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[2016] FCA 174
Federal Court of Australia
2016-03-03
Gleeson J
Original judgment source is linked above.
GLEESON J: 1 The appellant appeals from a decision of a judge of the Federal Circuit Court of Australia ("FCCA") dismissing his application for judicial review of a decision of the Refugee Review Tribunal ("Tribunal"): SZUZN v Minister for Immigration & Anor [2015] FCCA 3137. The Tribunal's decision was to affirm the decision of a delegate of the Minister for Immigration and Border Protection ("Minister") not to grant the appellant a Protection (Class XA) visa.
Background Facts 2 The appellant is a male citizen of India, aged 36 years. He arrived in Australia on 6 July 2009 on a spouse student visa which expired on 15 March 2012. The appellant held other visas which expired on 3 April 2012 and 1 October 2012 respectively. He remained in Australia without a visa from 2 October 2012 to 19 June 2013. 3 The appellant lodged an application for a protection visa on 19 June 2013. The appellant claimed to fear harm from followers of the Sikh religion and from Indian police if he were to return to India because he is a devotee of Dera Sacha Sauda ("DSS") guru Ram Rahim Singh ("Baba Ji"). 4 The delegate of the Minister refused the application for a protection visa on 17 December 2013. 5 On 13 January 2014, the appellant sought a review of the delegate's decision by the Tribunal. The Tribunal conducted a hearing, at which the appellant attended, on 23 July 2014. On 1 August 2014, it affirmed the delegate's decision. 6 The Tribunal made comprehensive adverse credibility findings in respect of the appellant. It found that he was "not a witness of truth" and did not accept that he was ever a follower of DSS or Baba Ji. 7 The Tribunal noted that the appellant could provide "very little information regarding his claimed religion" and "was unable to provide much explanation of his own religious beliefs." The Tribunal found that the appellant's explanation for his attraction to DSS was "vague and insubstantial" and considered that the appellant was "unable to demonstrate a level of knowledge and understanding of [DSS] to be expected of someone with his claimed involvement and dedication." 8 The Tribunal found that the appellant displayed "very little knowledge" about the practices of DSS and that evidence of the appellant's own practice of DSS was "quite minimal". Further, the Tribunal found that the appellant's actions in Australia demonstrated that he did not have "any real interest" in DSS. 9 The Tribunal found the appellant's claims in relation to various threats and attacks at the hands of Sikhs were "vague and inconsistent", noting inconsistencies relating to the nature of, occurrence of, and circumstances surrounding, various claimed threats and attacks. Similarly, the Tribunal found that the appellant's claims relating to his experiences when he returned to India in 2012 were "inconsistent and unpersuasive", concluding that it was not credible that the appellant encountered any problems from Sikhs in 2012. 10 The Tribunal found that the appellant was "evasive" when talking about his and his family's connection to the Sikh religion and his evidence in this regard was "inconsistent", noting that the appellant could not explain why it was written in his protection visa application that he was Sikh. 11 The Tribunal found that the appellant's explanation that he returned to India in 2012 because he was tense about his divorce, and the delay in applying for a protection visa, undermined his claim to fear harm. 12 For these reasons, the Tribunal was not satisfied that the appellant met the refugee criterion under s 36(2)(a) of the Migration Act 1958 (Cth) ("the Act"). On the basis of its anterior credibility findings, the Tribunal was not satisfied that there were substantial grounds for believing that the appellant faced a real risk of significant harm and accordingly found that he failed to satisfy the complementary protection criterion under s 36(2)(aa) of the Act. 13 The grounds for the application to the FCCA for judicial review of the Tribunal's decision were: (1) the Tribunal made an error law by not understanding or attempting to understand what a Sikh is; (2) the Tribunal made an error of law by not understanding what the DSS or what a follower of DSS is; (3) the Tribunal made an error of law by not understanding the differences between DSS and Sikhs; (4) the Tribunal made an error of law by not understanding the followers of Ram Rahim Singh were also at risk as shown by independent information. 14 The FCCA judge dismissed the application. His Honour noted that the grounds of the application for review were not particularised (at [27]). 15 In summary, the FCCA judge concluded that grounds 1, 2 and 3 were simply expressions of disagreement with the Tribunal's findings of fact, made within jurisdiction and not susceptible to review by the FCCA (at [36]). The FCCA judge noted (at [32]) that the appellant did not give the FCCA any explanation of the grounds, and (at [33]) that the Tribunal's reasons revealed that it understood that there was a difference between DSS and Sikhism. At [34], his Honour noted that "on a plain reading of the Tribunal's reasons, the central element in its decision was based on the comprehensive rejection of the applicant's credibility and on the subsequent factual basis on which he claimed to fear harm." 16 As to ground 4, the FCCA judge found that the Tribunal did have regard to relevant country information and understood that followers of DSS had experienced harm in India (at [42]). 17 At [43]-[44], the FCCA judge concluded: 43. … what the applicant's ground fails to understand was that the Tribunal found, for reasons that were reasonably open to it, that the applicant was not a follower of DSS or, indeed, of Baba Ji. As I stated earlier, this was because of the Tribunal's comprehensive rejection of the applicant's credibility. It is well settled that an adverse finding as to the credibility of an applicant's claims is a finding of fact made by the Tribunal ([Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham High Court of Australia [2000] HCA 1; 168 ALR 407]). As long as the Tribunal gives reasons which are reasonably open to it, then this Court cannot intervene to change such findings of fact. 44. In essence, therefore, the applicant's ground can only be seen as a challenge to the facts as found by the Tribunal, and it seeks for this Court to engage in impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259). Ground four also is not made out.
gROUNDS OF aPPEAL 18 The grounds stated in the notice of appeal: (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.91 R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation. (2) The Federal Circuit Court failed to take into consideration that the Tribunal's decision was unjust and was made without taking into account the full gravity of my circumstances and consequences of the claim. 19 The appellant did not file written submissions in support of the appeal. 20 At the hearing of the appeal, the appellant appeared for himself with the assistance of a Punjabi interpreter. 21 The appellant submitted that he had already said his case and that if he has to return to India, his life is in danger. He asked this Court to have a proper look at his case.
Consideration 22 The grounds of appeal are "template" grounds, that do not reflect the grounds for the application to the FCCA and do not engage with the decision of the FCCA judge in a meaningful way: cf., SZSHM v Minister for Immigration and Border Protection [2014] FCA 213 at [8]; SZTGX v Minister for Immigration and Border Protection [2014] FCA 1201 at [14]. 23 As Griffith J relevantly said in AAX15 v Minister for Immigration and Border Protection [2015] FCA 1206 at [18]: The FCCA cannot be criticised for failing to consider whether the Tribunal acted in a "manifestly unreasonable way" when no such contention was advanced before it to that effect by the appellant. 24 The appellant's oral submissions did not identify any possible error on the part of the FCCA judge. I have read the decisions of the FCCA and the Tribunal and I have not identified any appellable error. In particular, I can see nothing in the Tribunal's decision record which might suggest any unreasonableness in its fact finding or which might suggest that the Tribunal's decision was made without taking into account the appellant's circumstances or without considering whether he had a well-founded fear of persecution for a Convention reason.
Conclusion 25 The appeal must be dismissed with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson.
SZUZN
Minister for Immigration and Border Protection