SZVBB v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 The appellant appeals against a judgment of the Federal Circuit Court of Australia given on 25 August 2015. By that judgment, the Federal Circuit Court dismissed the appellant's application for review of a decision of the Administrative Appeals Tribunal ("the Tribunal") affirming a decision of the first respondent to refuse the appellant the grant of a Protection (Class XA) visa. 2 The grounds of the application to the Federal Circuit Court and the appeal to this Court focus on the refusal of the Tribunal to take oral evidence by telephone from the appellant's wife and brother in India. 3 For the reasons that follow, the appeal must be dismissed.

the tribunal's decision 4 The appellant is a citizen of India. On 25 June 2013, he applied for a protection visa. On 24 January 2014, a delegate of the first respondent made a decision refusing the grant of the visa. 5 The appellant then applied to the Tribunal for review of the delegate's decision. 6 On 30 July 2014, the appellant appeared before the Tribunal to give evidence and present oral argument. The Tribunal's hearing was conducted with the assistance of a Malayalam language interpreter. 7 In a form entitled "Response to Hearing Invitation", the appellant requested that the Tribunal take oral evidence from his wife in India and stated that her evidence was relevant because "She suffered from the same trauma that I did whilst in Kerela". He also requested that the Tribunal take oral evidence from his brother as the brother "was contacted by the people after my life, and he was warned against the consequences". 8 The appellant claimed protection on the basis that Muslims in the area in which he lived in India would harm him because of activities he and his father had undertaken for the Bharatiya Janata Party ("BJP") and Rashtriya Swayamsevak Sangh ("RSS") political party, and because he was a Hindu priest. 9 The appellant gave evidence before the Tribunal that after he finished his high school education in 1987 he set up a photocopying shop. He said he assisted the BJP and RSS by making copies of leaflets, attending party meetings and going to houses to persuade people to support those parties. He claimed that because of these activities, Muslims came and attacked the shop, damaged it and set it on fire. 10 The appellant closed the shop in approximately 1992. He then worked as a priest at a temple, while continuing to undertake political activities for the BJP and the RSS. He did this until 2007 when he travelled to the United Kingdom where he lived for approximately five years. He said that he had left India and went to the United Kingdom because of his fear of being harmed by Muslims. 11 The appellant returned to India in 2012. He said that he resumed his activities with the BJP and RSS. He gave evidence of an incident where he and some others from the RSS warned a Muslim man against forcing a Hindu woman to marry him. He claimed that in response some Muslims came to his home, threw stones at it, damaged his bike, made threatening phone calls to him and attacked his temple. 12 The appellant also gave evidence that in June 2012 his father was killed when he was hit by a truck. The appellant believed that this was an attack by Muslims because his father was involved with political parties and was also a priest at the temple. He claimed that he went to the police to complain, but the police were influenced by Muslims and said that the incident was a traffic accident. He said that as a result of his complaint to police, the Muslims would come to his house once in a while and threaten to kill him and they punched him on one occasion. 13 The Tribunal noted a number of inconsistencies between the appellant's evidence to the Tribunal and other statements he had made. Such inconsistencies included his failure, in the parts of the visa application form requiring details of countries of former habitual residence and countries other than his home country to which he had travelled, to mention that he had lived in the United Kingdom from 2007 to 2012; saying instead that he was in India from 2003 to 2013. Another example is that the applicant told the delegate that he had lived in Saudi Arabia from 1990 to 1998, but said that he had forgotten to tell the Tribunal that. Another example was that he was asked by the Tribunal whether his temple was ever set on fire and responded that he could not remember, whereas in a written statement he had asserted that the temple was set on fire as a result of the attack by Muslims in 2012. The Tribunal noted that even though the appellant claimed to have fled from India to the United Kingdom in 2007, he did not seek asylum there and returned to India. There were a number of other inconsistencies and improbabilities noted by the Tribunal. 14 The Tribunal decided that the appellant's claims were false. It found that there was no real chance that the appellant would suffer serious harm in India, and that he did not have a well-founded fear of persecution based on any Convention ground. The Tribunal also found that the appellant did not meet the complementary protection criterion. It affirmed the delegate's decision not to grant the appellant a protection visa. 15 In the course of its reasons, the Tribunal discussed the appellant's request to obtain telephone evidence from his wife and brother in India. The Tribunal said: 22. In addition, in his response to the hearing invitation, the applicant gave the name of his wife and brother in India and their telephone numbers for the Tribunal to contact them and receive evidence from them over the telephone. The Tribunal is cautious in taking evidence from witnesses over the telephone from other countries without the benefit of having those persons before the Tribunal in person to be able to be certain of their identity and that they are giving an independent account of events. Further, proceedings before the Tribunal are in private and the Tribunal told the applicant at the hearing that if it was to telephone his wife and brother those calls could be intercepted and the privacy of the hearing would be breached. 23. The applicant said that his wife and brother would tell the Tribunal that he had to leave India because of the difficulties he had with Moslems due to his political activities. The Tribunal decided not to telephone the applicant's wife and his brother because it could not see that this would benefit the applicant in the assessment of his credibility. The concerns about his credibility set out above so significantly discredit him as a witness that claims made by witnesses in other countries purporting to corroborate what he has said would not persuade the Tribunal that this applicant has given a truthful account. In the Tribunal's view, they would only be attempting to corroborate what is a false account.