FEDERAL COURT OF AUSTRALIA

SZVTB v Minister for Immigration and Border Protection [2017] FCA 234

Appeal from:

SZVTB v Minister for Immigration and Border Protection [2016] FCCA 2421

File number:

NSD 1741 of 2016

Judge:

RARES J

Date of judgment:

15 February 2017

Legislation:

Migration Act 1958 (Cth) s 36, Div 4 Pt 7

Cases cited:

Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1997) 185 CLR 259

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

Date of hearing:

15 February 2017

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

No Catchwords

Number of paragraphs:

36

Counsel for the Appellant:

The Appellant appeared in person

Solicitor for the First Respondent:

Mr A Keevers of Sparke Helmore

Counsel for the Second Respondent:

The Second Respondent filed a submitting notice

ORDERS

NSD 1741 of 2016

BETWEEN:

SZVTB

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

RARES J

DATE OF ORDER:

15 FEBRUARY 2017

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant 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

(REVISED FROM THE TRANSCRIPT)

RARES J:

1    This is an appeal from the decision of the Federal Circuit Court to refuse to grant the appellant Constitutional writ relief in respect of the decision of the then Refugee Review Tribunal given on 6 May 2014 that affirmed the Minister’s delegate’s decision not to grant the appellant a protection visa: SZVTB v Minister for Immigration and Border Protection [2016] FCCA 2421.

Background

2    The appellant is a Muslim citizen of India from Kerala State who was about 28 years old at the time of the Tribunal’s decision. He, originally, arrived in Australia from India on 20 July 2012 on a business short stay visa. On 12 October 2012, he applied to the Minister’s department for a protection visa. The delegate refused to grant the visa on 21 November 2012, and the appellant then applied to review that decision before the Tribunal.

3    The Tribunal considered whether Australia owed the appellant protection obligations in respect of his claims both under the Refugees Convention (s 36(2)(a)) or for complementary protection under s 36(2)(aa) of the Migration Act 1958 (Cth). By that time, the Act had been amended so as to include, as a ground for the grant of a protection visa, that Australia owed an applicant complementary protection obligations pursuant to s 36(2)(aa) because the Minster had substantial grounds for believing that as a necessary and foreseeable consequence of the person being removed from Australia to India, there was a real risk that he or she would suffer significant harm, as defined in s 36(2A).

4    The Tribunal identified that the issue for it was whether it accepted that the appellant was a credible witness. It concluded that he was not.

5    The appellant claimed consistently, from the time that he made his protection visa application through to the hearing in the Tribunal, that the substance of his case was that, he, a Muslim, had fallen in love with a young Hindu girl who was in a financially better position than him and his lower-middle class family. He claimed that the attraction began when she was about 15 years of age and that she promised that, at that time, they would marry when she became mature and he had found a job to support their day-to-day lives. Indian law provided that, in order to marry, males had to be over 23 and females at least 18.

6    The appellant claimed that in 2012 he had a job in Dubai and he planned to return to India to marry the girl when she completed her studies, but that after she revealed their relationship to her family, they initially opposed the marriage. He claimed that she adhered to her decision and that eventually, despite pressure to the contrary from her family and the Hindu community, her parents agreed to the marriage. He claimed that he returned to India on 20 April 2012 to get his and or her parents’ formal permission.

7    He claimed, however, that when he returned to India, his parents had arranged another marriage for him without his knowledge, as a result of their having negotiated for the marriage of his 28 year old sister. He claimed that his sister’s bridegroom’s parents insisted that he, the appellant, marry their daughter and that as he was concerned about his elder sister’s future and under family pressure, despite his not wanting to do so, he accepted his parents’ decision.

8    The appellant said that, somehow, his Hindu fiancée discovered what had happened and attempted suicide. He claimed that she had been admitted to a hospital and produced a document that appeared to be a copy of a hospital record relating to a person whom he said was his girlfriend. He said that her family became very angry about the suicide attempt and considered that the appellant was to blame for it. He claimed that they would not let him visit her in hospital, that they had tried to attack him as an enemy and were planning to kill him. He claimed that he found out about this plan and left his home before a group of Hindu people attacked it later that night. He claimed that when the attackers realised he was not at home, they turned their anger towards his family, broke all the property in the house and set it on fire. He claimed that his father had been attacked and suffered such serious injuries that he had been bedridden ever since.

