SZVUO v Minister for Immigration

[2016] FCCA 1000

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVUO v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1000

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal erred in making adverse credibility findings – whether the applicant had a well-founded fear of persecution – real chance test – whether the Tribunal failed to address an integer of the applicant’s claims – whether the applicant had a genuine hearing – no arguable jurisdictional error identified – applicant dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 424A, 425, 476

Federal Circuit Court Rules 2001, r.44.12

Cases cited:
SZBEL v Minister for Immigration and Multicultural & Indigenous Affairs [2006] 228 CLR 152

Applicant: SZVUO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3416 of 2014

Judgment of: Judge Street

Hearing date: 28 April 2016

Date of Last Submission: 28 April 2016

Delivered at: Sydney

Delivered on: 28 April 2016

REPRESENTATION

Solicitors for the Applicant: The applicant appeared in person

Solicitors for the First Respondent: Ms H Musgrove
Sparke Helmore

ORDERS

1. The name of the second respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.

2. The application is dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001.

3. The applicant pay the costs of the first respondent fixed in the amount of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3416 of 2014

SZVUO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 13 November 2014 affirming the decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of India and his claims were assessed in said country.

2. The applicant arrived in Australia on 5 May 2013 on a business visitor subclass 600 visa using his Indian passport.  The visa permitted to stay until 5 August 2013.  The applicant applied for protection on 18 July 2013.  The applicant claimed to fear harm in India because of his religion and his political activities.  In particular, the applicant claimed to fear harm because he was a Muslim man and because he had become a member of and undertaken political activities for a Tamil Muslim party, and because of his political involvement.

3. On one occasion his shop was attacked.  In another occasion the applicant alleges he suffered wounds in a confrontation with members of a Hindu extremist party.  The applicant says following a confrontation, members came to his home and threatened his family.  The applicant says that later on he became involved in anti-nuclear energy movement and he took part in a protest, because of which the authorities conducted a raid on his shop and his house, arrested and detained him.

4. Pursuant to a letter, dated 7 October 2014, the applicant attended a hearing on 12 November 2014 to give evidence and present arguments.  That hearing was conducted with the assistance of an interpreter.  The Tribunal identified reasons for its concerns with the credibility of the applicant. The Tribunal found the applicant was not a witness of truth and that the account of events on which his protection claims were based, were false. The Tribunal found that there was not a real chance the applicant would suffer serious harm in India, and that the applicant does not hold a well-founded fear of persecution based on any Convention ground.

5. The Tribunal also found that there were no substantial grounds for believing that as a necessary and foreseeable consequence of the applicant’s removal to the receiving country, India, there is a real risk he will suffer significant harm. 

6. On 18 February 2015 a Judge of this Court fixed the matter for hearing today as a show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001.

7. At the commencement of the hearing the Court explained to the applicant that the show cause hearing under r.44.12 was a hearing to determine whether the applicant had an arguable case. The Court explained that whether the applicant had an arguable depended on whether there was a reasonable argument that the Tribunal’s decision was affected by relevant legal error.

8. The Court explained the relevant legal error had to be either a denial of procedural fairness to the applicant or an excess of statutory powers by the Tribunal.  The Court explained that it would identify the evidence and then hear from the applicant, and then hear from the solicitor for the first respondent, and then hear from the applicant in reply.  The applicant confirmed that he understood the nature of the hearing as explained by the Court.

9. The orders that were made on 18 February 2015 also provided the applicant with an opportunity to file an amended application, affidavit evidence and submissions.  The applicant did file an affidavit that purported to annexe information relating to his claims that was not before the Tribunal.  The applicant confirmed that the material was material that he did not have available at the time of the hearing before the Tribunal. 

10. The Court is not in a position to make fresh findings of fact in relation to the applicant’s claims and the material in the affidavit was not relevant to the jurisdictional issues before this Court, and it was on that ground that the tender of that affidavit material was rejected.  No other documents were filed by the applicant.

11. The grounds of the application are as follows:

    1. The Tribunal failed to consider an integer of the Applicant's claim, in failing to consider whether or not a Muslim activist (regardless of their specific claims of affiliation or past persecution) in India was at risk of harm and not able to access effective protection.

    2. 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.

