FEDERAL COURT OF AUSTRALIA

SZRUY v Minister for Immigration, Multicultural Affairs and Citizenship

[2013] FCA 806

THE COURT ORDERS THAT:

1.    The name of the first respondent be changed to Minister for Immigration, Multicultural Affairs and Citizenship.

2.    The appeal is dismissed.

3.    The appellants pay the costs of the first respondent.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    By notice of appeal filed on 3 June 2013, the appellants appeal from a decision of the Federal Circuit Court of Australia on 21 May 2013 (SZRUY and Anor v Minister for Immigration and Anor [2013] FCCA 326 (SZRUY)) dismissing an application for judicial review of a decision of the Refugee Review Tribunal (Tribunal) made on 28 August 2012.

2    The first respondent (Minister) was represented at the hearing of the appeal and provided written submissions on which the Minister relied. The appellants appeared in person with the assistance of an interpreter; they did not provide written submissions.

background

3    The appellants are a husband and wife who are citizens of India. They arrived in Australia on 21 April 2008 on a Subclass 573 Higher Education Sector visa which was valid until 11 September 2010. On 12 May 2011 the husband applied for a Protection (Class XA) visa. The husband travelled on a passport issued in November 2004. The husband made claims for protection and the wife applied as a member of his family unit; she made no claims of her own. On 17 November 2011 the delegate of the Minister (Delegate) refused their application; the appellants failed to appear at an interview with the Delegate. On 6 December 2011, the appellants sought review by the Tribunal of the Delegate’s decision.

claims to protection

4    The husband claimed to have been an active member of the All India Sikh Students Federation (AISSF) and a supporter of the Khalistan movement. He claimed that he was interrogated by government agencies on numerous occasions, closely followed and accused of having links with the Pakistani Inter-Services Intelligence. He claimed that the school at which he taught was attacked in 2005, 2006, and 2007, and that it was subsequently closed in February 2008. He claimed to have complained to the police but that nothing was done.

5    The husband claimed that his two brothers were beaten by the police during an interrogation and have now left India (living now in Canada and Italy). He claimed that many members of the AISSF have disappeared, been detained for months or years without trial, and have been killed in custody. He claimed that innocent people were arrested solely for being related to, or living in the same village as, members of the opposition groups. He also claimed that undercover agents infiltrated the AISSF and killed members of the organisation or committed violent acts in their name to discredit them.

6    The husband claimed to fear that because he was perceived as a possible sympathiser of the Khalistan movement, he would be at risk of detention, interrogation and torture if there was any problem concerning any alleged incident or attack by Sikh groups accused of links with the Khalistan movement.

the tribunal’s decision

7    Written submissions by the Minister before the Judge of the Federal Circuit Court (as recorded at [26] of SZRUY) and this Court are in substantially the same form and accurately summarise the decision of the Tribunal. For convenience I will repeat them:

10. The RRT found on the basis of country information that the tensions which existed in India, and particularly in Punjab, and the risk of harm to Sikhs in India and in Punjab, had subsided to the point of not amounting to a real risk in the foreseeable future (see [62]).

11. The RRT found that there was nothing to indicate that AISSF members or sympathisers were ill-treated by the authorities in India or in Punjab and concluded that the appellant did not face a real chance of harm in India due to his Sikh religion or support for Sikh political issues (see [63]-[66]).

12. The RRT also found that the appellant did not have a genuine fear of harm on the basis of the delay in his lodging an application for protection both after his arrival in Australia and after his Student visa expired, and his delay in departing India after receiving his passport. The RRT considered that this lack of genuine fear supported its conclusions that the applicant did not face a real chance of serious harm in India (see [67]-[68]).

13. The RRT concluded that the appellant did not [have] a well-founded fear of persecution for the purposes of the Refugees Convention and that there was not a real risk that he would suffer significant harm as a consequence of being removed to India for the purposes of the complementary protection provisions in the Migration Act 1958 (Cth) (the Act)(see [70]-[71]).

the proceeding before the federal circuit court

8    The appellants applied to the Federal Circuit Court of Australia on 25 September 2012 for review of the decision of the Tribunal. They relied on the following grounds:

1. The Tribunal did not give to the applicant before the hearing the independent information that it had about the AISSF. The Tribunal used this information (RRT decision record pages 9 to 11). This was against section 424A of the Migration Act 1958.

2. The Tribunal failed to consider an integer of the applicant’s claims, in failing to consider whether or not a AISSF member in India was at risk of harm from radical Hindus and government agencies, and not able to access effective protection whilst the Delegate of the Minister and Tribunal formed the view that the applicant was a credible witness.

3. The Tribunal failed to consider properly the test whether the applicants would suffer serious harm as per s 91R(2)(a) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do), if they asked to relocate in India. The Tribunal failure to satisfy this statutory obligation was a serious jurisdictional error caused by the Tribunal.

9    The written submissions filed with the Federal Circuit Court by the husband on 6 November 2012 asserted that the Tribunal failed to assess his claims as required under s 414 of the Act and that the Tribunal failed to accord procedural fairness because it gave the husband’s claims little weight due to the inconsistencies in the husband’s application for a protection visa and his delay in seeking protection: see [38] of SZRUY.

