SZVLI v Minister for Immigration and Border Protection
[2017] FCA 531
•19 May 2017
FEDERAL COURT OF AUSTRALIA
SZVLI v Minister for Immigration and Border Protection [2017] FCA 531
Appeal from: SZVLI & Anor v Minister for Immigration & Anor [2016] FCCA 3101 File number: NSD 1999 of 2016 Judge: BURLEY J Date of judgment: 19 May 2017 Catchwords: MIGRATION – application for a Protection (Class XA) visa – appellants failed to appear – application to dismiss appeal under Federal Court Rules 2011 (Cth) r 36.75 – whether Tribunal considered all appellants’ claims –grounds of appeal seeking impermissible merits review Legislation: Federal Court of Australia Act 1976 (Cth) s 24
Migration Act 1958 (Cth) s 36
Federal Court Rules 2011 (Cth) r 36.75
Migration Regulations 1994 (Cth) Schedule 2
Cases cited: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) ALJR 1123
ReMinister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Date of hearing: 2 May 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 37 Counsel for the Appellants: The Appellants did not appear Solicitor for the First Respondent: Ms M Wells of Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
NSD 1999 of 2016 BETWEEN: SZVLI
First Appellant
SZVLJ
Second Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BURLEY J
DATE OF ORDER:
19 MAY 2017
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellants pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
1 INTRODUCTION
[1]
2 BACKGROUND
[6]
2.1 The visa applications and the decision of the Delegate
[6]
2.2 The Tribunal’s Decision
[8]
2.3 The Decision of the FCCA
[17]
3 THE PRESENT APPEAL
[22]
3.1 Ground 1: Failure of Tribunal to accept the appellants’ version of events
[24]
3.2 Ground 2: Failure to consider a claim namely persecution experienced for failure to pay money to a Congress leader
[28]
3.3 Ground 3: Failure to find a lack of procedural fairness by Tribunal
[34]
3.4 Ground 4: Failure to accept that the first appellant was assaulted or that his, and his family members’ lives, are at risk if he returns to India
[35]
3.5 Ground 5: Error in finding that first appellants is able to relocate to another part of India
[36]
4 DISPOSITION
[37]
BURLEY J:
1. INTRODUCTION
In these proceedings, the appellants appeal from the judgment and orders made by the Federal Circuit Court of Australia (FCCA) dismissing an application for judicial review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (Tribunal). The Tribunal had affirmed a decision of a delegate (Delegate) of the first respondent (Minister) not to grant the appellants protection (Class XA) visas under s 36 of the Migration Act 1958 (Cth) (Act) and cl 866.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
In the present proceedings, the appellants did not appear when the matter was called on for hearing. I was provided with evidence that the appellants had been notified in advance of the hearing on several occasions. The Minister sought an order that the proceedings be dismissed pursuant to r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth) (FCR).
I am satisfied that it is appropriate to dismiss the proceedings on this basis, however, as it is also my view that the appeal should be dismissed substantively because it lacks merit, I now proceed to consider the appeal on the basis that the appellants did appear and relied upon the grounds set out in their notice of appeal.
The appellants relied upon the following grounds of appeal, namely that the primary judge:
1.Erred in law in determining [the] application [by] not finding that the Tribunal did not consider that [the] first appellant was a victim of persecution for [his] political belief[s] as a member of Indian Lok Dal (ILD) and [his] responsibility as president of [the] Truck Union Association Taraori District Karnal India.
2.Erred in law [by] not considering [the] Tribunal’s failure to consider the persecution experienced [by the first appellant] for [his] failure to pay money to a Congress leader.
3.[Erred in failing to find] that there was a lack of procedural fairness in the decision of the Administrative Appeals Tribunal as the Tribunal failed to consider [the first appellant] as a credible witness and [that he] was accused of a false allegation of embezzling Truck Union funds and also a false case was filed against [him] of murdering a truck driver.
4.[Erred in failing to find] that the Tribunal failed to accept that [the first appellant] was physically assaulted prior to leaving India, [that] the life of [his] family members are at risk and that [his] life will be at risk if [he] returns back to India.
5.Erred in not finding that the Tribunal refused [the first appellant’s] application on the ground that [he] would be able to relocate in another part of India where [he] shall be safe and … [is] able to seek state protection … [when this] is not [available] … due to [his] background and social conditions in India.
The Minister filed an outline of submissions on 21 April 2017. No written submission was filed on behalf of the appellants.
