FEDERAL COURT OF AUSTRALIA

SZUMH v Minister for Immigration and Border Protection [2015] FCA 878

THE COURT ORDERS THAT:

1.    The name of the second respondent be changed so as to read “Administrative Appeals Tribunal”.

2.    The application be dismissed.

3.    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

1    This is an application for leave to appeal a judgment of Judge Manousaridis of the Federal Circuit Court of Australia delivered on 15 May 2015: see SZUMH v Minister for Immigration and Border Protection [2015] FCCA 1258 (“SZUMH”). The primary judge dismissed an application for judicial review of a decision of the Refugee Review Tribunal to affirm the decision of a delegate of the Minister to refuse the applicant a Protection Class (XA) visa. The primary judge dismissed the application pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) on the basis that he was not satisfied that the applicant had raised any arguable case for the relief sought; that is an interlocutory decision: r 44.12(2).

2    The Minister made an application to amend the name of the second respondent to “Administrative Appeals Tribunal”. I granted that application.

Background

3    The applicant is a male citizen of India. He travelled to Australia on 30 October 2012 holding a three month business (subclass 456) visa which had been granted on 17 September 2012. He applied for a Protection (Class XA) visa on 11 December 2012. A delegate of the Minister refused to grant the visa on 17 July 2013.

4    The basis for the applicant’s claim for protection is set out at [2]-[5] of the primary judge’s reasons as follows (footnotes omitted):

[2]     … the applicant claimed he came from a highly fundamental and conservative Hindu family who were active members of the Bharatiya Janatha Party (BJP). He grew up in an area where Muslims were the majority.

[3]     As a student, the applicant became a member of the “ABVP (most popular party student federation)”. His activities in the ABVP came to the attention of the Muslim Student Federation who informed their Muslim fundamentalist leaders. The applicant was warned to leave ABVP otherwise his life would be in danger. That only encouraged the applicant to work strongly for the ABVP, and then to join the BJP.

[4]     After a municipal conference, there was unrest during which a group of Muslim youths came to the applicant’s house where they abused his wife and parents, threw stones, broke the window glass, and banged on doors. On the same day, the Muslim youth targeted and attacked the houses and businesses of BJP members. The applicant’s family’s grocery business was destroyed during that unrest. The applicant lodged a complaint with the police, and there were presently more than 250 cases pending in connection with the unrest; but the fundamentalists lodged a complaint against the applicant with the intention of compromising the criminal cases brought against them.

[5]     The applicant then went to a neighbouring state. After one week, he was discovered there and attacked. He was hospitalised for ten days. On being discharged, the applicant returned to his area. Fearing harm from Muslim fundamentalists, the applicant left India and came to Australia.

Tribunal Decision

5    The applicant applied to the Refugee Review Tribunal for review of the delegate’s decision on 19 August 2013. The Tribunal’s decision to affirm the delegate’s decision is set out in a Decision Record dated 12 May 2014 to which is attached its Statement of Decision and Reasons.

6    The Tribunal said it had serious concerns about the applicant’s credibility and the veracity of his claims. The Tribunal considered that the applicant gave vague, confusing, contradictory and changing evidence throughout the process about his background, his political work, details of events and who sought to harm him, all matters which were central to his claims. On numerous occasions, he did not answer the Tribunal’s concerns about his changing evidence and inconsistencies in it: Decision Record at [19]-[20].

