SZVFB v Minister for Immigration

[2015] FCCA 2420

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVFB v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2420

Catchwords:
MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.424A, 425, 425A

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; [2003] HCA 26
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405; [2000] HCA 1
SZLPI v Minister for Immigration and Citizenship [2008] FCA 1841

Applicant: SZVFB

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2754 of 2014

Judgment of: Judge Barnes

Hearing date: 25 August 2015

Delivered at: Sydney

Delivered on: 25 August 2015

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.

2. The application be dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2754 of 2014

SZVFB

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal dated 11 September 2014, affirming a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.

2. The Applicant, a citizen of India, arrived in Australia in April 2013 on a tourist visa which was to expire on 13 July 2013.  On 8 July 2013 he applied for a protection visa.  In a written statement in support of his protection visa application he claimed that he was a Muslim and feared harm in India arising from an altercation with a named person [Mr ‘K’], said to be a prominent member of the Rashtriya Swayamsevak Sangh (“RSS”), an extremist Hindu nationalist paramilitary group.

3. The Applicant claimed that on 5 August 2012 he was involved in a motorbike accident with Mr K, that he and Mr K had an argument which attracted a crowd and developed into a brawl and that Mr K fell over and was injured.  He claimed that about 15 Hindus surrounded and attacked him but that Muslim youths came to his aid.   He claimed that the police had to restore order after the resulting riot and that the police took him and Mr K to the police station, mediated and sent them home without laying any charges.

4. In addition, the Applicant claimed that on 6 August 2012 a group of about 10 thugs armed with machetes and iron rods attended his house, assaulted his brother, caught and dragged him outside, kicked him and tried to douse him with petrol, but that he managed to escape after crowds gathered with sticks.  The assailants also escaped.  He went to the police station to lodge a complaint.  He claimed the police seemed not to care and threatened him for disturbing the peace.  He returned to Thailand where he had lived for some 10 years.

5. The Applicant claimed he again returned to India on 9 December 2012 to visit his family and that on 15 December 2012 Mr K and six thugs came to his house to attack him.  He was not at home but claimed they threatened to kill him.  The Applicant claimed he lodged a written complaint with the police. He claimed he stayed with a relative and then with a friend but that on 25 December 2012, Mr K and five of his thugs appeared at the friend’s house, forced their way in and attacked him and the friend until neighbours gathered and the assailants left.  He claimed he required and received medical treatment for head injuries.

6. The Applicant claimed that after he lodged a police report at the Commissioner’s office (where he was told that such matters were local issues to be dealt with at the local level) he returned to Thailand to save his life.

7. The Applicant also claimed to fear harm in Thailand arising from an incident in which he gave a Muslim man a lift, they were stopped at a police checkpoint and the Thai Muslim man ran off.  He claimed that the police searched his vehicle and found money he had from a business transaction and a bag containing a gun that belonged to the passenger.  He claimed he was accused of aiding and selling weapons to the Pattani Muslim Insurgents, but that he managed to escape police custody while being transported to the anti-terrorist unit in Bangkok and then came to Australia to save his life.

8. The Applicant was invited to attend a Departmental interview.  The delegate recorded that he did not attend.  The delegate refused the application and the Applicant sought review by the Tribunal.

9. The Applicant was invited to and attended a Tribunal hearing.  The only evidence before the Court of what occurred in that hearing is the Tribunal’s account in its reasons for decision. 

10. In its reasons for decision the Tribunal set out the claims made in the Applicant’s written statement.  It also set out in some detail the Applicant’s evidence and issues raised by the Tribunal at the Tribunal hearing.

11. The Tribunal found the Applicant was a national of India.  However, it did not find his evidence to be credible.  It gave several reasons for such finding, in particular that his evidence was implausible, fanciful and contradictory.  It gave examples, such as his claim that he was able to escape the group of thugs who attended his house on 6 August 2012 with machetes, iron rods and who had dragged, kicked and beaten him and his claim that he and his friend were able to escape from six thugs who attended the friend’s house on 25 December 2012, despite the fact that these attackers were also carrying machetes and iron rods.

