 2014 |
REPRESENTATION
| The applicants appeared in person with the assistance of an interpreter. |
| Solicitor for the Respondents: | Ms Louise Buchanan (Australian Government Solicitor) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2032 of 2014
| SZUTZ |
First Applicant
| SZUUA |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application by the applicants pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), for an order requiring the respondent to show cause why the Court should not grant the relief sought in the application filed on 21 July 2014. The application otherwise seeks judicial review of a decision of the Refugee Review Tribunal dated 26 June 2014 (“the RRT”).
Rule 44.12 of the Rules provides as follows:
“(1) At a hearing of an application for an order to show cause, the Court may:
(a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or
(b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or
(c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.
(2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”
Relevantly, r.44.13 of the Rules provides:
“(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”
On 4 November 2014, the applicants attended a directions hearing before me. I explained to the applicants that this Court has no power to interfere with the decision of the RRT unless the Court is satisfied that the decision is affected by a mistake that goes to the jurisdiction of the RRT. I also explained to the applicants that the grounds of the application made various assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court. I also explained to the applicants that in circumstances where the grounds of the application did not raise an arguable case for the relief claimed, the application may be dismissed, pursuant to the Rules.
At the directions hearing, the applicants were provided with a copy of the applicable costs schedule of the Court and I explained to the applicants the consequences that may flow to them if a costs order was made against him. Namely, that whilst any costs order remains unpaid, it becomes a debt to the Commonwealth of Australia. As such, the applicants’ ability to obtain any other type of visa or re-enter Australia may be significantly affected.
The applicants confirmed that they wished to continue with the application for judicial review of the RRT’s decision. The applicants were given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the RRT hearing, by 14 November 2014. The applicants were also directed to file and serve written submissions in support of the grounds of their application by 14 November 2014.
At the directions hearing, the applicants were provided with the contact details of legal services providers and interpreting and translation services in documents headed in their own language.
The matter was listed for today for a hearing pursuant to r.44.12 of the Rules, a copy of which was given to the applicants.
The applicants were unrepresented before the Court this morning, although had the assistance of a Malayam interpreter.
The first named applicant confirmed that the applicants relied on the grounds of the application in their initiating application seeking judicial review of the RRT’s decision, filed on 21 July 2014. Those grounds are as follows:
“1. The Tribunal failed to consider properly the test whether the applicants would suffer serious harm as per sec.91R(2)(a) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do), if they asked to relocate in India. The Tribunal failure to satisfy this statutory obligation was a serious jurisdictional error caused by the Tribunal.
2. The Refugee Review Tribunal denied the Applicants procedural fairness by reaching adverse conclusions that the applicants claim were implausible, being conclusion that were not obviously open on the known material, without giving the applicants the opportunity to be heard in respect of those matters.
3. The Tribunal failed to accord “procedural fairness” to the Applicants because of the little weight it gave to the claims of applicants because of the applicant’s inconsistencies in the application for a protection visa.”
Each of the grounds was interpreted for the applicants and the applicants were invited to say whatever they wished in support of those grounds.
The first respondent, in written submissions, summarised the background of the applicants’ claims and the RRT decision as follows:
“4. The applicants are husband and wife and are from Kerala, India. On 29 April 2013, the first named applicant (the applicant) lodged an application for a Protection visa, with the second named applicant included in the application as a member of his family unit.1 On 16 December 2013, the applicant was interviewed by a delegate of the first respondent and on 18 December 2013, the applicants were refused Protection visas. 2 They applied for review to the Tribunal on 14 January 20143 and on 25 June 2014, they attended a hearing before the Tribunal4, however only the applicant gave oral evidence. The second applicant relied entirely on the applicant’s claims. On 26 June 2014, the Tribunal affirmed the decision not to grant the applicants Protection visas.5
5. The applicant’s protection claims were initially outlined in his statutory declaration annexed to the application.6 In summary, the applicant claimed to be a devoted Christian, an active member of the Kerala Catholic Youth Movement (KCYM), that he feared harm in India by Hindu extremists because he was accused of converting Hindus to Christianity due to the charitable work he undertook as a member of the KCYM, and that the situation worsened when he married a Hindu woman who converted to Christianity, forcing him to flee to Israel in 2001. In Israel, the applicant continued evangelising however the Hindu extremists found out about this and organised for him to be stabbed. He returned to India on October 2003 and continued his church activities but later travelled to Japan. He returned to India in April 2011 and was forced to go into hiding for 14 months because the Hindu extremists were looking for him.
