SZVML v Minister for Immigration and Border Protection
[2016] FCA 564
•19 May 2016
FEDERAL COURT OF AUSTRALIA
SZVML v Minister for Immigration and Border Protection [2016] FCA 564
Appeal from: SZVML v Minister for Immigration and Border Protection [2015] FCCA 3320 File number: NSD 1712 of 2015 Judge: FARRELL J Date of judgment: 19 May 2016 Catchwords: MIGRATION – application for leave to appeal judgment of the Federal Circuit Court of Australia – protection visa –application for leave to appeal refused Legislation: Federal Circuit Court Rules 2001 (Cth) r 44.12
Federal Court of Australia Act 1976 (Cth) s 24(1A)
Federal Court Rules 2011 (Cth) r 35.12
Migration Act 1958 (Cth) s 36(2)
Cases cited: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; [1984] FCA 176
SZVML v Minister for Immigration and Border Protection [2015] FCCA 3320
Date of hearing: 19 May 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 25 Counsel for the Applicant: The applicant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Ms N Maddocks of DLA Piper Australia Counsel for the Second Respondent: The second respondent submitted save as to costs ORDERS
NSD 1712 of 2015 BETWEEN: SZVML
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
FARRELL J
DATE OF ORDER:
19 MAY 2016
THE COURT ORDERS THAT:
1.Leave to appeal be refused and the application dismissed.
2.The applicant pay the first respondent’s costs as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BACKGROUND
The applicant is a male citizen of India who arrived in Australia on 1 September 2013. On 14 October 2013 the applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Border Protection. A delegate of the Minister made a decision to refuse to grant the visa on 31 March 2014. The applicant applied to the Refugee Review Tribunal (now known as the Administrative Appeals Tribunal) for review of the delegate’s decision on 24 April 2014.
Following a hearing on 2 October 2014, the Tribunal notified the applicant on 20 October 2014 of its decision to affirm the delegate’s decision and its reasons for doing so in a Statement of Decision and Reasons (“Decision Record” or “DR”). The Tribunal summarised the applicant’s claims to protection in his visa application and before the Tribunal as follows (identifying descriptors omitted):
5.In his visa application form the applicant stated he left India because Muslim League people threatened to kill him and his family. He was an active BJP member and pujani of the local temple. He states the Muslim League people attacked him and he lost his index finger when they tried to cut his right hand. The visa application form also refers to an attached statement.
6.In summary, the attached written statement outlines the applicant’s family composition and his residence in India. The applicant claims he was a “staunge” worker for the Bharathiya Janatha Party and attracted many people to the party due to his dedicated work. He claims because of this, on 9 August 2010, a group of rival political party men attacked him by entering his house at night-time with deadly weapons and cut his right finger and tried to murder him and his whole family. Subsequently, fearing an attack from his enemies, he sent his wife and children to her house in [xx], and his father moved to [xx] where he now permanently resides. The applicant states his mother and he pulled their life in his house since, as he has no alternative to go anywhere else. He claims his enemies prepared a hit list of wanted persons including him and began to eradicate them by murder one by one. He states he recently got some anonymous information that there is every possibility to take away his life and the rival political party has their men in every corner of India so he has no place in India to hide.
7.…
8.At the hearing the applicant told the tribunal he fears returning to India because the Muslim League people will kill him, because they do not like the work he did for the BJP. The applicant told the tribunal they told him they will kill him during the attack at his home in August 2010.
9.… He told the tribunal he has high sugar which has affected his kidneys for which he can get good treatment in Australia and is currently on medication. When questioned whether people are treated for diabetes in India the applicant told the tribunal he is unable to access treatment in India as he is unable to attend hospital due to the treat of being attacked.
The Tribunal did not accept these claims in light of its adverse credibility findings. At DR [12], the Tribunal found:
12.During the hearing the tribunal raised its concerns about the inconsistencies between the applicant’s oral evidence and his written statement and visa application form. It also raised its concerns that the applicant changed his oral evidence during the hearing. The tribunal finds the applicant is not a witness of truth and is not satisfied the applicant has told the truth in relation to critical aspects of his claims. The tribunal does not accept the applicant held a position or ever worked for the Bharathiya Janatha Party (BJP). The tribunal does not accept the applicant was attacked and injured and threatened as claimed, or that some of his family members moved away because of that attack. The tribunal does not accept that the applicant is on a hit list or that he is of any adverse interest to any members or associates of a rival political party or the Muslim League. The reasons for these finding are discussed below.
