SZVEE v Minister for Immigration

[2015] FCCA 3000

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVEE v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3000

Catchwords:
MIGRATION – Application under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) to dismiss an application for judicial review of a decision of the Refugee Review Tribunal – whether applicant has raised an arguable case for the relief he seeks – no arguable case for relief raised – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a)

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 424A

Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123
SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152

Applicant: SZVEE

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2681 of 2014

Judgment of: Judge Manousaridis

Hearing date: 3 November 2015

Date of Last Submission: 26 October 2015

Delivered at: Sydney

Delivered on: 3 November 2015

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondent: Ms N. Senanayake of DLA Piper

ORDERS

1. Pursuant to r. 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant pay the first respondent’s costs in the amount of $3,100.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2681 of 2014

SZVEE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The first respondent (Minister) seeks an order under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) that the application for review be dismissed because the application does not raise an arguable case for the relief it seeks.  By that application for review the applicant, who is a citizen of India, seeks judicial review of a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the Minister not to grant the applicant a Protection (class XA) visa.

2. I begin by describing the applicant’s claims for protection.  These were initially contained in his application for a protection visa in which he claimed he feared harm because he followed Dera Sacha Sauda (DSS).  The applicant claimed he joined DSS at the age of 15 because he felt a connection with the principles and teachings of the spiritual organisation and supported their humanitarian focus. 

3. In May 2007 the applicant was present at the headquarters of DSS during one of his regular visits when a violent clash took place between DSS followers and Sikh protestors. Bricks and “dangerous objects” were used as weapons and thrown by both groups, and buildings were burned.  The clash resulted in the death of a Sikh for which the Sikh protestors blamed the DSS followers.  In the course of the violence, the applicant was hit in the head by a brick and lost consciousness.  After being taken to hospital by a friend, the applicant was discharged the next day and was advised to seek further treatment from his family doctor. 

4. After returning home, the applicant was targeted by local Sikhs who believed he was “part of mob” that caused the death of the Sikh protestor.  The applicant was threatened and told that he would face consequences for his role.  The applicant tried to reason with the local Sikhs, explaining that it was a coincidence that he was at headquarters at this time and he had not taken part in the violence.  Ignoring his explanation, the local Sikhs told the applicant he would only be forgiven if he changed his religion, left DSS, and returned to mainstream Sikhism. 

5. The applicant reported the threats to the local police and then to the higher authorities, but they did not take any further action because the State Government is headed by the Akali Party “who is strong opponent of” the DSS. The ruling party gives anti-DSS organisations a “free hand to kill”, and forces followers of DSS to convert to Sikhism. 

6. The applicant also claimed he was attacked by members of Babbar Khalsa, a Sikh terrorist organisation, just outside his village when returning from the DSS headquarters.  The Babbar Khalsa members, who were equipped with guns, beat the applicant, mentally tortured him, and threatened that if he did not convert back to Sikhism they would kill him.  Pretending to follow their demands the applicant escaped without suffering any further harm. The applicant reported the incident to the police but again no action was taken. 

7. Before the applicant appeared before the Tribunal to give evidence and present arguments, the Tribunal provided to the applicant a notice pursuant to s.424A of the Migration Act 1958 (Cth) (Act) in which the Tribunal stated that crucial parts of the applicant’s claims were identical to those of another applicant before the Tribunal. In a letter dated 19 August 2014 the applicant asserted that this was not the case, that he was an active member of DSS, and that he had “written the genuine reason why I can’t go back to India.  I have not fabricated my claim for protection visa”.

8. Before the Tribunal the applicant said that in May or June 2007 he attended a DSS meeting where there were clashes and he was injured; that in about late 2008, about eight to nine months before his arrival in Australia, about five or six people from Babbar Khalsa stopped him “and told him to stop going to DSS meetings and supporting DSS or they would kill him”; the applicant had “been shunned by Sikhs”; he had been threatened; and he feared that if he returns to India he will be killed by Babbar Khalsa because they want him to convert his religion and are unhappy with the applicant’s father providing assistance to the DSS. 