2. BACKGROUND
2.1 The visa applications and the decision of the Delegate
The first appellant is the father of the second appellant. Both are nationals of India. They were granted tourist visas to Australia on 11 March 2013 and entered Australia on 27 March 2013. Their visas were due to cease on 27 June 2013 and, on 10 May 2013, they applied to the Department of Immigration for the protection visas in issue in this appeal. The second appellant applied for his visa as a member of his father’s family unit and relied on the evidence advanced by the first appellant in support of his application. The first appellant’s wife travelled with them from India but returned to India shortly after her arrival in order to care for their two other children.
The Delegate was not satisfied that Australia has protection obligations to the appellants under the 1951 Refugees Convention as amended by the 1967 Refugees Protocol (together, the Convention), and as a result found that the appellants do not meet the criteria for the grant of a protection visa pursuant to s 36(2)(a) of the Act. In essence, the Delegate concluded that he was not satisfied that the appellants had substantiated their claims because he found them not to be credible.
2.2 The Tribunal’s Decision
On 31 January 2014, the appellants lodged an appeal with the Tribunal and on 10 July 2014 the Tribunal wrote to the appellants and invited them to attend a hearing on 2 September 2014. The first appellant appeared before the Tribunal at the hearing on his own and on his son’s behalf. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.
On 3 October 2014, the Tribunal affirmed the decision of the Delegate not to grant the appellants protection visas. In essence, the Tribunal found that the first appellant has fabricated his claims in respect to his experiences in India and his fears in returning to India. As a result, the Tribunal was not satisfied that the applicants have a well-founded fear of serious harm or persecution for a Convention reason and was not satisfied that the requirements to be granted protection under the Complementary Protection provisions of the Act were met.
The Tribunal recorded that the first appellant claimed that prior to coming to Australia he had experienced the following:
(a) discrimination on the basis of his membership of the shadool caste;
(b)being investigated by the Chief Minister Audit Department and accused of embezzlement of union funds whilst the president of the Truck Union Association from 2005 until 2010;
(c)being accused of murdering one of his former employees and taken to court, although the charges were later dismissed;
(d)being attacked and beaten on several occasions with machetes and batons resulting in hospitalisation;
(e)receiving death threats as a follower of Bab Ram Rahim Singh, because he is highly controversial among the Sikh community;
(f)having his office raided by the police, who had also attempted to arrest him at his home when he was not there.
The Tribunal considered these claims together with the evidence and arguments presented during the course of the hearing. It made numerous findings of fact in relation to the veracity of the first appellant’s evidence, some of which are set out below.
First, the Tribunal found that the first appellant’s evidence regarding his association with Bab Ram Rahim Singh was vague, contradictory and unconvincing. His evidence was that in India people attacked him because of his following Bab Ram Rahim Singh and because Bab Ram Rahim Singh himself came to the first applicant’s house on more than one occasion. Yet the first appellant could not be specific as to details of when he was attacked and was vague as to when Bab Ram Rahim Singh visited. Further, the first appellant gave evidence that he practised his religion in Australia by singing with others. However, when asked for further detail the first appellant amended his evidence and said that he did not worship Bab Ram Rahim Singh whilst in Australia because he was scared to do so due to his previous experiences in India.
Secondly, the Tribunal was unconvinced in relation to the first appellant’s claims to have been attacked in India, as well as his claims that some of the attacks against him were reported in the newspapers and to the police. The Tribunal noted that the first appellant said that he had been attacked at his house in July 2012 and February 2013. In relation to the attack in 2012, he said that he reported it to the police. The first appellant also said that there was a newspaper report regarding when he was attacked. When asked if he had a copy of the relevant police report the first appellant said that he did not and that his wife could not obtain these because she was living in a different area. Asked why his brother could not obtain the reports, he said because his brother was uneducated, unable to speak and shy. When pressed on this subject, the first appellant amended his evidence and said that his brother had promised to get the report but had failed to do so. The Tribunal found this evidence to be unconvincing and did not accept that the first appellant was ever attacked as claimed or that there were police reports or newspaper reports related to such attacks.
Thirdly, the first appellant gave evidence that he had travelled to Malaysia in 2012. When asked about why he did not seek protection when he arrived there, the first appellant said that he had hoped things would “settle down” by the time that he returned to India. However, his evidence was that he had stayed in Malaysia four to five days. The Tribunal noted that it was difficult to accept the first appellant’s evidence that he had been physically and verbally attacked, accused of murder and various other things when he did not claim protection in Malaysia in 2012 instead of returning to India.
Fourthly, the Tribunal asked why the first appellant, his wife and the second appellant travelled to Australia and left their two other children at home. The first appellant said that he had left those children with his brother. However, the Tribunal raised with the first appellant the fact that his written submission recorded that his brother lived 70 km away and could not help. The Tribunal did not accept that the first appellant would leave two of his children in India if the events that he has claimed (including threats to murder and kidnap his children) were actually true.
