SZUZN v Minister for Immigration

[2015] FCCA 3137

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUZN v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3137

Catchwords:
MIGRATION – Application for review of the decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider the applicant’s claims – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476, 477

Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259

Applicant: SZUZN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2443 of 2014

Judgment of: Judge Nicholls

Hearing date: 16 November 2015

Date of Last Submission: 16 November 2015

Delivered at: Sydney

Delivered on: 16 November 2015

REPRESENTATION

Applicant: In Person

Solicitors for the Respondents: Mr A Keevers of Sparke Helmore

ORDERS

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

2. The application made on 1 September 2014 is dismissed.

3. The applicant pay the first respondent’s costs set in the amount of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2443 of 2014

SZUZN

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 Act1958 (Cth) (“the Act”) on 1 September 2014, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), now known as the Administrative Appeals Tribunal, made on 1 August 2014, which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.

Background

1. In evidence before the Court is a bundle of relevant documents filed by the Minister (“the Court Book” – “CB”). The following relevant background can be ascertained from those documents.

2. The applicant is a citizen of India who arrived in Australia on 6 July 2009 on a spouse student visa. The applicant applied for a protection visa on 19 June 2013 (CB 1 to CB 26). The applicant’s claims to protection were set out in a written statement attached to his application (CB 27 to CB 29). The applicant claimed to fear harm if he were to return to India because he said he was a follower of a particular group called the Dera Sacha Sauda (“DSS”).

3. He claimed that he was the follower of a particular guru who the Tribunal identified, or referred to, as “Baba Ji”.  The applicant claimed that he had been a follower of DSS and the guru since 2007, and claimed that he had been attacked variously by Sikhs because of this.  His parents were Sikhs, but it was understood that his claims were that they were liberal in their attitude to matters of religion. 

4. In his written statement in support of the application, the applicant claimed to have come to the specific attention of young Sikhs, who told the applicant to cease his adherence to Baba Ji.  He said he was bashed when he refused to do so.  The police did not assist him, and his parents had to pay a bribe to secure his release from the police station so he could attend hospital.  The applicant also claimed that on another occasion he was approached by Sikhs and told to remove a locket which he wore as part of his following of Baba Ji.  He claimed to again have been beaten and hospitalised.

5. The applicant further claimed that in 2008 a meeting of the DSS congregation, and other worshippers, was attacked by Sikhs.  Police took some time in responding when called to do so, and the authorities assisted the Sikhs and put DSS followers, including the applicant, in jail.  Following his release, the applicant attempted unsuccessfully to go to Dubai.  His parents then arranged for him to go to Australia.  After arriving in Australia at one time he returned to India, but left for Australia again, because he said the police came looking for him, and he still feared harm from the Sikhs.

6. The applicant made further claims to the delegate. First, that in 2007 Sikhs forced their way into the applicant's house, beat him, and nearly killed him.  He went to the police, but he said they pressured him to leave Baba Ji in favour of the Sikh religion.  Second, he further claimed that in January 2008 a DSS congregation in a neighbouring village was attacked by Sikhs.  The applicant claimed to be present and was hit by stones, and subsequently hospitalised. 

7. Third, after arriving in Australia, the applicant returned to India in April 2012. He claimed he left because his wife in Australia was in the process of divorcing him. While in India, he was surrounding by Sikhs, who slapped him.

8. The delegate of the Minister refused the application for a protection visa on 17 December 2013 (CB 60 to CB 75). Essentially, the delegate did not find the applicant’s claims to be credible due to the “total inconsistency between the applicant’s written account and interview statements” (CB 67).

9. The applicant applied for review to the Tribunal on 13 January 2014 (CB 76 to CB 81). The applicant attended the hearing by video conference on 23 July 2014 (CB 92 to CB 94). The Tribunal set out, in its decision record, the applicant’s claims as they were before the delegate and before the Tribunal ([18] – [21] at CB 99 to CB 104). These claims included, in addition to what I have already outlined, that he had commenced following Baba Ji because he was attracted to his preaching that everyone was equal, and what was said to be Baba Ji’s disregard of the caste system.  The applicant claimed that he wore a turban and did not cut his hair because he followed Baba Ji.

