FEDERAL COURT OF AUSTRALIA

SZSHM v Minister for Immigration and Border Protection [2014] FCA 213

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)

1    This is an appeal against a decision of the Federal Circuit Court refusing the appellants constitutional writ relief: SZSHM v Minister for Immigration [2013] FCCA 1537. The appellants are husband and wife. They sought to set aside the decision of the Refugee Review Tribunal given on 30 October 2012 that affirmed the decision of the Minister’s delegate not to grant each of them protection visas. The appellant wife’s claim was based entirely on her being a member of her husband’s family unit and she did not advance any claim of her own for a protection visa. I will simply refer to them as the husband and the wife.

The proceedings in the Tribunal

2    Both appellants are citizens of India. They applied for protection visas on 9 February 2012. The husband attended and gave evidence before the Tribunal at a hearing. The Tribunal concluded that it did not find the husband to be a witness of truth concerning his claims.

3    The husband had claimed to fear harm from members of the Hindu nationalist Bharatiya Janata Party (BJP) because he was a member and a party secretary of the Congress Party in his local area. He claimed that he had started his own business, become a local business community leader and a secretary of a local business committee. He claimed that he had refused to give further donations to the BJP and was assaulted as a result. He claimed that he had held a press conference to highlight the problems of the business community, including the issue of forced political donations to the BJP, and that subsequently his business had been ransacked and office staff harassed. He claimed that the local BJP member of the Legislative Assembly of his State had told him to withdraw his statements to the press and publicly apologise, he had received threats to his life, and had been warned not to report the matter to the police. He claimed that, as a result, he had suffered from a fever for one or two months because of his fear and had been afraid to leave his house. He claimed that BJP members had tortured him mentally, physically and psychologically. He claimed that, in August 2009, he and his wife had left India and gone to New Zealand, but had left his children in India staying with relatives. He claimed that, about three months after arriving in New Zealand, his house in India had been set on fire because the BJP member of the Legislative Assembly had accused the husband of orchestrating an attack on him. The husband claimed that he feared returning to India because his enemies in the BJP were waiting for him and would beat or kill him upon his return.

4    The Tribunal found that the husband returned to India for several weeks in 2011 because he wanted to find out about his children after the fire. The Tribunal did not accept any of his claims on the basis that it did not consider the husband to be truthful in making them. The Tribunal also found that, if the husband were genuinely in fear of harm in India, he would not have returned there for some weeks in 2011 to visit his children and stay with his relatives where he could easily have been located. It also considered that, if he were genuinely in fear of persecution or death in India, he would have applied to the authorities in New Zealand for protection as a refugee, particularly as he had lived there for two and half years before coming to Australia, and he had learned of the burning of his house within three months of his arrival there.

5    Having considered all of the husband’s claims, both individually and cumulatively, the Tribunal did not accept that he had been harmed in the past or that, were he to return to India, in the reasonably foreseeable future there was a real chance that he would be harmed for reasons of his actual or imputed political opinion or any other Convention reason. The Tribunal was not satisfied that the husband’s claimed fear of persecution was well founded. It found that there were no substantial grounds for believing that there was a real risk that he would suffer significant harm if he were to return to India. Accordingly, the Tribunal was not satisfied that the appellants met the criteria for the grant of a protection or complementary protection visa within the meaning of s 36(2)(a) or (aa) of the Migration Act 1958 (Cth).

The proceedings in the Federal Circuit Court

6    The appellants advanced four grounds in their application to the Court below that the Tribunal erred, namely that:

    before the hearing, it did not give him the country information that it had about politics in India contrary to s 424A of the Act;

    it had no jurisdiction to make the decision, by reason that its reasonable satisfaction had not been reached in accordance with the Act;

    its decision was unjust and made without taking into account the full gravity of the husband’s circumstances, the consequences of his claims and that he had been under immense and intimidating pressure from BJP; and

    it had denied him procedural fairness by reaching adverse conclusions, namely that certain aspects of his claim were implausible, and those conclusions were not obviously open on the known material and without affording him an opportunity to be heard in respect of those conclusions.