9. The Tribunal did not accept as credible the applicant’s account of the circumstances which has led to his claimed fear of returning to India.  The Tribunal found the applicant had “fabricated an account of events upon which he had based his protection claims”. The Tribunal relied on a number of matters.  First, the applicant gave evidence that was not credible. In particular:

   (a)It was not credible to link, as the applicant did, his presence at DSS in May or June 2007 where clashes occurred and his being stopped and threatened in late 2008 by persons from Babbar Khalsa.

   (b)It was not credible that, despite having been attacked in late 2008 and threatened with death, the applicant resided in the family home.  The Tribunal considered this to be inconsistent with any genuinely held fear. 

   (c)The applicant gave vague evidence of his activity since he arrived in Australia, and did not mention he had any involvement with DSS in Australia. 

10. Second, the applicant had very little information about his claimed adherence to the DSS religion.  The Tribunal found the applicant was only able to repeat some simple phrases about helping people, the names of the gurus, the need to meditate and repeat the mantra, “there is one God” and people should not differentiate on the basis of religion or caste.[1] 

    [1] The Tribunal did not include the word “not”, I have assumed that the Tribunal omitted the word “not” in error – CB81, [24]

11. Third, the applicant’s account in his application for a Protection visa was in certain significant respects different from the account he gave at the hearing before the Tribunal. These differences included the following:

    (a)The applicant mentioned before the Tribunal, but did not claim in his application for a Protection visa, that his family in America were involved with DSS and it was also for that reason that the applicant feared harm if he returned to India.

    (b)The applicant did not say to the Tribunal that he lost consciousness during the incident in 2007, yet he made that claim in his application for a Protection visa.

    (c)In his application for a Protection visa the applicant said that, after the 2007 incident when he returned home, the Sikhs living nearby believed the applicant was part of the mob that resulted in the death of a Sikh and the Sikhs therefore verbally abused him.  Before the Tribunal, however, the applicant, when asked what happened after the 2007 incident, said that the Sikhs in his village treated him differently and ignored him.

    (d)In his application for a Protection visa the applicant claimed he had been attacked and beaten by five to six men from a terrorist organisation, yet when the Tribunal asked the applicant about any injuries he suffered he did not refer to any injuries other than the injury he claimed to have sustained in the 2007 incident.

    (e)Before the Tribunal, but not in his application for a Protection visa, the applicant claimed he had been involved in “many fights”.

12. Fourth, although the applicant arrived in Australia in 2009 he did not apply for a protection visa until September 2013. 

13. Fifth, the applicant’s almost identical claims with those made by another applicant indicated to the Tribunal that the applicant had colluded in his preparation of his application for a Protection visa. 

14. The Tribunal, therefore, did not accept the applicant or his family have been or are followers of DSS, that the applicant or his family have been imputed as being followers or believers in DSS, that the applicant suffered threats or harm because of his claims or imputed religious involvement at the hands of Sikhs, Babbar Khalsa or any other person or organisation, or that the applicant has ever reported any such threats to the authorities who have taken no action. While the Tribunal accepted that the applicant has a small mark on his chin, it did not accept, on the basis of the adverse credibility findings it made against the applicant, that the mark is there for reasons he claimed. 

15. The Tribunal concluded that the applicant was not a person in respect of whom Australia has protection obligations pursuant to s.36(2)(a) of the Act because the Tribunal was not satisfied that the applicant was ever subjected to harm due to his following DSS, that he or his family were of any interest to anti-DSS groups or that he would not face harm in the reasonably foreseeable future if he were to return to India. It therefore also found the applicant did not satisfy s.36(2)(aa) of the Act and for that reason also was not a person to whom Australia owed protection obligations.

16. I now turn to the grounds of review stated in the application that the applicant filed with this Court.  That application contains three grounds.  The first is:

    The Tribunal failed to consider an integer of the applicant’s claims, in failing to consider whether or not the applicant in India was at risk at harm from Babbar Khalsa (Sikh Terrorist Organisation) and not able to access effective protection.

17. In response to my invitation that he make submissions in relation to this ground the applicant, who is not legally represented, submitted that Babbar Khalsa had become quite active in the Punjab region.  The applicant also submitted that there are other organisations that have become active by creating big propaganda.  In that regard, he mentioned Dera Sacha Sauda. 