Fifthly, the Tribunal noted (at [37]) that the first appellant during the hearing repeatedly referred to the fact that the second appellant was studying in Australia and that he wanted the second appellant to remain here. The Tribunal concluded that the first appellant’s aim in claiming protection is to remain in Australia for his son’s education and future and not for the reasons claimed.
2.3 The Decision of the FCCA
The appellants filed an application for review of the decision of the Tribunal by the FCCA on 31 October 2014. The grounds were as follows:
1.The applicant asked the Tribunal for additional time to obtain documents from India in support of his claims. The Tribunal refused to give the application additional time. The Tribunal’s refusal was unreasonable and involved jurisdictional error.
2.The applicant told the Tribunal that he wanted his son to study in Australia. The Tribunal reasoned that “this indicates that the applicant’s aim in claiming protection in Australia is … not for the reasons claimed”. This reasoning process involves jurisdictional error.
3.The Tribunal found that the applicant had fabricated his claims. The Tribunal fell into jurisdictional error in making this finding.
The primary judge considered that the reasoning of the Tribunal provided an intelligible justification for its refusal to adjourn or extend the time for the hearing and dismissed ground 1 of the application.
The primary judge considered that ground 2 involved; (a) challenges to credit findings, and (b) challenges to the Tribunal’s findings at [37] on the basis that they were were illogical or unreasonable. In relation to (a), the primary judge found that the challenge does not address any question of jurisdictional error. In relation to (b), the primary judge found that the Tribunal’s reasoning proceeded on the evidence that was put before it and that it was open to the Tribunal on the evidence to reach the conclusion that it expressed. It could not be said that the conclusion of the Tribunal was unreasonable as there was a logical connection between the evidence of the first appellant in relation to his son’s education and the Tribunal’s finding. Accordingly, ground 2 was rejected.
The primary judge noted that ground 3 takes issue with the Tribunal’s finding, expressed at [31] (quoted below), that the applicant fabricated his claims. Again, the primary judge found that a challenge to the findings of credibility made by the Tribunal does not reveal jurisdictional error.
Accordingly, the primary judge ordered that the application for review be dismissed.
3. THE PRESENT APPEAL
I commence my consideration of this appeal with the observation, which is apt for many such appeals, that neither this Court nor the FCCA has jurisdiction to decide afresh on the evidence whether the appellants satisfy the criteria for the grant of the protection visas or to grant the appellants a visa. As such, neither Court has the capacity to consider the factual merits of the Tribunal’s decision to refuse to grant the protection visas to the appellants. The jurisdiction of the FCCA is limited to considering only whether the Tribunal’s decision to refuse to grant the appellants protection visas is lawful under the Act, that is, whether the decision of the Tribunal is invalid by reason of jurisdictional error; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) ALJR 1123 at [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). In turn, this Court is required to consider whether there is error in the decision of the FCCA on appeal from the Tribunal under s 24 of the Federal Court of Australia Act 1976 (Cth).
I now turn to the specific grounds of appeal that are raised.
3.1 Ground 1: Failure of Tribunal to accept the appellants’ version of events
In ground 1 of the appeal the appellants, in effect, challenge the Tribunal’s finding that the first appellant was not a victim of persecution for his political beliefs as a member of Indian Lok Dal and his position as president of the Truck Union Association of Taraori District in Kamal India.
This ground was not specifically raised before the primary judge, although the appellants did contend that the Tribunal fell into jurisdictional error in finding that he had fabricated his claims. In the circumstances, I proceed on the basis that the claim is sufficiently similar to that raised below to be permissible without leave.
However, the essence of the ground is a challenge to the credibility findings made by the Tribunal, which I have summarised in section 2.2 of these reasons, above. The Tribunal concluded at [31]:
The Tribunal finds that the applicant has fabricated his claims in relation to his experiences in India and his fears in returning [to] India. This finding is made in relation to all of the applicant’s claims, including those relating to his caste, his political and/or union associations, the death of one of [his] employees and his religion.
A finding as to whether a witness such as the first appellant should be believed is a function of the primary decision maker; ReMinister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [67] (McHugh J). In the present case the disbelief arose from the Tribunal’s view that the first appellant’s version of events was unreliable for the reasons briefly summarised in section 2.2 above. The appellants have not established that there was jurisdictional error in the Tribunal’s reasons in this regard. I dismiss this ground of appeal.
3.2 Ground 2: Failure to consider a claim namely persecution experienced for failure to pay money to a Congress leader
In this ground the appellants contend, in essence, that the Tribunal failed to consider the first appellant’s claim of persecution on the basis of the first appellant’s failure to pay money to a Congress leader. This ground was not advanced before the primary judge and accordingly leave to rely upon it is necessary; Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397 at 398 – 400.