10. The Tribunal further set out in its decision record, country information that was before it ([22] – [35] at CB 104 to CB 107). The Tribunal, in particular, had information before it regarding DSS. This was in the following terms ([22] – [24] at CB 104 to CB 105):

    “[22]    A dera is an ashram or temple that conducts social and educational activities. In recent decades, thousands of new deras have been established in Punjab, attracting both Sikhs and non-Sikhs in large numbers; in 2007 it was estimated that there were more than 9,000 deras in the 12,000 villages of Punjab.  One of the most popular and controversial deras in India is Dera Sacha Sauda (DSS).  DSS is a spiritual and social movement founded in 1948 by Shehenshahji Mastana, a Sikh originally from Balochistan. According to Himal South Asian, Mastana believed that Sikhism had strayed by allowing caste to re-establish itself within the religion. Mastana established the ashram ‘with an eye to social reform and spiritual purification - among the Sikhs in particular, but also others in general.’

    [23] The DSS website states that it has 44 ashrams across India and claims to have over forty million followers worldwide.  The Economist reported in 2007 that DSS had ‘some 400,000 followers, both Sikhs and members of the Hindu majority, mainly among the poor, illiterate, and lower castes.’ In 2007, BBC News reported that the DSS counted Sikhs, Hindus, Muslims and Christians among its followers, noting that ‘[m]ost of its followers are Dalits’.

    [24] The DSS website also outlines many of the core values and beliefs of the movement, such as ‘humanitarianism’, ‘selfless services’, rejection of dowries, ‘social evolution’, ‘eradicating social evils’ the provision of education to all, and the promotion of efficient organic farming.  The DSS claims to routinely perform ‘around 70 social welfare activities.’ Some of the programs listed on the DSS website include: the operation of a home for leprosy patients; the provision of wheelchairs to the disabled; the provision of financial aid to poor patients; the operation of a blood bank; the provision of financial assistance to poor students; and the provision of free legal aid. Other 'welfare activities’ include encouraging people to shun homosexuality; the ‘emancipation’ of prostitutes; the ‘promotion of vegetarianism’ and ‘helping young divorcee women getting married again.’”

    [Footnotes omitted.]

11. The Tribunal affirmed the decision of the delegate to refuse the applicant a protection visa (CB 96 to CB 113). The Tribunal saw the applicant’s credibility as the issue before it. The Tribunal found that the applicant was not a witness of truth and did not accept that he was ever a follower of DSS and Baba Ji ([38] at CB 108). The Tribunal provided reasons for this finding.

12. The Tribunal found that the applicant was “unable to provide much explanation of his own religious beliefs” ([41] at CB 108). Further ([39] – [41] at CB 108):

    “[39] The applicant could provide very little information regarding his claimed religion, Dera Sacha Sauda. When asked about its practices and beliefs the applicant would repeat a few simple phrases such as not lying or doing wrong to others, hard work and the importance of  reciting the naam given by Guru Ram Rahim Singh. When asked specifically what the teachings in DSS are he stated reciting the naam, working hard and taking as much time as possible to recite the naam. He was not able to expand upon these or explain their significance to the religion. Despite stating he had attended many DSS programs, seminars, satsangs and gatherings and had often listened to the preaching of Guru Rahim Singh, the applicant could provide very little information about the many practices and beliefs which form part of Dera Sacha Sauda.

    [40] The applicant was also not able to explain how the practices he outlined differed from those of the Sikh religion and he eventually acknowledged that the Sikh religion also incorporated them, apart from the reciting of the naam.