Tribunal Decision
6. The Tribunal found that the applicant was not a witness of truth.7 It found that the applicant had provided inconsistent evidence about when he was attacked by the Hindu extremists, his wife’s conversion to Christianity, and whether he had complained about his fear of the Hindu extremists to the Indian authorities. The Tribunal noted the following inconsistencies:
– Whilst to the delegate, the applicant claimed he was attacked only once before travelling to Israel (with the attack occurring 4 to 5 days after his marriage)8, to the Tribunal he claimed he was attacked firstly in 2001 when Hindus set fire to his church and secondly, the day after his marriage when they set his family home on fire.9 The Tribunal rejected the applicant’s explanations for the inconsistency, namely that there was an error in interpretation and that he misunderstood the delegate’s question on the issue.10
– The applicant stated in his statutory declaration that his marriage incited the Hindus and caused riots, with mobs going on a rampage for days, however he omitted this in his oral evidence to the Tribunal. The Tribunal rejected the applicant’s explanation for the inconsistency, which was that his statement was typed by a friend.11
– To the delegate, the applicant claimed that his wife converted to Christianity before they were married, however to the Tribunal he claimed that she converted about 4 years after the marriage. The Tribunal again did not accept the applicant’s explanation that his evidence differed because his wife temporarily converted to Christianity so that they could marry, noting that the applicant had failed to mention to the Tribunal the temporary conversion although the issue of her conversion was discussed extensively at the hearing.12
– Whilst the applicant claimed to the delegate that he complained to the authorities about his personal problems with the Hindus after his return from Israel, to the Tribunal he claimed he never made any complaints to the police.13
7. The Tribunal also had concerns about the applicant’s account of his actions after fleeing from India in 2001, noting the following:
– Having initially fled to Israel and later to Japan to avoid harm, the applicant did not seek protection in those countries or elsewhere but returned to India.14
– Upon return to India from Israel, he lived in a town which was only four hours from the state of Kerala, where he had experienced difficulties with the Hindus15 and upon his return from Japan, lived in towns which were all located in the state of Kerala.16
– the applicant resumed his religious activities (the same work he had done before travelling to Israel), presented a petition to the authorities and protested against attacks on churches, whilst being aware that Hindus in his home town, who were allegedly able to track him down in Israel and have him attacked whilst in Israel, were looking for him.17
8. In light of the above, the Tribunal concluded that the applicant was not a witness of truth and that his claims for protection had been manufactured.18 The Tribunal rejected that the applicant’s home had been attacked by Hindu extremists, that he was attacked in Israel, and that the Hindus wanted to kill him.19 Whilst the Tribunal accepted that the applicants were Catholics, it rejected that the second applicant was originally Hindu or was of adverse interest to Hindus or to anyone in India.20
9. The Tribunal considered whether the applicants would suffer serious harm in India due to their Christianity and ultimately found such risk to be remote. Whilst the Tribunal noted that Christianity was a minority religion in India, it considered that India’s political, social and cultural environment provided mechanisms to address violations of religious freedoms.21
10. The Tribunal concluded that the applicants could not be granted protection visas either on Refugee Convention grounds22 or under the alternative criterion at s 36(2)(aa) of the Act.23”
The solicitor for the first respondent, Ms Buchanan, read the first applicant’s affidavit, filed on 21 July 2014, annexing a copy of the RRT’s decision record.
The first applicant confirmed that Ground 1 was intended to contend that the issue of relocation was not explored by the RRT. The first applicant confirmed that that was the complaint intended by Ground 1.
At the heart of the RRT’s decision to affirm the decision of a delegate of the first respondent, were its adverse credibility findings in respect of the applicants.
The RRT’s decision record makes clear that the RRT had significant concerns about various inconsistencies in the evidence of the first applicant. The RRT put its concerns to the applicant and noted the applicant’s responses. Ultimately, the RRT found that the first applicant was not a witness of truth and that the account of events on which his protection claims were based was false. The RRT noted the first applicant’s response to matters put to him, was that he could not answer everything and got confused.