12. The Tribunal found that the Applicant’s evidence in relation to where his wife was staying at relevant times was contradictory.  It considered but did not find his explanation for the inconsistency convincing.  The Tribunal also had regard to a contradiction between the Applicant’s evidence that while he had tried to lodge a complaint at several places the authorities had failed to act due to their allegiance with Hindu groups and country of origin information quoted in the delegate’s decision to the effect that India had a reasonably effective and impartial police and justice system and was governed by the rule of law.

13. The Tribunal also took into account the delay between the Applicant’s arrival in Australia and his protection visa application.  It did not find his evidence (that he did not know how to proceed and was getting information from different people, but that no-one in his community or mosque could help him) to be convincing, particularly given his evidence about other assistance he had obtained.  It found the Applicant’s failure to lodge a protection visa application at an earlier time indicated that he did not have a genuine fear of persecution.

14. Overall, the Tribunal found that the Applicant was not credible and that he had fabricated all his claims for the sole purpose of prolonging his stay in Australia.  It concluded that he did not have a well-founded fear of persecution for a Convention reason.  In making that finding, the Tribunal acknowledged that the Applicant had referred to riots that occurred 10 years earlier in India, but found that no further claims were made or established on those grounds.  It was not satisfied that the Applicant had a well-founded fear of serious harm or persecution in the foreseeable future based on his religion or for any other Convention reason.

15. While the Tribunal had assessed the Applicant’s claims in relation to India, it also observed that it did not accept his evidence that he was detained and arrested in Thailand and/or accused of terrorism or related charges.  Based on the Applicant’s lack of credibility, his contradictory evidence in relation to whether or not he was of interest to the Thai authorities, and the fact that he departed Thailand using a genuine passport via legal channels, the Tribunal found that the Applicant had fabricated this evidence for the sole purpose of pursuing a protection visa application.

16. Given that it did not accept any of the Applicant’s claims to have suffered harm in India at the hands of the RSS or any other individual or group or any of his claims regarding being detained in Thailand and had found he had fabricated all of his claims, the Tribunal found that he did not meet the complementary protection criterion in relation to his return to India.

17. The Tribunal affirmed the decision not to grant the Applicant a protection visa.

18. The Applicant sought review by Application filed in this Court on 3 October 2014.  He filed a supporting affidavit which merely repeated one of those grounds.  There are four grounds in the Application.  The Applicant did not file written submissions, but made oral submissions today.

19. It is convenient to consider first the grounds in the Application.  The first ground is that the Tribunal constructively failed to exercise its jurisdiction.  The particulars to this ground are that the Tribunal “failed to consider an integer of the Applicant’s claims, in failing to consider wether (sic) or not a liberal Muslim in India was at risk of harm from radical Hindus, and not able to access effective protection.”

20. When given the opportunity to elaborate on this ground, the Applicant took issue with the Tribunal’s failure to accept aspects of his claims. 

21. The claims the Applicant made in essence arose out of and followed his claimed altercation with Mr K, who was said to be a member of the RSS.  He also made claims in relation to events in Thailand.  However there is nothing in the material before the Court to indicate that the Applicant expressly advanced a claim to fear harm as a liberal Muslim.

22. The Tribunal understood that at the hearing the Applicant had referred to riots that occurred some 10 years previously.  In its account of the hearing the Tribunal recorded (at [26]) that after the Applicant said the current Prime Minister was a Premier in an area where approximately 3000 Muslims had been killed by the RSS 10 years earlier, the Tribunal had asked him if he wanted to make a more general claim or had anything more specific to which he wished to refer.  However the Applicant’s response was simply that he was requesting shelter for his life.

23. It has not been established that the Tribunal failed to make a finding on a substantial, clearly articulated argument relying upon established facts in the sense considered in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; [2003] HCA 26 or that the material before the Court was such as to clearly raise a claim that the Applicant feared harm as a liberal Muslim from radical Hindus in the sense considered in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263.

