SZRTJ v Minister for Immigration and Border Protection

Federal Court of Australia|2013-11-11|Before: Collier J

REASONS FOR JUDGMENT 1 By notice of appeal filed on 18 June 2013 the appellant appeals from a decision of a judge of the Federal Circuit Court of Australia delivered on 5 June 2013 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") dated 7 August 2012.

BACKGROUND AND CLAIMS 2 The appellant is a citizen of India who arrived in Australia on 1 December 2008. The appellant's wife had been granted a student visa to study in Australia so the appellant was granted a visa as part of a family unit. The Department of Immigration and Border Protection ("Department") cancelled the appellant's visa on 26 May 2010 as he had separated from his wife. 3 On 21 November 2011 the appellant applied to the Department for a protection visa. The appellant attended a telephone interview with the delegate on 3 April 2012. On 10 April 2012 the delegate of the Minister refused the application. 4 The delegate had serious concerns about the genuineness and credibility of the appellant's verbal and written claims for seeking protection in Australia, particularly in light of the delay in the appellant applying for a protection visa. For example, there were many contradictions between his written and oral evidence. In his protection visa application the appellant claimed that he was affiliated with the Sikh Student Federation ("SSF") and that as a result he was interrogated and followed by security agents. However, in his interview with the delegate the appellant stated that he had never been a member of the SSF, but that the Indian police had accused him of being linked with the SSF and members of the Khalistan Resistance Movement ("KRM"), who were wanted by the police. The police had interrogated and tortured the appellant after finding his photo in a case linked to KRM members. The appellant claimed his business had closed down and he had had to flee the country. 5 The appellant applied for review of the delegate's decision on 7 May 2012, and attended a hearing before the Tribunal on 27 July 2012, with the aid of an interpreter.

THE TRIBUNAL'S DECISION 6 On 7 August 2012 the Tribunal affirmed the delegate's decision not to grant the appellant a protection visa. It found the appellant to be an unreliable witness because his claims were "general, vague and without the details which would have been expected if the events he was describing had actually happened". There were numerous inconsistencies between the appellant's application for protection, the evidence he had given to the delegate, and the evidence he gave to the Tribunal. In particular: The Tribunal did not accept that the appellant had been arrested on two occasions or that he faced persecution if he returned to India for any reason. The appellant claimed he was held by police for four hours on two separate occasions, but then claimed that the methods of torture used by the police were food and sleep deprivation. The fact that the appellant did not make an application for protection until after he had separated from his wife, rather than when he first arrived in Australia in 2008, undermined the legitimacy and credibility of his claims that he needed protection. The appellant had no documentary evidence to substantiate his claims that he had ever been arrested by police, or sought medical treatment for harm done by them. Based on country information, the Tribunal found that the Khalistan movement had not been significantly active in Punjab since the 1990s and that only "hard-core militants" are targeted by the authorities. On the appellant's evidence to the Tribunal, he was never a member of any political movement and had no political opinions of his own.

THE PROCEEDINGS IN THE FEDERAL CIRCUIT COURT OF AUSTRALIA 7 In the proceedings in the Federal Circuit Court of Australia, the appellant relied on the following grounds: 1. The Refugee Review Tribunal denied the applicant procedural fairness by reaching adverse conclusion that the applicant 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 applicant satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error. 3. The RRT has failed to investigate applicant's claim, specially the grounds of persecution, in India. Therefore, the Tribunal decision dated 8 August 2012 was effected by actual bias constituting judicial error. (Errors in original.) 8 His Honour interpreted ground one as alleging a failure by the Tribunal to provide the appellant with advanced notice of its conclusions. His Honour found that this was not required: SZIUD v Minister for Immigration & Anor [2006] FCA 1555 at [15]. 9 His Honour found that ground two was seeking impermissible merits review of the Tribunal's decision. It was the appellant's duty to satisfy the Tribunal that he had a well-founded fear of persecution. 10 In relation to ground three, his Honour accepted the Minister's submission that the Tribunal was not obliged to investigate the appellant's claims, and nor was there any obvious inquiry that should have been made regarding critical facts in issue. His Honour also accepted the Minister's submission that an assertion of actual bias by the Tribunal must be distinctly made and clearly proven. At the hearing, the appellant submitted that he could not obtain any documentary evidence because his family had cut off all relations with him after the police had tortured them. His Honour dismissed this submission because it was not before the Tribunal and therefore it was not something that the Court could take into account. 11 His Honour found that the Tribunal had not made any jurisdictional error, and dismissed the application with costs.

THE APPEAL PROCEEDINGS 12 By notice of appeal filed on 18 June 2013 the appellant claimed that: 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 Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the RRT. (Errors in original.)

SUBMISSIONS OF THE PARTIES 13 The appellant appeared in person. He did not file any written submissions. His only oral submission was that he had obtained help from a friend in preparing his statement for the Tribunal and the friend had made errors in the statement. 14 In summary, the Minister made the following submissions: The first ground of appeal appears to allege a failure by the Federal Circuit Court Judge to find that the Tribunal acted unreasonably by not assessing the appellant's claims according to s 91R of the Migration Act 1958 (Cth). This was not a ground raised below and nor has the appellant provided any particulars as to the nature of the alleged error by the Tribunal. There is no evidence before the Court to suggest that the Tribunal acted unreasonably or failed to correctly apply relevant statutory provisions. The second ground of appeal is a bare assertion of a failure by his Honour to consider legal and factual errors in the Tribunal decision. The appellant has not identified any error in his Honour's reasons and nor is any jurisdictional error apparent in the reasons of the Tribunal.

CONSIDERATION 15 In my view the submissions of the Minister accurately summarise the grounds of appeal, and identify why there is no substance to those grounds. I find no error in the decision of the Federal Circuit Court, or errors in the reasons of the Tribunal which support a finding of jurisdictional defect. 16 I note in particular that the Tribunal considered (at [91] of its reasons for decision) the inconsistencies in the appellant's evidence before it including the statements his friend had allegedly written in the appellant's "story". In my view the submission of the appellant this morning has no substance. 17 The appeal is dismissed with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

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