SZVLO v Minister for Immigration

[2016] FCCA 1257

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVLO v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1257

Catchwords:
MIGRATION – Protection visa – application seeks impermissible merits review – adverse credibility findings by Tribunal – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a) & (aa), 36(2A), 65

Migration Regulations 1994 (Cth)

Cases cited:

Plaintiff M64/2015 v Minister for Immigration (2015) 327 ALR 8

Applicant: SZVLO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3087 of 2014

Judgment of: Judge Dowdy

Hearing date: 11 February 2016

Delivered at: Sydney

Delivered on: 27 May 2016

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent: Mr Glavac (solicitor).

Solicitors for the First Respondent: Clayton Utz.

ORDERS

1. The Application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3087 of 2014

SZVLO

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The Applicant is a male citizen of India, aged 44 years, having been born on 16 February 1972.  He applied in India successfully for a Visitor’s visa, and he arrived in Australia on 5 May 2013 when, on 1 August 2013, he applied for a Protection (Class XA) visa (Protection visa).

2. On 6 November 2014 the Applicant filed an Application in this Court entitled as being under the Migration Act 1958 (Cth) (Migration Act). The Application does not seek any final orders, but in the circumstances I will take and regard the Applicant by his Application as seeking by constitutional writs to quash a decision of the Second Respondent, the Administrative Appeals Tribunal (at the time of the decision the Refugee Review Tribunal) (Tribunal), dated 8 October 2014, affirming a decision of a Delegate (the Delegate) of the First Respondent, the Minister for Immigration and Border Protection (the Minister), dated 4 February 2014, refusing to grant the Applicant a Protection visa.

3. I will also take it that the Applicant seeks a writ of mandamus requiring the Tribunal to determine his application for review according to law and dispense with any requirement to amend the Application.

4. I direct that the Court Book be marked Exhibit “A” and the Affidavit of Toufic Laba Sarkis be marked Exhibit “B”.

General background

1. Under s.65 of the Migration Act, the Minister is to grant an applicant a visa to enter and remain in Australia if he is satisfied that certain criteria, set out in the Migration Act or Migration Regulations 1994 (Cth) (Regulations) made under it, are made out. 

2. In relation to protection visas, those criteria include, first, at the time of decision, the criterion prescribed by s.36(2)(a) of the Migration Act that the applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has protection obligations under the Refugee Convention 1951 as amended by the Refugees Protocol.

3. A further applicable criterion is that prescribed by s.36(2)(aa) to the effect that the applicant at the time of decision is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia, there is a real risk that the applicant will suffer “significant harm” which term is defined in s.36(2A). For completeness, there are also the criteria in cl.866 of Sch.2 to the Regulations.

4. On 4 February 2014 the Delegate refused to grant the Applicant a Protection visa and so, on 4 March 2014, the Applicant applied to the Tribunal for review of the Delegate’s decision.

5. Both before the Delegate and Tribunal the Applicant’s claim for a Protection visa was said to have arisen from an extra marital relationship which he, a married man and Muslim, had with a married Hindu woman he met in a Bank, and whom he had later found to be the wife of an extremist leader in the Hindu nationalist group known as Rashtriya Swayamsevak Sangh (RSS). The husband, so it was said, became suspicious and traced the Applicant and sent goons who punched the Applicant in a movie theatre. The Applicant claimed that he had fears of being killed if he were to return to India.

6. The Delegate had concern as to the Applicant’s veracity and credibility. He did not accept that the Applicant had an extra marital relationship with the wife of an RSS leader, or that the relationship was discovered and goons were sent to find him. He found inconsistencies between the Applicant’s written account submitted to the Department of Immigration (Department) and his Protection visa interview. Rather, the Delegate found that his cumulative consideration of the Applicant’s written statements and oral evidence caused concern as to the veracity of his Protection visa claims and was “strongly suggestive of an attempt by the Applicant to simply remain in Australia by providing an unsubstantiated story”.

7. The Delegate found that the Applicant did not have a genuine fear of persecution in India and, in the result, the Delegate was not satisfied that Australia had protection obligations under s.36 of the Migration Act and he refused to grant a Protection visa.

Tribunal Hearing

1. The Applicant attended a hearing before the Tribunal on 8 October 2014.

2. On 8 October 2014 the Tribunal affirmed the Delegate’s decision to refuse to grant the Applicant a Protection visa.

3. The Tribunal was also not satisfied the Applicant was a person in respect of whom Australia had protection obligations pursuant to s.36(2)(a) of the Migration Act or that he met the alternative criterion in s.36(2)(aa).

4. The Tribunal found an inconsistency and a disconformity between what the Applicant had said to the Department and what he told the Tribunal. The Tribunal contrasted the Applicant’s written statement in his Protection visa application form that he had “faced lot of harm and tortured and beaten badly” [sic], and his oral evidence to the Tribunal that the only violent incident in which he had been harmed had been when he was punched in the face once in the movie theatre, after which he had nevertheless been able to get up and run away from his pursuers.