24. This ground also asserts that the Tribunal failed to consider a claim that the Applicant was not able to access effective protection.  However as the Tribunal found that all of the Applicant’s claims were fabricated and hence that there was no well-founded fear of future harm, it was not necessary for it to go on and address the issue of state protection (see SZLPI v Minister for Immigration and Citizenship [2008] FCA 1841). This ground is not made out.

25. The second ground in the Application is that the Tribunal had no jurisdiction to make the decision “because its reasonable satisfaction was not arrived [at] in accordance with the provisions of the Migration Act”. Insofar as this amounts to a contention that the Tribunal failed to comply with the procedural obligations in Division 4 of Part 7 of the Migration Act 1958 (Cth) (the Act), such a claim is not made out on the material before the Court.

26. There is nothing in the material before the Court to indicate that there was any information that the Tribunal had to put to the Applicant pursuant to s.424A of the Act. Nor is there anything in the material before the Court to indicate that the Tribunal failed to comply with its obligation under s.425 of the Act to invite the Applicant to give evidence and present arguments in relation to the issues arising in relation to the decision under review.

27. The Applicant was invited to a Tribunal hearing. On its face, the letter of invitation complied with the obligations in s.425A of the Act. The Applicant responded to the hearing invitation and he attended the Tribunal hearing.

28. The Applicant raised an issue in oral submissions to the effect that at the Tribunal hearing he had insufficient time and opportunity to raise all of the claims which he wished to raise.  He submitted that the Tribunal hearing was unduly short and that the time was limited.  He complained that because his evidence had to be translated by an interpreter in short blocks he lost the opportunity to elaborate or forgot what he was going to say.  He suggested that if the hearing had gone on for three more hours he would have been able to put all his claims.

29. Whether this contention raises an issue about the need to put dispositive issues to an applicant in compliance with s.425, a more general procedural fairness issue or an issue in relation to the standard of interpreting, no jurisdictional error is established on the material before the Court.

30. There is no transcript of the Tribunal hearing in evidence.  On the evidence before the Court, no jurisdictional error arising from the adequacy of the interpretation at the Tribunal hearing is made out.  The evidence in the Court Book reveals that the Tribunal hearing was conducted with the assistance of an interpreter and that the hearing commenced at 11.03 am and concluded at 12.30 pm.  Contrary to the Applicant’s claim that he did not have the opportunity to put all his claims at the hearing, as set out above, the Tribunal recorded that when the Applicant raised the issue of Muslim riots some 10 years previously, it asked him if he wanted to make a more general claim or had anything more specific to refer to and he merely said he requested shelter for his life.  Moreover the Tribunal also recorded that at the end of the hearing it asked the Applicant if there was anything else he would like to say, to which the Applicant stated that he did not have anything else to say. 

31. There is nothing in the evidence before the Court to establish or raise concern about whether or not the Applicant was afforded the opportunity required under s.425 of the Act to give evidence and present arguments in relation to the issues arising in relation to the decision under review.

32. I note in that respect that it appears from the Tribunal’s account of the hearing (and there is no evidence to the contrary) that the Tribunal raised with the Applicant a number of concerns it had in relation to aspects of his claims and his evidence, thus addressing dispositive issues.  The Applicant was given the opportunity to respond and the Tribunal had regard to such evidence.

33. Insofar as the Applicant asserted that he did not understand that he would have the onus in relation to this aspect of his case, he was given the opportunity (in the directions made on 29 October 2014) to file any transcript of a Tribunal hearing.  He did not do so. 

34. Ground 2 is not made out.

35. Ground 3 is that the Tribunal’s decision was “unjust and made without taking into account the full gravity of the applicant’s circumstances and consequences of claims” and that the Tribunal “did not consider the applicant’s (sic) who had been under immense and intimidating pressure from Hindu extremists.”

36. The difficulty that faces the Applicant in relation to this ground is that the Tribunal did not accept as credible any of his claims about past events he claimed to have experienced, including from Hindu extremists. 

37. While the Tribunal made adverse credibility findings, such findings were open to it on the material before it for the reasons which it gave.  Credibility findings are a matter for the decision-maker par excellence as McHugh J stated in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405; [2000] HCA 1 at [67].