    [41] The Tribunal found that the applicant was unable to provide much explanation of his own religious beliefs. When asked if he had any religious beliefs he replied 'no, just Baba Ji'. When asked what he meant by this he gave a very vague and general response 'The things he told me and his sayings, I like those things.' When asked to describe his religion he reverted to repeating that Baba Ji gives a naam which the followers have to recite. When asked if there was anything more he could say about the religion the applicant repeated that Baba Ji preaches and tells them how to live and follow the religion and not to do wrong, without any additional detail. When asked if he considered Baba Ji's teachings a religion he replied yes. However he later stated it was not a religion, he just follows Baba Ji. The applicant stated he believes in God but was not able to say anything about the God he believes in. Instead he spoke of reciting the naam to 'get God' and of this giving peace of mind. When asked how peace of mind happened he did not directly answer but spoke of not doing anything bad to anyone and loving everyone. When asked what the importance of God was for him he again did not directly answer but stated that after death you go to hell or heaven.”

13. The Tribunal held that the applicant’s explanation of his “attraction” to DSS was “vague and insubstantial”. Further, that the applicant was unable to demonstrate a level of knowledge and understanding of DSS that would be expected of someone with his claimed involvement and dedication ([42] – [44] at CB 108 to CB 109).

14. The Tribunal found that the applicant’s knowledge of the practices of DSS was “minimal”. Further, that he had incorporated the teachings and practices of DSS into his life by reciting the naam, not drinking, and following Baba Ji. When asked if he had done any further “selfless of charitable works”, a substantial component of DSS teachings, he stated that there was “nothing else he could do” beyond this and that “these are all the things Baba Ji says” ([45] – [46] at CB 109).

15. The applicant stated that in Australia he only recited the naam and has no other activities as a follower of Baba Ji. He did not explain why he had not attempted to locate DSS groups in Australia and stated that he could not find such information on the internet, as he lived in a small town in the countryside, had no work rights and no car. The applicant further stated that he did not locate DSS adherents while he lived in Melbourne as his relationship with his wife was “tense”. The Tribunal found that the applicant’s evidence did not demonstrate that he had any real interest in DSS ([47] at CB 109).

16. The Tribunal found that the applicant was “vague and inconsistent” when speaking about the people who threatened him in India and about the threats and attacks he claimed to have experienced ([48] – [50] at CB 109 to CB 110).The Tribunal noted with the applicant the various inconsistencies within the applicant’s evidence as to the threats from Sikhs in India. The applicant stated, as to these inconsistencies, that when he lodged the visa application he was “quite upset and taking medication for tension and sleeplessness” ([51] at CB 110). The applicant also claimed that the inconsistencies at the Departmental interview were due to the fact that he “was tense and on medication so he missed saying many things” ([52] at CB 110).

17. Further, the Tribunal stated that it ([53] at CB 110):

    “… put to the applicant that it had credibility concerns about the claimed attacks on him because of the inconsistencies in his account and the applicant was silent. The Tribunal asked him if he had anything he would like to say and he responded with a question ‘Nothing matches?’ When the Tribunal stated very little seemed to match the applicant replied again that he was taking medication but stopped taking medication. The Tribunal asked him if he meant that because he had stopped taking medication his evidence before the Tribunal was unreliable. The applicant stated No, everything he had said to the Tribunal was true but his memory is affected as he gets anxious thinking he will be killed if he goes back to India. The Tribunal put to the applicant that it was difficult to understand how such inconsistences could be caused by the medication he took or anxiety and he replied that he is surviving in Australia with the help of his friends and if he goes back to India there is danger.”

18. The Tribunal found the applicant’s evidence about being threatened and beaten by Sikhs on his return to India in 2012 “vague”, “inconsistent” and unpersuasive. The Tribunal did not find it credible that the applicant encountered any problems from Sikhs when he returned in 2012. The Tribunal found that the version of events, as provided by the applicant, during his return in 2012 was different to what he had earlier provided and different to what he had initially said at the hearing. This was put to the applicant who “vaguely” stated that he “was just talking about things that happened when he was in India” ([54] – [58] at CB 110 to CB 111).

19. The Tribunal found that the applicant was “evasive” when he was talking about his, and his family’s connection, to the Sikh religion. He “seemed to go to lengths to be unclear” about his family’s religion, yet when asked specific questions about their practice, he would speak about their involvement in mostly Sikh related worship. Despite living his whole life in a Sikh community, the applicant denied following the Sikh religion, which was inconsistent with his evidence that he was threatened by Sikhs to “return” to the Sikh religion ([59] – [60] at CB 111).