7    The Tribunal then set out in more detail numerous concerns it had with the applicant’s evidence. The Tribunal found that evidence given at the hearing was inconsistent in a number of important respects with the claims made in his visa application. Inconsistencies and changes in evidence identified by the Tribunal included: the number of times he had been attacked and when and where the attacks occurred; when his original family home and the family grocery business were attacked and destroyed; the timing and cause of his moving to a neighbouring state and the nature of the attack that he said occurred there following which he was hospitalised; why he moved house 3 or 4 kilometres from the original family home to an area which was also dominated by Muslims and a new claim that he was protected by the BJP for a period; the period for which he was out of work (if any) before moving to Australia; a 20 month delay in leaving India following attacks which commenced in 2009; whether a criminal case had been brought against him by fundamentalists; his difficulty in naming correctly or spelling correctly the organisations with which he said he had been involved which cast doubt on his claimed involvement and the authenticity of a letter (which misspelled the name of the BJP) which he said his wife obtained for him concerning his involvement in the BJP; with respect to descriptions of organisations by which he had been attacked; and his action in leaving his parents, wife and child in an area which he claimed was dangerous: Decision Record at [21]-[54].

8    In the result, the Tribunal found that, having considered all of the evidence, the applicant was not a witness of truth, and that he fabricated his claims for the purpose of obtaining a protection visa. On the basis of the adverse credibility finding the Tribunal did not accept as true the applicant’s various claims about what had happened to him in the past and what will happen to him if he returns to India: Decision Record at [57]. The Tribunal considered this issue in light of country information in relation to general violence in the area from which the applicant claimed to come and from the point of view of complementary protection obligations and came to the same conclusion: Decision Record at [59]-[65].

9    In the result, the Tribunal found that the applicant was not a person to whom Australia owed protection obligations, either as a refugee or as a beneficiary of complementary protection.

Federal Circuit Court Decision

10    The applicant applied for judicial review of the Tribunal’s decision by an application filed in the Federal Circuit Court on 6 June 2014. There were five grounds of the application (as written):

1.    The Tribunal denied the applicant procedural fairness by reaching adverse conclusions that certain aspects of his claims were implausible, being conclusions that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.

2.    The Tribunal’s decision was unjust and made without taking into account the full gravity of applicant circumstances and consequences of claims. The Tribunal did not consider the applicant who had been under immense and intimidating pressure from Muslims oranzation.

3.    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.

4.    The applicant satisfy the key elements of Convention definition as detailed in page 16, 17 and 18 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.

5.    The Tribunal failed to investigate applicant claim, specially the grounds of persecution in India. Therefore, the Tribunal decision dated 13 May 2014 was effected by actual bias constituting judicial error.

11    The primary judge considered and dismissed each of the grounds in turn.

12    In relation to ground one, the primary judge found that the ground did not identify the aspects of the claims it was alleged the Tribunal found implausible, the adverse conclusions said to have been made, and the respects in which the Tribunal denied procedural fairness to the applicant: SZUMH at [19]. The primary judge also held that there was nothing in the Tribunal’s reasons which suggested that the applicant was not given notice of the matters on which the Tribunal relied for making adverse findings about the applicant’s credit.

13    Regarding ground two, the primary judge found that the Tribunal identified the claims made by the applicant, and considered those claims and the evidence provided by the applicant: SZUMH at [22].

14    The primary judge found that ground three asserted a legal conclusion without identifying any factual premises upon which the ground could arguably be made: SZUMH at [24]. The primary judge also noted that when he invited the applicant to make submissions in relation to this ground at the hearing, the applicant made a submission about an unrelated matter, being that he was not interpreted properly before the Tribunal: SZUMH at [25]. The applicant had raised no issue concerning interpretation at the Tribunal hearing, and when the primary judge asked the applicant to explain how he knew about problems with the interpretation, he said that he had “sensed it”. The Minister submitted that the assertions were irrelevant because the applicant is confined to the relief sought and grounds mentioned in the application under r 44.13(1) of the Federal Circuit Court Rules. Although the primary judge noted that that would not be fatal if the assertions raised an arguable case, his Honour found that the assertions did not raise an arguable case: SZUMH at [26]. The primary judge observed that the applicant was unable to identify a part of his evidence which was not interpreted correctly, and the applicant did not raise any issues at the Tribunal hearing.

15    In relation to ground four, the primary judge found that the applicant sought impermissible merits review, and that the Tribunal had considered the applicant’s claims and did not accept them because it did not accept the applicant was a witness of truth: SZUMH at [29].