18. These submissions do not address ground one as stated in the application. In any event, they raise no arguable case for relief as they are submissions in support of a claim that he is entitled to protection.  As I informed the applicant, it is not the role of this Court to determine whether he has a valid claim for protection.

19. Turning to ground 1 stated in the application, I am of the opinion that ground is not arguable.  As my summary of the Tribunal’s reasons demonstrates, the Tribunal considered the applicant’s claims, and as a result of that consideration, was not satisfied the applicant was a credible witness.  It was reasonably open to the Tribunal to so conclude, and for the reasons it gave.  Given the Tribunal was not satisfied the applicant was a credible witness, there was no factual foundation on the basis of which the Tribunal was required to consider, whether the applicant was “at risk of harm from Babbar Khalsa (Sikh terrorist organization), and not able to access effective protection”.

20. The second ground of review stated in the application is:

    The Refugee Review Tribunal denied the applicant procedural fairness by reaching adverse conclusion that applicant claims were implausible, being conclusion that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.

21. In response to my invitation to the applicant to make submissions on this ground, the applicant said that the Tribunal decided with haste, and without further investigation, the current circumstances in India.  The applicant submitted that the Tribunal should have given a proper consideration of the situation in the Punjab, and, had the Tribunal done so, it would have arrived at a different conclusion. 

22. The applicant’s submissions do not address ground 2 stated in the application.  Instead, they contain two submissions. The first is that the Tribunal ought to have undertaken an investigation.  This is not arguable.  The Tribunal has no general duty to investigate matters that are raised by an applicant for a review.  At 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 1123 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 an inquiry.

23. The second submission made by the applicant is that the Tribunal did not properly consider the situation in the Punjab.  It is true that the Tribunal did not consider the situation in the Punjab.  Given the adverse credibility findings it made in relation to the applicant, however, there was no need for it to do so.  It is therefore not arguable that the Tribunal made a jurisdictional error by not considering the situation in the Punjab.

24. I return to ground 2, as stated in the application.  That ground is not arguable.  The delegate did not accept the applicant’s claims because the applicant did not appear before the delegate, and the delegate therefore was unable to explore the applicant’s claims.  That meant that the issue before the Tribunal was no more particular than whether the applicant was entitled to a protection visa.  In those circumstances, as the High Court said in SZBEL v Minister for Immigration and Multicultural Affairs:[2]

    Rejection of some, or all, aspects of [the applicant’s] 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 particularity, other questions arise.

    [2] SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152 at [39]

25. The issues were not defined more particularly, so therefore other questions did not arise.  In any event, from the Tribunal’s reasons for decision, it is apparent the Tribunal put to the applicant the matters which led the Tribunal not to accept the applicant as a credible witness. 

26. The third ground stated in the application is:

    The Tribunal failed to investigate applicant claims, specifically the grounds of persecution in India.

27. The applicant before me made no submission in relation to this ground, stating that he had already made a submission to that effect.  That is obviously a reference to the submission he made in relation to ground 2, which I have set out already.  For the reasons I have given already, it is not arguable that the Tribunal made any jurisdictional error by failing to undertake any investigation in relation to the applicant’s claims.

28. Finally, in addition to the grounds stated in the application, the applicant made the following statements in the affidavit he filed with his application:

    I was an active member of DSS.  The Sikh Fundamentalists – Fundamentalists Group threatened to kill me.  The Tribunal decision was unjust and was made without taking into account the full gravity of my circumstances and the consequences of the claim.

29. The first two statements repeat the claims the applicant made before the Tribunal in support of his application for a Protection visa, and, by themselves, raise no arguable case of jurisdictional error.  The third sentence is a claim to the effect that the Tribunal did not take into account the full gravity of the applicant’s circumstances. That submission assumes as true the claims the applicant made in support of his application for a Protection visa.  The Tribunal, however, did not accept those claims because it did not accept the applicant to be a witness of truth.  There is therefore no arguable case that this Tribunal made a jurisdictional error in not being satisfied the applicant was a witness of truth.

30. For these reasons, therefore, I am satisfied the application filed in these proceedings raises no arguable case for the relief it seeks. I propose, therefore to make an order dismissing the application pursuant to r.44.12(1)(a) of the FCC rules.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  9 November 2015