20. The Tribunal found the applicant could also not reasonably explain why he dressed in a way which accords with “popular images” of Sikh men, and the way which he said that Baba Ji dressed which was to wear a beard and a black turban. When it was put to him that Baba Ji did not dress in traditional Sikh clothing, based on images of him available on the internet, the applicant stated that this was because “he shouldn’t dress the same was as” Baba Ji. The Tribunal found this response “directly opposite to his initial stated reason for why he wore his turban and beard”, which was the way Baba Ji dressed ([61] at CB 111 to CB 112).

21. The applicant was unable to provide a reason why it was clearly written in his visa application that he was of “Sikh religion”. Further, that the applicant’s explanation for returning to India in 2012, that he was “tense’ and “upset” from his divorce, undermined the applicant’s claim to fear for his life in India. Further, that the applicant’s claim that he thought he could return home without Sikhs finding out was “disingenuous” ([63] at CB 112).

22. The applicant’s evidence as to his delay in applying for a protection visa was inconsistent. When the Tribunal put to the applicant that his delay in applying for a protection visa may indicate that he may not fear harm in India, the applicant did not respond and was silent ([64] at CB 112).

23. The Tribunal held ([65] – [66] at CB 112):

    “[65] For the reason outlined above the Tribunal has serious concerns about the truthfulness of the applicant's claim to have become a follower of Guru Ram Rahim Singh (Baba Ji) and Dera Sacha Sauda. In sum the Tribunal considers the applicant could provide very little information about his claimed chosen dera and very little evidence and knowledge of its practice, and that this was at complete odds with the applicant's claimed devotion to the dera and his guru, his claimed frequent attendance at programs and gatherings, and claimed frequent listening to the preaching of his guru. The Tribunal is not satisfied on the evidence before it that the applicant has become a follower of Guru Ram Rahim Singh and Dera Sacha Sauda. 

    [66] As highlighted above the Tribunal found the applicant's evidence regarding claimed attacks and threats on him for joining DSS and following Guru Ram Rahim Singh very confused and contradictory.  The Tribunal is not satisfied these claims are credible.  The Tribunal does not accept that the applicant was ever attacked or threatened by Sikhs or police for joining Dera Sacha Sauda and following Guru Ram Rahim Singh, or for any other reason.”

24. The Tribunal was not satisfied that the applicant met the criterion at s.36(2)(a) or (aa) of the Act ([67] – [70] at CB 112 to CB 113).

Application before the Court

1. The grounds of the application to the Court were set out under the heading “grounds of application for extension of time” and under the heading “grounds of the application”. I did not understand the applicant to make an application for an extension of time, given that his application to the Court was made within the relevant period and he marked the box “no” in response to the question: “Does the applicant apply for an order that the time for making the application be extended under section 477” of the Act. I understood the grounds set out under both headings to relevantly be the grounds of the substantive application. The grounds are in the following terms:

   “1. The Tribunal made an Error of Law by not understanding or attempting to understand what a sikh is.

   2. The Tribunal made an Error of Law by not understanding what The Dera Sacha Saud and what a follower of Dera Sacha Saud is.

   3. The Tribunal made an Error of Law by not understanding the differences between Dera Sacha Saud and Sikhs

   4. The Tribunal made an Error of Law by not understanding the followers of Ram Raheme singh were also at risk as show by the independent information.”

2. The grounds were not particularised.

Before the Court

1. The applicant attended a first Court date on 15 October 2014 and was assisted by an interpreter in the Punjabi language. The applicant was given the opportunity, by orders made on that day, to file any further evidence by way of affidavit and any amended application.

2. The matter was set down for a final hearing today. Nothing further has been filed by the applicant. I note that the Minister has filed written submissions in this matter. The applicant appeared in person today and was again assisted by an interpreter in the Punjabi language.

1. When he was given an opportunity to speak to the Court, the applicant said he had nothing to say.  When pressed, the applicant stated that he had already put all his claims in the documentation.

Consideration

1. As I said to the applicant, for his application to succeed today not only would he need to assert some jurisdictional error on the part of the Tribunal, but the Court would have to find that such error was evident.  Having regard to the grounds of the application, I cannot see that any jurisdictional error arises.