10    In relation to ground one, her Honour found that the country information of which the appellant complained was excluded from the obligations of s 424A by s 424A(3)(a). In any event, her Honour found that the relevant country information was put to the husband for comment at the hearing. Her Honour found that there was no other information before the Tribunal to which it had regard that enlivened any s 424A obligation. Accordingly, the first ground was not made out.

11    As to ground two, her Honour found that a fair reading of the decision record made it clear that the Tribunal considered the relevant integer of the husband’s claim, that is, whether a member of the AISSF was at risk of harm from Indian authorities. In relation to the husband’s contention that the Tribunal failed to consider whether the husband was at risk of harm from radical Hindus, her Honour noted that the Tribunal must only respond to the case advanced by an applicant. Her Honour found that no such claim had been made by the husband before the appeal to the Federal Circuit Court, nor did such a claim arise squarely from the evidence and material before the Tribunal. To the extent that ground two asserted that the Delegate formed the view that the appellant was a credible witness, her Honour found that such an assertion misunderstood the Delegate’s reasons. Accordingly, ground two was not made out.

12    Given the Tribunal’s comprehensive rejection of the husband’s claims, her Honour found that there was no obligation for the Tribunal to consider the issue of relocation. Accordingly, ground three was not made out.

13    In relation to the husband’s written submissions, her Honour noted that they were unsupported by particulars, evidence or further submissions. Ultimately, her Honour found that the Tribunal’s findings were open to it on the evidence and materials before it and for the reasons it gave. Her Honour also found that credibility findings were a matter for the Tribunal.

14    In these circumstances, her Honour found that the Tribunal’s decision was not affected by jurisdictional error and the application was dismissed with costs.

The appeal proceedings

15    The appellants’ grounds of appeal to this Court are:

1. The FM failed to consider that the Tribunal had denied the applicant procedural fairness reaching adverse conclusions that the applicant claims were implausible, being conclusions that were not obviously open on the known material.

2. The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the RRT. The Tribunal has failed to investigate Applicant claims, specially the grounds of persecution in India.

First ground

16    The husband made no written or oral submissions in relation to the first ground of appeal and no particulars of this ground were provided.

17    On my review of the Tribunal’s reasons, the husband was given an opportunity to present evidence and argument to the Tribunal. The country evidence in relation to the position of Sikhs and members of AISSF in Punjab and India, the delay by the appellants in making a protection claim following their arrival in Australia on a student visa and the delay by the husband in leaving India following his successful application for a passport are all factors the Tribunal could reasonably take into account in forming a view of the credibility of the husband’s claims for protection made in the statement attached to his application for a protection visa and to the Tribunal. The Tribunal specifically put to the husband its issues of concern based on the country information and the issues of delay; the husband therefore had an opportunity to address those issues. Her Honour considered the husband’s claim concerning procedural fairness at [54]-[61] of SZRUY. I find no error in either her Honour’s finding that this ground is not made out or in her statement of law on which that finding was based.

18    Accordingly, the first ground of appeal is not made out.

Second ground

19    The husband provided no particulars of this ground.

20    At the hearing of the appeal, the husband said that the Tribunal had been advised of the danger he faced in India. Despite the country information, the husband says that there is fear of persecution in India and that has not changed: the Tribunal did not give particular consideration to that issue.

21    The Tribunal plainly did consider the husband’s claims to fear danger in India. At [25] of the Tribunal’s decision record, it set out the husband’s written statement which accompanied his visa application. The husband was invited to state in his own words what he feared would happen if he returned to India [32]; he was invited to speak specifically about AISSF [33]; the fact that the government in Punjab is a coalition which includes his own party was put to the husband [34]; the Tribunal pointed out that available information indicated no current harassment or persecution of Sikhs or former members of AISSF [35]-[36]. His particular circumstances were also addressed [38]-[43]. Having regard to the husband’s response recorded in these paragraphs, I do not consider that there is a demonstrated failure by the Tribunal to appreciate the nature of the husband’s claims: the Tribunal simply does not accept them. In the face of the country information available to the Tribunal, and in the nature of the material provided to the Tribunal by the husband to support his claims, it appears that the Tribunal’s findings at [62]-[68] and the conclusions which it then drew were open to it. In those circumstances, the husband’s claim that there is continued fear of persecution in India amounts to a request to the Court for impermissible merits review of the Tribunal’s reasons and reveals no error by her Honour.

22    Further, in so far as this ground asserts an obligation on the Tribunal to investigate the husband’s claims, it cannot be made out. First, no such claim was made before her Honour, so she can have made no error by failing to consider it. Second, had her Honour been asked to consider it, she must have rejected it. I accept the Minister’s submissions that it is well established (1) that the Tribunal is not obliged to conduct enquiries to gather information to support an applicant’s claim; and (2) to establish jurisdictional error, an applicant would need to be able to show that there had been an obvious inquiry that the Tribunal could have made about a critical fact, the existence of which was easily ascertained: see Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 at [36] and Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15 at [20]-[25]. The husband has not demonstrated the existence of any issue of this kind.

23    Accordingly, the second ground has not been made out.

Conclusion

24    For these reasons I will dismiss the appeal. The appellants must pay the Ministers costs of the appeal.

Associate:

Dated:    12 August 2013