9    He claimed that as a result of his absence, his sister’s marriage was cancelled. The appellant claimed that this incident caused increased tensions between the Muslim and Hindu communities in Kerala. He claimed that when he left India and returned to his work in Dubai, other people from Kerala, called Malayalis, who were in Dubai, also learnt of the incident and blamed him for bringing shame on his family and upsetting the Muslim and Hindu communities in Kerala. He claimed that, in Dubai, he had borrowed money from friends and, when he fled, was seen as a swindler. He claimed that his co-workers in Dubai, who were all Muslim, convinced his employer to file a complaint there against him that he had absconded with money borrowed from his colleagues and employer. He claimed that if he returned to India he risked being killed by the girl’s family and the Hindu community.

10    The delegate interviewed the appellant and concluded that the essential and significant reason why he had lodged his protection visa application was due to his fear of harm from his ex-girlfriend’s family as a result of the attribution of blame for her attempted suicide. The delegate found that the hospital record might be a forgery and that the appellant had not provided a truthful account about his alleged relationship with the girl. He found that she had not attempted suicide and that there had been no impact on the appellant from those disbelieved events. The delegate also doubted the authenticity of a letter allegedly sent by the appellant’s employer to his parents. The delegate also considered that the appellant could relocate in India. The delegate found there was no evidence that Australia owed the appellant protection obligations under the Refugees Convention.

The proceedings in the Tribunal

11    The appellant gave evidence and submitted arguments to the Tribunal. It did not accept that his claims were true. It found that the appellant’s business visa had been issued on 16 February 2012 and that his assignment to Australia had been organised before he returned to India in April 2012. The Tribunal found that this was inconsistent with his claims that after the incidents following his return to India in April 2012, God was with him and that, at God’s urging, he had received his assignment to come here that saved his life.

12    The Tribunal reviewed the appellant’s evidence of his claims in relation to the girl’s suicide attempt and his family having organised marriages for his sister and himself. It did not accept that the hospital record was genuine. It noted that the hospital’s name, address and contact details were typed in English at the top of the document, but that all the other typed entries were in English in a different font. The document also had handwritten English entries. It found that the full name of the girl whom the appellant had identified as his Hindu fiancée was not included on the hospital record, although two of her names were. It put to the appellant that there was country information that fraudulent documents were easy to get in India and that the hospital record could have been created on a computer and the handwriting added. It recorded that the appellant told it that the document was a scanned copy that he had received from a friend.

13    The Tribunal inquired how the friend could receive a copy of a hospital record and he told it that his friend was also a friend of the girl’s family and must have obtained the copy from her family. The Tribunal did not accept that explanation. It found that a hospital record would not ordinarily be provided to family members or to a girl who had attempted suicide. It found implausible that the appellant had a close friend who was also close friends with his girlfriend’s family, who were intent on killing the appellant.

14    The Tribunal noted that the appellant had claimed during the hearing that he had returned to India because his parents had asked him to go back for his sister’s marriage, yet in his application for a protection visa he had claimed that he had returned to India to get the permission of the girlfriend’s family to marry her. It found that those claims were inconsistent.

15    The Tribunal also found that the appellant had claimed on a number of occasions during the hearing that he and his girlfriend had no agreement that they would marry. The Tribunal found that evidence to be inconsistent with his earlier written claim in his protection visa application that he returned to India in April 2012 to seek his girlfriend’s parents permission to marry her. The Tribunal also found that the appellant’s evidence about the girlfriend’s current state of health was inconsistent. In his application he had asserted that she had attempted suicide, rather than succeeded in suiciding, as indeed the hospital record he produced also evidenced, but that, during the hearing, he claimed that her family members were intent on killing him if he returned to India because she had died.