2. Essentially, grounds one to three of the application seek to explain what is said to be the Tribunal's failure to understand Sikhism, DSS and the differences between the two.  The applicant did not give any explanation of his grounds to the Court today.  It is not clear what legal error of law the applicant seeks to invoke by these grounds. 

3. At a factual level, it is clear that the Tribunal understood there was a difference between Sikhism and DSS.  This is illustrated with that part of its reasoning directed to the applicant “dressing” as a Sikh man, while claiming to be a follower of Baba Ji, who appeared in photographs as dressing in a very different fashion (see [61] at CB 111).

4. It is clear, on a plain reading of the Tribunal's reasons, that the central element in its decision was based on the comprehensive rejection of the applicant's credibility and on the subsequent factual basis on which he claimed to fear harm. 

5. The Tribunal's conclusion was, and the many antecedent findings that informed that conclusion were, on what is before the Court, reasonably open to it on what had been put before it (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 (“Durairajasingham”)).  The Tribunal gave extensive reasons which arose, in great part, from the applicant's own evidence to it. 

6. In the circumstances, I can only see grounds one, two and three, as being simply an expression of disagreement with the Tribunal's relevant findings.  In all, these findings were made within jurisdiction and are not susceptible to review by this Court. 

7. The Minister submitted that the complaints in grounds one, two and three may be read as a complaint that the Tribunal's decision is illogical, or irrational, or not based on inferences of fact supported by logical grounds. 

8. In my view, it must be said that that is a generous reading of the applicant's grounds.  However, even if they were to be read that way, no such error is apparent on what has been put before the Court.  I agree with the Minister's submissions, and I note that the Minister's reliance on relevant authorities forms a basis for those submissions (MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123 at [42], Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 (2003) 198 ALR 59 at 67, Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at 20 and NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [130]-[139]).

9. The Minister also suggested that the grounds may be construed as a complaint that the Tribunal set itself up as an arbiter of religion, that is, an arbiter of religious doctrine, and thereby fell into error. However, I agree with the Minister that such a complaint cannot, in the circumstances presented, be made out. 

10. The applicant has not provided, despite the opportunity to do so, any evidence to challenge the Tribunal's account of what it said occurred at the hearing. That account reveals that the Tribunal tested the applicant's knowledge of DSS, and his claimed beliefs, in a manner which was a proper and legitimate exploration of these matters, in light of the claims that had been advanced. 

11. I particularly note that the Tribunal's account reveals that many of the relevant questions were open-ended and not based on any preconceived idea of what the applicant should believe to be accepted as an adherent of DSS.  In this regards, I agree with the Minister's reliance on what was said by the Full Federal Court in Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108. No legal error is revealed by the grounds in this regard.

12. Ground four asserts that the Tribunal fell into error because the Tribunal did not understand that the followers of Baba Ji were at risk in India, in light of available country information. This ground must be rejected.  As set out above, the Tribunal did have regard to relevant country information.  It is clear, if regard is had to paragraphs [22] to [36] of the Tribunal's decision record (at CB 104 to CB 107), that it understood that the followers of DSS had experienced harm in India. 

13. However, what the applicant's ground fails to understand was that the Tribunal found, for reasons that were reasonably open to it, that the applicant was not a follower of DSS or, indeed, of Baba Ji.  As I stated earlier, this was because of the Tribunal's comprehensive rejection of the applicant's credibility.  It is well settled that an adverse finding as to the credibility of an applicant's claims is a finding of fact made by the Tribunal (Durairajasingham). As long as the Tribunal gives reasons which are reasonably open to it, then this Court cannot intervene to change such findings of fact. 

14. In essence, therefore, the applicant's ground can only be seen as a challenge to the facts as found by the Tribunal, and it seeks for this Court to engage in impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259). Ground four also is not made out.

Conclusion

1. In all, the applicant’s grounds do not reveal jurisdictional error on the part of the Tribunal. The application to the Court should be dismissed. I will make an order accordingly.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 3 December 2015