The RRT found that that explanation did not explain or excuse the concerns of the RRT held about the first applicant’s credibility and found that the first applicant was well able to comprehend the RRT’s questions and respond to them. Ultimately the RRT comprehensively rejected the claims by both applicants of being adverse interest to Hindus or anyone else in India because of their marriage. The RRT found there was no credible evidence before it that the either applicant had ever suffered harm in India and that there was no credible evidence before it that any person or group in India wish to harm them.
The RRT further found there was no credible evidence as to why either of the applicants did not wish to return to India. The RRT noted that the first applicant told the RRT that his wife, the second applicant, was not at risk of harm in India and the only ground on which he feared harm was from Hindus based on events he claimed occurred when in India, those events having been found by the RRT to be false.
Nevertheless, the RRT considered whether the applicants would be at risk in India on the grounds that they are Christians and concluded that based on available country information, the risk of either applicant suffering serious harm on the ground of their religion or any other ground is remote. In the circumstances, the RRT concluded that the applicants did not satisfy the refugee criterion under either s.36(2)(a) or the complementary protection criterion under s.36(2)(aa) of the Migration Act 1958 (Cth).
The RRT’s findings would appear to be open to it on the evidence and materials before it, including its adverse credibility findings. Credibility findings are a matter par excellence for the RRT (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
In circumstances of comprehensive adverse findings and rejection of the applicants’ claims to have suffered harm in India or to be at risk of harm in India, there was no obligation on the RRT to consider the issue of relocation (see Randhawav Minister for Immigration, Local Government and Ethnic Affairs (1994) 125 ALR 265).
To the extent that Ground 1 appears to be a complaint that the RRT did not consider whether serious harm would be suffered by the applicants, such a complaint does not appear to be made out in the RRT’s decision record. The RRT clearly understood its obligations in considering whether the applicants met the refugee criterion or the complementary protection criterion. The RRT has set out the relevant law correctly.
In the circumstances, Ground 1 does not appear to have any prospect of success and does not appear to raise an arguable case.
Grounds 2 and 3 appear to be complaints that the applicants were denied procedural fairness. At the heart of the complaints about the denial of procedural fairness appear to be the failure of the RRT to accept their evidence. There is nothing to suggest that the RRT’s findings were not open to on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. As stated above, credibility findings are a matter par excellence for the RRT.
Further, the RRT was not obliged to accept uncritically the claims and evidence of the applicants (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the RRT have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).
It is clear from the RRT’s decision record that the concerns that the RRT had about various inconsistencies in the applicant’s evidence were put to the applicant and an opportunity to respond was given. The RRT noted the responses, but was not satisfied by the explanation offered. Otherwise, there is nothing to suggest that the RRT failed to comply with the obligations under the relevant parts of the Migration Act 1958 (Cth) in conducting its review.
In support of this application this morning, a document was sent through to the first respondent by the applicant. Such a document was not filed. However, the first respondent appears to have filed the document on behalf of the applicants. The first applicant confirmed to the Court this morning that he relied on that document that had been filed by the first respondent on 17 November 2014. The first two and a half pages of the document are headed “Supporting Statement from the Applicant” and are no more than a restatement of the applicant’s claims to fear harm in India.
The other documents annexed to the Statement were confirmed by the applicants to be documents that were not provided to the RRT and, indeed, they all post-date the RRT’s decision record. On that basis, their tender was objected to by the first respondent and rejected by the Court.
While I make no final decision as to whether or not the RRT’s decision is affected by jurisdictional error, none is apparent on the face of the decision record. The RRT referred to the relevant law and affirmed the decision under review. There appears to be nothing on the face of the decision record to suggest that those findings were not open to the RRT on the evidence and material before it and for the reasons it gave.
The applicants have not identified any error on the part of the RRT that is capable of establishing jurisdictional error on the part of the RRT.
In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, the proceeding before this Court, commenced by way of application on 21 July 2014, should be dismissed pursuant to r.44.12(1)(a) of the Rules, with costs.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 27 November 2014
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