    3. The Second Respondent committed jurisdictional error by failing to address applicant's claim in the way it was made:

    a. The applicant stated in his protection visa application that he was a secretary of TMMK from 2001 to2010.

    b. The applicant was involved in protests and demonstrations for demanding rights of Muslims community.

    c. His business was ransacked by the Hindu extremists group RRS during the religious conflict in the town.

    d. The applicant was arrested and detained by police for three days.

12. In relation to ground 1, it is clear the Tribunal found that the account of the events on which the applicant’s protection claims are based was false.  In particular, the Tribunal disbelieved the applicant’s claims that he joined a Tamil Muslim party, that he undertook political activities, that he became involved in an anti-nuclear movement and that he participated in protests.  Those adverse findings as to the credibility of the applicant were open on the material before the Tribunal.  The adverse findings cannot be said to lack an evident and intelligible justification.

13. Having disbelieved the applicant in relation to his claims to be a Muslim activist, it was not necessary for the Tribunal to consider whether a Muslim activist in India was at risk of harm and not able to access effective protection.  The Tribunal did accept that the applicant was a Muslim and did consider the applicant’s claim to fear harm in India on that basis. 

14. The Tribunal put to the applicant the country information to the effect that the Indian laws provide for protection of religious freedom, and that there was a large Muslim population in India. Having found that the risk of the applicant suffering serious or significant harm on the ground of his religion to be remote, the adverse findings by the Tribunal in relation to the criteria under ss.36(2)(a) and 36(2)(aa) are open. For the reasons given, it is clear the Tribunal did address the integers of the applicant’s claims but made adverse credibility findings that were open to the Tribunal to make. Nothing said by the applicant from the bar table identified any basis upon which ground 1 could be said to identify any arguable case of jurisdictional error. Ground 1 fails to identify any arguable jurisdictional error.

15. In relation to ground 2, from the material in the court book it is apparent that the Tribunal complied with the statutory obligations under s.425 of the Migration Act 1958 and that the applicant had a genuine hearing. There was no information identified of a kind that could enliven any obligation under s.424A of the Migration Act 1958.  It is apparent from the structure and content of the Tribunal’s decision that the credibility of the applicant and the inconsistencies in his evidence was a live issue before the Tribunal and the Tribunal raised those inconsistencies with the applicant, as identified in paras.9, 10, 13, 16 and 17.

16. Further, the Tribunal noted that at the beginning of the hearing the Tribunal put the applicant on notice that, although the delegate found certain aspects of the applicant’s evidence credible, the Tribunal would, nevertheless, have to decide for itself whether or not the applicant’s evidence was credible. 

17. This is not a case of the kind in which there was a finding by the delegate in respect of which the applicant was entitled to be put on notice as to a live issue concerning the delegate’s finding, as arose in SZBEL v Minister for Immigration and Multicultural & Indigenous Affairs [2006] 228 CLR 152 at 33 to 35 and 47. There was nothing on the material before the Tribunal or the structure and content of the Tribunal’s reasons to support any argument that the Tribunal did not comply with its obligations under div.4 of part 7 of the Act. Ground 2 fails to make out any arguable jurisdictional error.

18. In relation to ground 3, I accept the first respondent’s submission that the substance of the matters set out are a restatement of accounts of events on which the applicant’s protection claims were based and is, in substance, an invitation for an impermissible review of the merits.  Nothing in ground 3 identifies any arguable jurisdictional error. 

19. From the bar table the applicant suggested that the Tribunal had ignored his wounds.  That proposition is inconsistent with the reasons of the Tribunal and, in particular, in para.2 and para.22.  The applicant also submitted an explanation as to why he gave inconsistent evidence.  The applicant contended that he got a date wrong, and was confused and not able to answer properly.  There is nothing in the material before the Court to support the contention that the applicant did not have a genuine hearing, and it was a matter for the Tribunal to determine the significance of the inconsistencies in the applicant’s answers in relation to the assessment of the applicant’s credit. Nothing said by the applicant from the bar table identified any arguable case of jurisdictional error.

20. The applicant maintained that he would be killed if he went back to India, and that his family were at risk and that he was just asking for help. This Court does not have jurisdiction to make fresh findings of fact in relation to the applicant’s claims or to determine the application on compassionate grounds. The Court’s jurisdiction is dependent upon there being established jurisdictional error by the Tribunal. I am satisfied that the application fails to disclose any arguable case of jurisdictional error. I am satisfied that this is an appropriate case in which to exercise the Court’s powers under r.44.12 of the Federal Circuit Court Rules 2001.

21. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 10 May 2016