The Tribunal set out seven detailed reasons for these credibility findings: DR at [13]-[20].
Having rejected the entirety of the applicant’s claims and having found that there is no real chance that the applicant will be harmed if returned to India and that he does not have a well-founded fear of persecution, the Tribunal was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugee Convention: DR at [27]-[28].
After repeating its findings with respect to the applicant’s claims at DR [30]-[31], the Tribunal found that it was also not satisfied that there are 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 that the applicant will suffer significant harm: DR at [32].
In the result the Tribunal was not satisfied that the applicant is a person in respect of whom Australia owes protection obligations, either as a refugee under s 36(2)(a) or for complementary protection under s 36(2)(aa) of the Migration Act 1958 (Cth): DR at [33].
APPLICATION FOR LEAVE TO APPEAL
By an application filed on 22 December 2015 and made pursuant to r 35.12 of the Federal Court Rules 2011 (Cth), the applicant seeks leave to appeal a judgment of the Federal Circuit Court of Australia (“FCCA”) delivered on 11 December 2015 and the orders made on that day: see SZVML v Minister for Immigration and Border Protection [2015] FCCA 3320 (“FCCA Judgment”). The primary judge dismissed an application for judicial review of the decision of the Tribunal made on 20 October 2014.
As the application for judicial review was dismissed under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) it was an interlocutory decision: r 44.12(2). For that reason, the applicant requires leave to appeal to this Court: s 24(1A) Federal Court of Australia Act 1976 (Cth).
On an application for leave to appeal, an applicant must establish that the decision in question is attended with sufficient doubt to warrant it being reconsidered by this Court and, assuming the decision to be wrong, that substantial injustice would result if leave were refused: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399.
The applicant lists two grounds in his application for leave to appeal (as written):
1. The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claims and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation.
2. The learned Judge dismissed the application without considering the legal and factual errors contained in the decision of AAT.
The applicant also filed an affidavit sworn 22 December 2015 attaching a draft notice of appeal. The first ground in the applicant’s draft notice of appeal is the same as the first ground of his application for leave to appeal. The second ground (which I will refer to as “ground three”), is (as written):
The Federal Circuit Court failed to take into consideration that the Tribunal’s decision was unjust and was made without taking into account the full gravity of my circumstances and consequences of the claim.
It is notable that these grounds bear little relationship to the grounds for judicial review by the primary judge which were (as written):
1. The Refugee Review Tribunal denied the Applicant procedural fairness by reaching adverse conclusion that the inconsistencies between the applicant’s oral evidence and written statement, being conclusion that were not obviously open on the known material, without giving the applicant to make a written comments in respect of those matters.
2. The Tribunal had no jurisdiction to make the said decision because its reasonable satisfaction was not arrived in accordance with the provisions of the Migration Act.
3. The Tribunal’s decision was unjust and made without taking into account the full gravity of the applicant’s circumstances and consequences of the claim.
4. The Tribunal has failed to investigate the claim, specially the grounds of persecution in India. Therefore the Tribunal decision was a judicial error.
The written submissions filed on behalf of the Minister on 9 May 2016 state that the Minster opposes the grant of leave on the basis that the substantive appeal has no prospects of success; the proposed grounds are “broad and formulaic” and “fail to raise any arguable case of error” on the part of the Tribunal or appellable error by the primary judge.
The applicant appeared in person. He did not file written submissions. The hearing was conducted with the assistance of an interpreter.
GROUND ONE
The applicant submitted that he could not go back to India because of political problems there and if he is returned to India he will be killed. He confirmed that his complaint is that the Tribunal did not accept his claims. I accept the Minister’s submission that on this basis, the first ground invites impermissible merits review of the Tribunal’s decision and therefore the ground has no reasonable prospect of success on appeal.
GROUND TWO
The applicant submitted that he did not understand the primary judge’s reasons. I accept the Minister’s submission that, in light of the applicant’s explanation and in the absence of any particulars, this ground discloses no appellable error by the primary judge and therefore it also lacks merit.