The specific claim made is that Mr Baljinder Singh was a member of Congress and was asking for funds from the first appellant. This claim is apparent from the statement supplied by the first appellant accompanying his visa application.
It might be observed at the outset that the Tribunal’s reasoning in relation to this claim is slightly Delphic. However, I am satisfied that it was addressed by the Tribunal. I have noted above at [10] that the Tribunal recorded six claims made by the appellants, which included; that he had been investigated by the Chief Minister of the audit department and accused of embezzlement of union funds; that he had been accused of murdering one of his former employees and taken to Court, although the charges were later dismissed; that he had been attacked and beaten on several occasions and that he had had his office raided by the police.
The Tribunal also recorded at [11] the following:
During the hearing the applicant said that he feared returning to India due to his community, politics and the police. In relation to his community, the applicant said that he feared his previous neighbour (but that his wife had moved after she returned to India). Asked if the neighbour was still harassing the family, the applicant said that his wife and children had relocated to a new area near his brother, but that the neighbour had approached his son (aged 12) at his new school on three occasions. Asked why the neighbour would not approach his wife instead, the applicant said that she is protected by his brother. Asked why they did not change the son’s school, the applicant said that it was difficult to get admission to a new school near the time of exams. The Tribunal raised that it was difficult to accept that the applicant and/or his son and/or his wife believed that the child was under threat, because they did not change his school. The Tribunal raised that it had difficulty accepting this evidence.
After a consideration of the materials, it is apparent that the references to the “neighbour” in this paragraph are references to the member of Congress, Mr Baljinder Singh, to whom the first appellant referred in his statement. This is made clear from the reasoning of the Delegate (that the appellants lodged with the appeal to the Tribunal) which records that Baljinder Singh was a neighbour of the first appellant, belongs to the Congress party in India and had threatened to kidnap his family/children because he considered the applicant’s family to be low caste and should not worship Bab Ram Rahim Singh. It further records that Mr Singh was asking for funds to give to the Congress party.
In the first appellant’s statement he records that Mr Singh was working with an organisation called “Huda group” and that, amongst other things, the first appellant claimed that this group organised for him to be falsely accused of embezzlement of union funds, falsely accused the first appellant of murdering at a truck driver, and organised for people to attack the first appellant. In these circumstances, although it could have been better expressed, it is apparent that the findings of the Tribunal at [11] constitute a specific rejection of the first appellant’s claims in relation to Mr Baljinder Singh’s behaviour towards the first appellant and [31] of the Tribunal’s reasons provide a general rejection of all of the first appellant’s claims. I consider that this ground has insufficient prospects of success to warrant the grant of leave for it to proceed.
3.3 Ground 3: Failure to find a lack of procedural fairness by Tribunal
In this ground, the appellants contend that the primary judge erred in failing to find a lack of procedural fairness on the part of the Tribunal when it failed to consider that the first appellant was a credible witness or to accept that he was accused of a false allegation of embezzling union funds or that a false case had been filed against him of murdering a truck driver. In my view, this ground fails with ground 1 as it raises a challenge to findings of credit.
3.4 Ground 4: Failure to accept that the first appellant was assaulted or that his, and his family members’ lives, are at risk if he returns to India
In this ground, the appellants contend that the primary judge erred in failing to find that the Tribunal fell into error by failing to accept that, as a matter of fact, the first appellant was assaulted prior to leaving India, that the life of his family members will be at risk and that his life will be at risk if he returns to India. In my view this ground is simply a challenge to the fact-finding of the Tribunal, is a further challenge to the credit findings of the Tribunal and amounts to no more than an attempt to bring a merits review in the Court. This ground is not made out.
3.5 Ground 5: Error in finding that first appellants is able to relocate to another part of India
In ground 5 the appellants contend that the primary judge fell into error by failing to find that the Tribunal incorrectly refused their application on the basis that the first appellant would, if he returned to India, be able to relocate to another part of the country where he would be safe. Ground 5 was also not raised before the primary judge. It is misconceived because, as the Minister points out in its submissions, the Tribunal rejected the entirety of the appellants’ claims of persecution and so the issue of relocation did not arise. Accordingly, I would not grant leave for this ground to be advanced on the basis that it has insufficient prospects of success.
4. DISPOSITION
I have found that none of the grounds of appeal advanced by the appellants has been made out. In addition I have found that, notwithstanding having received notice of the hearing, the appellants did not appear and accordingly that it is appropriate to make orders pursuant to FCR r 36.75(1)(a)(i). Accordingly, the appeal must be dismissed and the appellants must pay the costs of the first respondent.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley. Associate:
Dated: 19 May 2017
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