16    For those reasons, and based on those inconsistencies, the Tribunal did not accept that the appellant was a credible witness. It did not accept any of his claims, including, that:

    he had been forced into an arranged marriage;

    he had a Hindu girlfriend who had attempted suicide;

    her family members had tried, or planned, to attack or kill him,;

    a group of Hindu people had come to his house, broken windows and set it alight;

    his father had been injured;

    his sister’s marriage had not taken place;

    he had fled to a nearby district until he returned to Dubai;

    there had been communal violence between Hindus and Muslims in his village;

    the news of his alleged conduct and the girl’s situation had spread among Malayalis in Dubai so that he had become a criminal in their sight;

    he had been abused in Dubai for causing the problems with his family and community;

    he had to flee Dubai;

    Hindu people were waiting to attack him in India;

    Muslim people in India blamed him for creating a bad impact on their community and religion and putting his sister in peril;

    his co-workers in Dubai, who were all Muslims, convinced his employer to file a complaint against him for cheating the company and his friends by borrowing money, then vanishing, and had registered a complaint against him in India based on those matters; or

    two religious groups and police were hunting him in India.

17    The Tribunal also did not accept any of the appellant’s other claims and, accordingly, was not satisfied there was a real chance that, were he to return to India, the appellant would suffer, in the reasonably foreseeable future, serious harm for any Convention reason or that there were substantial grounds for believing that, as a necessary and foreseeable consequence, there was a real risk that he would suffer significant harm. As a result, the Tribunal affirmed the delegate’s decision not to grant the appellant a protection visa.

The proceedings before the trial judge

18    The appellant filed an application to review the Tribunal’s decision in the Federal Circuit Court that contained three grounds namely, that the Tribunal:

    gave no weight to the documents that he provided in support of his claims, and had erred by assessing his credit without first assessing the substance of the documents which he had provided;

    ignored his religious and relationship background that had put his life at risk and, therefore, ignored relevant material or relied on irrelevant material to make findings that were erroneous or mistaken; and

    ignored an undertaking, that he alleged it had given to him, to provide him with an opportunity to make written submissions about the inconsistencies in his evidence, thus denying him procedural fairness.

19    His Honour explained at the beginning of the hearing the need for the appellant to identify a legal error in the way in which the Tribunal had considered or dealt with his claims. I gave a similar explanation at the beginning of the hearing of the appeal today.

20    His Honour rejected the first ground on the basis that the Tribunal’s findings about the reliability of the hospital record were open on the material before it. He held that there was no basis to conclude that those findings lacked an evident and intelligible justification or that the Tribunal had not engaged actively in an intellectual process when evaluating that document and its genuineness. The trial judge found that it was open to the Tribunal to take into account the appellant’s credit in coming to its adverse findings about the hospital record. His Honour noted that the appellant had argued, as he did again in the appeal, that the Tribunal could easily have enquired of the hospital as to its genuineness by using the telephone or fax numbers on the hospital record. The trial judge found that the genuineness of the document was not readily ascertainable information so as to enliven any obligation or duty of the Tribunal to inquire and, therefore, it had made no jurisdictional error in making its findings about it.

21    His Honour rejected the second ground on the basis that the Tribunal, in fact, had taken into account the whole of the appellant’s claims but had not accepted his evidence about them and that, accordingly, no jurisdictional error on that ground had been established.

22    The trial judge rejected the third ground, saying that there was no material before the Court to suggest that the Tribunal had given any undertaking to provide the appellant with further opportunity to put on material. He held that, in any event, the hearing had occurred on 19 September 2013 and the Tribunal had delivered its decision on 6 May 2014 but that, during that substantial period, the appellant had made no submissions to it. His Honour also found that the Tribunal had no obligation to raise with the appellant any credibility concerns it had in relation to inconsistencies in his account of evidence on which it acted.

23    Accordingly, his Honour dismissed the application with costs.

This appeal

24    The appellant’s notice of appeal was filed on 17 October 2016. It claimed that his application had been dismissed, justice had not been given to him, he had received only a letter recording that his application had been dismissed, and he wanted an exemption from court fees.

25    On 14 October 2016, the registrar made directions for the preparation of this appeal including that the appellant file and serve a written outline of submissions no later than 10 business days before this hearing.