38. Insofar as the Applicant takes issue with the Tribunal’s factual findings, he seeks impermissible merits review. Moreover it has not been established that the Tribunal failed to comply with its procedural obligations under the Migration Act or that its decision was affected by procedural unfairness in some broader sense.

39. To the extent that this is a claim that the Tribunal did not consider the integer of the Applicant’s claim to fear harm from Hindu extremists, such a claim is not made out.  The Tribunal clearly considered, albeit that it did not accept, this claim.

40. It has not been established that the Tribunal erred in a manner amounting to jurisdiction error on the basis contended for in Ground 3.

41. The fourth ground is that the Tribunal exceeded its jurisdiction or constructively failed to exercise jurisdiction or denied the Applicant procedural fairness “in that the Tribunal did not investigate [the Applicant’s] genuine claim with the requirements of Migration Act 1958.”  Such a ground misconceives the role of the Tribunal.  It is well-established that it is for an applicant to advance evidence and argument and for the Tribunal to respond to the case advanced by the applicant.  In that context it is for an applicant to put forward information and materials relied upon.  I note in that respect that insofar as the Applicant provided the Court with an explanation for his failure to provide corroborative documents to the Tribunal and appeared to suggest that the Tribunal was under some obligation to obtain such evidence or to make other investigations, there is no general duty on the Tribunal to inquire.  It has not been established that this was a case in which the Tribunal failed to make an obvious inquiry about a critical fact, the existence of which was easily ascertained in the sense considered in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39.

42. I also note more generally that the delegate’s decision alerted, or should have alerted, the Applicant to the absence of any supporting documentary evidence.  The Tribunal also referred to the Applicant’s opportunity to provide supporting evidence in its letter of acknowledgment and in its hearing invitation.  There is no evidence before the Court to indicate that the Applicant either sought to put witnesses before the Tribunal or to provide further evidence.  It has not been established that there was any failure by the Tribunal to make inquiries in a manner constituting jurisdictional error.  This ground is not made out.

43. In oral submissions the Applicant raised a number of other matters.  He claimed he did not receive a Departmental invitation to an interview.  However, as submitted for the First Respondent, the decision the subject of these proceedings is the Tribunal decision; the Tribunal review was a review de novo and the Applicant had and took the opportunity to attend the Tribunal hearing.

44. As indicated, the evidence does not support the Applicant’s oral claim that his time or opportunity to raise claims at the Tribunal hearing was in some way limited so that he was unable to put his case to the Tribunal.   Insofar as the Applicant complained that documents he had wished to provide were not available to him because he was not able to obtain them from India, he was on notice of the opportunity to provide a wide range of documents of various kinds to the Tribunal.   The explanation that the Applicant now gives for not being able to provide such documents is not such as to establish that the Tribunal made a jurisdictional error.

1. Finally, the Applicant took issue with the fact that the Tribunal did not believe him, asking generally why if the Tribunal wanted to disbelieve him, did it hear his statements.  He explained that he had been asked to and had sworn an oath.  He asserted that on that basis he was telling the truth and for that reason took issue with the Tribunal’s failure to believe his evidence.  However it was open to the Tribunal to make an adverse credibility finding, notwithstanding that the Applicant had sworn an oath or made an affirmation to tell the truth at a Tribunal hearing.  As indicated, in this case the Tribunal’s credibility findings were open to it on the material before it for the reasons that it gave.

2. As no jurisdictional error has been established on any of the bases contended for by the Applicant, the application must be dismissed.

3. The Applicant has been unsuccessful.  The Minister seeks costs in the sum of $5,800.  The Applicant indicated that he had no money at present.  However, the Applicant’s lack of funds is not a reason for departing from the normal principle that an unsuccessful applicant should meet the costs of the First Respondent, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs.  The amount sought is appropriate and reasonable in light of the nature of this and other similar matters.

4. It is also appropriate to make the order sought in relation to the name of the Second Respondent.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date: 7 September 2015