SZUUU v Minister for Immigration

[2015] FCCA 2134

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUUU & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2134

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] HCA 39; (2009) 83 ALJR 1123

First Applicant: SZUUU

Second Applicant SZUUV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2063 of 2014

Judgment of: Judge Manousaridis

Hearing date: 29 July 2015

Delivered at: Sydney

Delivered on: 29 July 2015

REPRESENTATION

The first applicant appeared in person assisted by an interpreter.

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

ORDERS

1. The Administrative Appeals Tribunal be substituted for the Refugee Review Tribunal as the second respondent.

2. The application is dismissed.

3. The first applicant pay the first respondent’s costs set in the amount of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2063 of 2014

SZUUU

First Applicant

SZUUV
Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction

1. The applicants are citizens of India.  They seek judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicants’ Protection visas. 

2. The first applicant (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. 

Claims for protection

1. The applicant’s claims for protection are contained in a statement accompanying the applicant’s application for a Protection visa.  In that statement the applicant claimed as follows.  The applicant had two friends (A and B). A and B belonged to different religious communities.  A and B fell in love with each other. Their parents objected and A and B decided to elope. They sought the assistance of the applicant.  The applicant provided them with assistance.  He helped them get married and settle elsewhere in India.  The applicant also provided support to A and B for a couple of months until they got a new job in the new city. 

2. After A and B left the city in which they lived their parents began to investigate their whereabouts.  They attended the applicant’s house and place of work and asked him where they had gone.  After a few months A’s and B’s parents became aware that the applicant had helped A and B. The parents came to fight with the applicant and they also tried to harm him.  The applicant, however, managed to escape to his own city, Massana, where he had a business with his cousin.  Massana was close to Ahmedabad, being the city where A’s and B’s parents lived.  Both cities were close to each other, approximately 30 minutes away.  The applicant often had to go to Ahmedabad because of his job or other work.

3. When the applicant went to Ahmedabad he was afraid of A’s and B’s parents.  The applicant claimed that when the parents see the applicant they “always come to harm me and try to kill me” as the father has contacts with chief police officers and many others because of his political career.  The father tried to kill the applicant one night, but the applicant did not lodge a police report because he was scared that the police would inform the father and as a result the applicant would get in trouble. B’s father is very violent.  B’s father and B’s father’s friends tried to kill the applicant.  The applicant felt the only option available to him was to leave India.  The applicant applied for a visa and fled to Australia. 

Tribunal’s reasons

1. The Tribunal found the applicant was not a witness of truth and the account of events on which the applicant’s protection claims were based was false.  The Tribunal found that the evidence the applicant gave before the Tribunal was inconsistent with the claims the applicant made in his statement which accompanied his Protection visa application and with evidence he gave to the delegate.

2. One inconsistency related to the help the applicant claims he gave to A and B.  In his statement, as I have already noted, the applicant said he gave financial support to A and B for a few months after he helped them move to a new city.  Before the Tribunal, however, the applicant said that after A and B were married in his presence they stayed at his home for one or two days during which he gave the couple 500,000 rupees to help them settle elsewhere.  The applicant told the Tribunal he did not know where A and B went.  He said he thought they had gone overseas, but once they left his home he had no further contact with them. 

3. A second inconsistency related to the applicant’s claimed contacts with the families of A and B.  In his statement, as I have also already noted, the applicant said that the families of A and B went to the applicant’s home and place of work to question him about A and B. Before the Tribunal, however, the applicant did not say that both families went to his home looking for them, nor did he say that the parents had gone to the applicant’s workplace. 

4. A further inconsistency related to the applicant’s claimed knowledge of A and B.  Before the Tribunal the applicant said he did not know how A and B met.  Before the delegate, however, the applicant said that A and B met at the college where they were both studying.

Grounds of application

1. The application for review contains four grounds.  The first ground is:

   The Tribunal failed to accord “procedural fairness” to the applicants because of the little weight to give to the claim of applicants because of the applicant’s inconsistencies in the application for the protection visa.

   At the hearing before me the applicant, who was not legally represented, made no submission in relation to this ground. 

2. The first ground discloses no jurisdictional error. That the Tribunal gave little weight to the applicant’s evidence because of inconsistencies in the evidence the applicant gave does not constitute a failure to accord procedural fairness.  It was for the Tribunal to assess the credibility of the applicant and it was reasonably open to the Tribunal to conclude on the basis of the inconsistencies it identified that the applicant was not a witness of truth. 

3. The second ground stated in the application is:

   The Tribunal failed to consider an integer of the applicant’s claims in failing to consider whether or not the applicants was at risk of significant harm from [A’s and B’s] families and not able to access effective protection.

   The applicant made no submission in relation to this ground. 

4. The ground is not arguable.  The Tribunal considered the applicant’s claims but rejected them, because it did not accept the applicant was a witness of truth.  It was reasonably open to the Tribunal to so conclude for the reasons it gave.

5. The third ground stated in the application is:

   The Tribunal had no jurisdiction to make the said decision, because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act 1958.

6. The applicant made no submission in relation to this ground.  It too is not arguable.  The ground discloses no jurisdictional error.   It does not identify the “reasonable satisfaction” it is alleged the Tribunal held, or the provisions of the Migration Act 1958 (Cth) in accordance with which it is alleged the Tribunal did not come to hold this reasonable satisfaction.

7. The fourth ground is:

   The Tribunal has failed to investigate applicant claims, especially the grounds of persecution in India.  Therefore the Tribunal decision, dated 5 July 2014, was effected by actual bias constituting judicial error.

8. The applicant made no submission in relation to this ground.  The ground assumes the Tribunal was under an obligation to undertake its own investigations in relation to the applicant’s claims.  The Tribunal was under no such obligation.  At most, the Tribunal has a duty to enquire about a critical fact, the existence of which may be easily ascertained (See Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at [25] - [29]). The fourth ground in the application does not identify a critical alleged fact before the Tribunal, whose existence could have been easily ascertained but about which the Tribunal failed to make inquiry. Even if the Tribunal was under an obligation to undertake an inquiry but it failed to do so, that could not ground the inference that the Tribunal made its decision as a result of actual bias or in circumstances that might give rise to a reasonable apprehension of bias. In any event, there is no material that suggests the Tribunal made its decision as a result of actual bias or in a manner that might reasonably give rise to an apprehension of bias. The fourth ground in the application therefore also fails.

9. At the hearing before me, the applicant referred to his having stated to the Tribunal that A and B may have gone overseas.  The point the applicant appears to have intended to make is that it was unsafe for A and B to remain in India, so therefore it was unsafe for the applicant to remain in India.  That submission, however, discloses no jurisdictional error.  It is premised on the proposition that the Tribunal accepted, or ought to have accepted, that A and B had left the country.  The Tribunal, however, did not accept or find that A and B had left the country, nor is there any basis for suggesting the Tribunal ought to have accepted that A and B had left the country.  That is so not only because the applicant’s statement that A and B may have gone overseas could rise no higher than speculation, but, more fundamentally, because the Tribunal did not accept the applicant to be a witness of truth. 

10. For these reasons, therefore, I propose to order that the application be dismissed with costs.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 7 August 2015