16    Regarding ground five, the primary judge found that the claims that the Tribunal was bound to undertake investigations of its own into the applicant’s claim, that the Tribunal did not consider the applicant’s claims, and that the Tribunal’s decision was affected by actual bias, were all unarguable: SZUMH at [32].

17    In the result, the primary judge held that none of the grounds raised by the application for review raised an arguable case for the relief sought by the applicant.

Application to this Court

18    As the primary judge’s judgment is interlocutory in nature, the applicants require leave to appeal to this Court: s 24(1A), Federal Court of Australia Act 1976 (Cth).

19    In considering whether leave to appeal should be granted, it must be shown that there is sufficient doubt as to the correctness of the judgment below, and that, if the judgment below is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398.

20    The applicant identifies 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 FM dismissed the application without considering the legal and factual errors contained in the decision of RRT.

21    The applicant also filed an affidavit in this Court on 21 May 2015 to which he appends a draft notice of appeal which identifies one ground of appeal (as written):

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.

Consideration

22    The Minister filed written submissions and appeared by his representative. The applicant filed no written submissions and appeared with the assistance of an interpreter.

23    The Minister opposes the grant of leave to appeal on the basis that the grounds in the application and in the draft notice of appeal do not demonstrate that the primary judge’s decision is attended by sufficient doubt to warrant leave to appeal being granted.

24    The Minister submits that:

    the applicant raised template grounds which have been considered and dismissed on many occasions by this Court and the applicant essentially seeks impermissible merits review;

    the Tribunal did consider, but did not accept, the applicant’s claims. There was no unreasonableness on the part of the Tribunal. Its reasons were detailed and its findings did not lack evident and intelligible justification. Its findings, including its adverse credibility findings, were open to it on the evidence and for the reasons which it gave; and

    the conclusion that there was no arguable case for the relief sought was open to the primary judge on the material before him and for the reasons which he gave.

25    Recognising the difficulty faced by unrepresented applicants, I asked the applicant to explain what he meant by each of his grounds. His complaint was that the Tribunal did not investigate his claims. In particular he said that he was not able to get evidence of his hospitalisation because of the distance involved. He said that the dangers he faced in India remained and he needed more time to get evidence. He asked that the matter be remitted back to the Tribunal to consider any evidence from India which he is able to obtain.

26    It is well established that it is for an applicant for a protection visa to satisfy the decision maker that the criteria for the grant of a visa have been met and that there is no general obligation on the Tribunal to make enquiries, although there may be circumstances in which the obligation to undertake a review may entail the need to enquire into a critical fact the existence of which is easily ascertained: Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 at [25]-[26]. Hospital records maintained in India fall well outside that ambit. The applicant suggested to the Tribunal that he wished to provide evidence of his hospitalisation to the Tribunal and explained that he had not obtained it after the matter was first raised with him by the Minister’s delegate in April 2013 because no-one was able to get the records as the hospital was 50 kilometres from his home. The Tribunal told the applicant that it would not make its decision for a period of seven days after the hearing held on 1 May 2014 to enable him to get the records if he wished to do so: Decision Record at [16]. The Decision Record was issued on 12 May 2014, indicating that the Tribunal observed its undertaking. The Tribunal therefore provided the opportunity for the applicant to present the evidence which he now seeks another opportunity to present to the Tribunal.

27    This basis for the grant of leave must be rejected. The primary judge did not err when he rejected the same argument by the applicant: see SZUMH at [32].

28    I accept the Minister’s submissions. I have carefully considered the Tribunal’s Decision Record and the primary judge’s reasons. The grounds raised by the applicant do not identify any arguable case of appellable error on the part of the primary judge or jurisdictional error on the part of the Tribunal.

29    I will dismiss the application for leave. I will order that the applicant pay the first respondent’s costs as agreed or taxed.

Associate:

Dated:    18 August 2015