5. The Applicant agreed at the Tribunal hearing that he had not in fact been tortured, that he had not been bleeding as a result of the punch and he had not seen a doctor afterwards.

6. The Applicant also confirmed at the Tribunal hearing that it was mostly a personal issue with the woman’s husband relating to the relationship between the Applicant and the husband’s wife rather than, as he had asserted in his written statement, that there was a communal Hindu/Muslim picture to the alleged threats because the husband was of the view that “Muslims are taking Hindus girls” [sic].

7. As a result, the Tribunal was not satisfied that the Applicant’s allegation that the leader of the RSS intended to kill him if he returned to India was true.

8. The Tribunal was not satisfied that the Applicant was identified, threatened or harmed in 2013 for the reasons he had given and the Tribunal did not accept that these events had occurred.

9. At paragraphs 43 to 46 of its Decision Record the Tribunal found as follows:

   42. It may be that the applicant had a friendship with a woman in India. However, I doubt it. Even if so, having considered all the reasons above, and in the absence of any evidence from any other  source that these events occurred, I am not satisfied that the applicant was identified, threatened or harmed in 2013 for the reasons he has given. I do not accept that these events occurred.

   43.  I do not accept that at the time the applicant left India he had any fear of being harmed, either by the woman’s husband or by other Hindus. It follows that I do not accept anyone intending to harm him has approached his family since he left.

   44. Therefore I find that he does not have a well-founded fear of being persecuted for a Convention reason in India.

   45. Are there substantial grounds for believing that, as a necessary and foreseeable consequence of [the Applicant] being removed from Australia to India, there is a real risk he will suffer significant harm?

   46. The applicant made clear that his only fear of harm in India related to the events described above. Relying on the above reasons I find there are no substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to India, there is a real risk he will suffer significant harm.

10. In view of these findings the Tribunal affirmed the Delegate’s decision not to grant the Applicant a Protection Visa. The Tribunal found that it was not satisfied that the Applicant was a person of whom Australia had protection obligations under the Refugees Convention and the Applicant did not satisfy the criterion set out in s.36(2)(a) of the Migration Act. Having come to that conclusion, the Tribunal considered the alternative criterion in s.36(2)(aa) and found that the Applicant was not a person of whom Australia had complementary protection obligations thereunder.

Grounds of Attack in this Court on Tribunal Decision

1. There are three unparticularised grounds relied upon in the Application filed by the Applicant in this Court on 6 November 2014.

   1.       

   I am at shock to know why the Tribunal Refused my 

   
   

   application

   2.       

   I do believe that the Tribunal made an error because the

   
   

   Tribunal misunderstood my claim

   3.       

   I ask the Honourable Court to assist me in this matter

   
   

   because I am Refugee and my life is at risk [sic].

2. All of these three grounds are redolent of merits review rather than jurisdictional error.

3. The Applicant tendered the transcript of the hearing before the Tribunal and took me in particular to various passages at pages 3, 5, 6, 8, 10, 11, 12, 13, 16, 17, 24, 26 and 32 thereof. However the submissions which were made to me by the Applicant through his interpreter in connection with those transcript pages all concerned disagreement with the factual findings of the Tribunal.

4. I have read the whole of the transcript of the Tribunal hearing to see if it is otherwise suggestive of any obviously arguable ground for the Court to find jurisdictional error. I have not been able to do so.

5. The hearing appears to have been conducted with courtesy and respect. The Tribunal member asked many seemingly relevant and pertinent questions relating to factual matters, including about perceived inconsistencies between the Applicant’s written statement to the Department and his version of events at the Tribunal hearing.

6. The Applicant conceded at page 27 of the transcript that he was not tortured, contrary to the written statement he had made in support of his Protection visa.

7. The transcript records that on a number of occasions the Tribunal member squarely indicated to the Applicant that she had trouble believing his story, as is recorded by her in paragraphs 19 and 34 of the Tribunal’s Decision Record.

Disposition

1. I cannot discern any procedural unfairness or any other type of jurisdictional error.

2. The Tribunal was entitled to accept or reject or give weight to the evidence before it as it considered appropriate in the circumstances and it is not part of the function of this Court to generally consider and review the merits of the Tribunal’s factual findings: see the recent High Court decision of Plaintiff M64/2015 v Minister for Immigration (2015) 327 ALR 8 at ([23]-[24]).

3. The Tribunal’s Decision Record indicates that it considered and rejected the Applicant’s claims to protection at a factual level and its consideration and rejection appear to be logical, coherent and reasonably based.

4. In my view, there is no basis for finding that the decision of the Tribunal was affected by jurisdictional error and the Application must be dismissed with costs, which I will reserve for further consideration.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  27 May 2016