7    The trial judge deal with each of those grounds in his reasons. First, he held that the country information concerning the Congress Party in India and the possibility of the husband relocating within that country was information that the Tribunal was excused from providing to him by force of s 424A(3)(a). His Honour also observed that the Tribunal did not appear to have relied on the information because it dismissed the appellant’s claims on the basis that it did not find him to be a credible witness. Secondly, his Honour noted that the appellants had made no submissions in support of the second ground and that there was nothing in the Tribunal’s reasons to suggest that it did not conduct its review according to law. Thirdly, his Honour held that the third ground did not disclose a ground of review and that it assumed as fact the claims that the Tribunal had rejected. Fourthly, his Honour found that the Tribunal had in fact put to the appellant the specific concerns it had with his account and noted his responses before coming to its adverse conclusions in respect of them. Accordingly, his Honour dismissed the application.

This appeal

8    The grounds of appeal in this Court are template grounds. They do not reflect the grounds argued below, nor any engagement with the decision of his Honour in any substantive or intelligible way. The grounds are:

“1.    The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claim 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 Federal Judge has dismissed the case without considering the legal and factual errors contained in the decision of the RRT.”

9    When I sought to ask the appellant why he contended that the decisions of the Federal Circuit Court or the Tribunal were wrong, he simply said that he was not happy with the decision and relapsed into silence. He asked that the Court appoint a lawyer and that it reconsider his case. I pointed out to him that this was the hearing of his appeal and that he needed to explain why it was that he contended that the appeal should be allowed, but he was unable to do so. He said that he was in pain from his back and that he had taken medication this morning for that condition. The appellant provided no medical evidence to support any basis for an adjournment of the hearing and I considered that no adjournment was warranted. He told me that his wife was at home in Griffith and she did not appear when called outside the Court. I adjourned briefly so that the appellant could collect his thoughts, having reminded him that the appeal had been set down for hearing today for some time and that he had had the opportunity to provide the Court with written submissions in advance of the hearing.

10    Neither of the grounds of appeal is particularised. The first ground could have no possible substance given the Tribunal’s detailed consideration of the husband’s claims, its discussion with him of them, the circumstances that caused the Tribunal to doubt them and its subsequent adjudication of them. There is no basis on which that ground could be made out, even if it were open to be argued.

11    Because the appellant was a litigant in person, I consider that the second ground of appeal should be read generously as intending to repeat each of the grounds before the Federal Circuit Court. I am of opinion that none of those grounds has any merit for the following reasons. As his Honour held, by force of s 424A(3)(a), the Tribunal was not obliged to give the appellant independent information it had had about politics in India that it might use as the reason or part of the reason for affirming the decision under review. The Tribunal found that it could not be clear, due to the lack of detail provided by the husband in answer to its questions, whether he was familiar with the policies of the Congress party or not, despite his claim to having been a supporter, member or executive member of it within his local area.

12    The second ground below had, as his Honour found, no substance, since the Tribunal clearly had applied its own reasoning process. It exposed that reasoning in its decision record when it arrived at its state of satisfaction with respect to his claims. The third ground was simply an invitation to the Court to engage in merits review of the Tribunal’s decision. The question whether an applicant for review is credible is quintessentially a matter for the decision-maker, being here the Tribunal: see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 [67] per McHugh J. The third ground of review fails for that reason. The fourth ground of review is likewise an attempt to engage in merits review.

13    The Tribunal put to the husband the matters which it considered raised doubts in its mind about his credibility and gave him a full opportunity to answer. The material with which the Tribunal substantively explored the husband’s accounts consisted of inconsistencies between the evidence he had given at the hearing and his written statement in support of his application for a protection visa. Those matters did not engage any obligation under ss 424A or 424AA by force of s 424A(3)(b) and (ba) or the decision in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 615-617 [17]-[22] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. As his Honour found, the Tribunal clearly put the husband on notice that it had concerns as to his credibility and gave him an opportunity to be heard on those matters.

Conclusion

14    For these reasons, the appeal must be dismissed.

Associate:

Dated:    13 March 2014