26    The appellant did not file any submissions or amended notice of appeal but did receive a copy of the Minister’s outline of submissions of 7 February 2017.

27    I explained to the appellant that the role of the Court on a judicial review application is confined to determining whether the Tribunal acted in accordance with its obligations under Div 4 of Pt 7 of the Act to afford him a hearing relating to the conduct of the review of the Minister’s delegate’s decision.

28    The appellant argued before me that he needed protection in Australia and that he had given proof of his claims to the Tribunal, particularly the hospital record which supported his claim of his Hindu girlfriend’s attempted suicide. He said that the letter was a real letter, and that the hospital was in a remote place in India where computers were not available, which explained why the hospital record contained entries written by hand. He said that Tribunal could easily have verified the authenticity of the hospital record by calling the hospital. He said that he had not produced a forged document and that the record was correct.

Consideration

29    The issue of the genuineness of the hospital record had been raised before the delegate. At the time of the Tribunal’s hearing, the appellant was on notice of that being an issue in the review: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 165 [42]-[43] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.

30    In Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at 436-437 [25]-[27] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ held that it may be that a failure to make an obvious enquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review and that, if so, such a failure could give rise to jurisdictional error by a constructive failure to exercise jurisdiction. However, they concluded in that case, which was also one concerning the decision of the Tribunal not to accept the authenticity of a document before it without making any enquiry of the apparent maker of that document, that there was nothing on the record to indicate that any further enquiry by the Tribunal, directed to the authenticity of the document, could have yielded a useful result.

31    So too here. There is no material which the appellant gathered between his interview with the delegate, who rejected the genuineness of the hospital record in his written decision on 21 November 2012 and the proceedings before the Tribunal some ten months later on 19 September 2013, or before it made its decision on 6 May 2014, that suggested that any useful result would have been obtained by a further enquiry about the genuineness of the hospital record. Likewise, by the time of the hearing before his Honour the appellant did nothing to establish what any enquiry would have yielded, had the Tribunal made one.

32    The appellant was on notice, because of the delegate’s decision, at the time of the hearing before the Tribunal that the genuineness of the hospital record was an issue. During the course of the hearing the Tribunal also raised concerns about the genuineness of the hospital record. Once again, the appellant did nothing in the intervening months between the hearing and the delivery of the Tribunal’s decision to obtain any material, which he could have submitted, to establish that the document was genuine.

33    In all of those circumstances, I am not satisfied that the Tribunal committed any jurisdictional error on the basis that the appellant asserted, namely because it did not undertake any enquiry about the genuineness of the hospital record: SZIAI 259 ALR at 436-437 [25]-[27]. Even if the Tribunal might have had some obligation to make an enquiry about the genuineness of the document, there is no basis to think that the appellant has been denied procedural fairness based on any failure of the Tribunal to make such an enquiry. There is no basis to consider that the Tribunal failed to carry out its function of assessing whether the appellant had satisfied it of his claims. In my opinion, his Honour correctly rejected the appellant’s first ground.

34    I have not ascertained any basis to conclude that the Tribunal made any jurisdictional error of the kinds alleged in the three grounds before his Honour from the careful review I have made of the material in the appeal papers and of his Honour’s reasons. In my opinion, his Honour correctly rejected each of the three grounds before him as being without substance and not revealing any ground for review. Nor is there any evidence or material before me to suggest that there was any failure by his Honour to deal with the application before him in accordance with law or otherwise fairly.

35    The appellant’s argument, as he frankly put to me, was simply that he wanted protection and that he had proved his case to the Tribunal. That is an understandable argument for a disappointed non-lawyer in his position to put. However, the Court is not in a position to review the merits of the Tribunal’s administrative decision-making. The Parliament has conferred on the Tribunal the function of assessing the credibility of an applicant’s claims that Australia owes him or her protection obligations. It is not the role of the Court to engage in merits review: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1997) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.

Conclusion

36    For these reasons, I am of opinion that the appeal is without substance and must be dismissed with costs.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:    9 March 2017