GROUND THREE
The applicant submitted that he had given the Tribunal proof that he had been attacked and as a result had been admitted to hospital for 15 days. His body reveals damage to his hand and teeth. His passport reveals that he went to Israel. He has sugar and kidney problems for which he can get good treatment in Australia but none in India so that he should not be returned to India.
In the DR at [16], the Tribunal noted that in his visa application, the applicant claimed only that he had an injury to his finger as a result of the attack at his home in August 2010 but at the Tribunal hearing, he claimed that he also received injuries to his teeth and leg. While the Tribunal accepted that the process by which his visa claims had been made (a friend reading a translation of them to him) could result in omissions and errors, the Tribunal did not accept the translation process as a reason for the inconsistency because the applicant told the Tribunal that the omission was due to the fact that at the time he was drafting his protection claims (with the assistance of his friend) he was “concentrating on the injury to his finger because the main problem was his finger”. In making this finding, the Tribunal noted that earlier in the hearing the applicant had told the Tribunal that his friend had read his written statement back to him and that he had understood its contents. The Tribunal found that the applicant’s failure to mention the injuries to his teeth and leg before the Tribunal hearing undermined his credibility as a witness. Further, the letter from the hospital dated 14 March 2014 which the applicant provided to the Department only mentioned the injury to his finger. The Tribunal did not accept the applicant’s explanation that dentistry was done in a different hospital as a reason why the hospital to which he says he was admitted immediately after the attack would not mention all of his injuries: DR at [19]. The applicant’s evidence as to his injuries was therefore considered by the Tribunal and rejected for reasons which were open to it.
The primary judge dealt with the fact that the Tribunal did not accept that the applicant had travelled to Israel in order to escape persecution in the FCCA Judgment at [19]-[21]:
19 The applicant sought to tender at the outset of the hearing today certain additional documents. Two were medical records which were already in the court book at pages 74 and 75. The other document is the applicant’s Indian passport which he was unable to provide to the Tribunal. He had provided the Tribunal with a later passport. The applicant claimed to have visited Israel in order to escape persecution in India. That visit was not evidenced in the passport before the Tribunal and the applicant claimed that a visa was in an earlier passport.
20The Tribunal provided the applicant with time in order to furnish the Tribunal with the earlier passport but nothing was provided within the time provided by the Tribunal. The applicant explained to me that he could not meet the Tribunal’s timetable because the passport was held up in the Australian post office for about one and a half months. The passport provided to me by the applicant was marked for identification. It is a passport issued in 2006 which remains current until 3 September 2016. The passport contains a visa for Israel for the period during which he claims to have visited that country. It appears to be a form of business visa. The passport contains entry and departure stamps for Ben Gurion Airport in Israel. The information in the passport, if it had been available to the Tribunal, would have supported the applicant’s claim to have visited Israel. It would not have supported the applicant’s claim to have sought protection as a refugee in that country. That is because the passport evidences the visit but not what occurred while the applicant was in Israel.
21In any event the Tribunal’s concern as set out at [14] of its reasons was inconsistency between the applicant’s asserted visit to Israel and his earlier written claim that he had been in hiding in his house in India at the relevant time. The passport, if it had been available, would not have cured that inconsistency. I conclude that the passport, while it may be of some interest to the Minister should he be invited to reconsider the applicant’s claims and be minded to do so, is not of assistance to the Court.
I perceive no appellable error in the primary judge’s approach on this issue.
In the FCCA judgment at [33], the primary judge noted that:
In respect of the medical documents submitted at hearing, the Tribunal considered these documents at [26], accepted that the applicant had diabetes and asthma, but in light of its adverse credibility finding, did not accept the applicant’s claim that he was unable to receive treatment in India.
This is an accurate reflection of the Tribunal’s findings; the applicant is cavilling with the factual findings of the Tribunal which were open to it for the reasons that it gave. To engage with this ground of appeal would involve impermissible merits review. I perceive no appellable error in the primary judge’s finding to that effect in the FCCA Judgment at [34].
CONCLUSION
For these reasons, the applicant has not established that the decision of the primary judge is attended with sufficient doubt to warrant it being reconsidered by this Court on appeal. I do not consider that substantial injustice will be done to the applicant by refusing leave to appeal.
I will order that leave to appeal be refused, that the application is dismissed and the applicant pay the first respondent’s costs as agreed or taxed.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell. Associate:
Dated: 20 May 2016
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