SZVUO v Minister for Immigration and Border Protection

1. The application for leave to appeal be dismissed.
2. The applicant pay the first respondent's costs as taxed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

NICHOLAS J: 1 This is an application for leave to appeal from a judgment of a Judge of the Federal Circuit Court of Australia (Judge Street) given on 28 April 2016. By that judgment, the primary judge dismissed the applicant's application for judicial review of a decision of the Refugee Review Tribunal (as it then was) ("the Tribunal") dated 13 November 2014 affirming a decision of a delegate of the first respondent ("the Minister") not to grant a protection (Class XA) visa. His Honour dismissed the applicant's application for judicial review pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) ("the FCC Rules") on the basis that it did not raise an arguable case for the relief sought. 2 The applicant is a male citizen of India. He arrived in Australia on 5 May 2013 on a business visitor subclass 600 visa using his Indian passport. The visa permitted him to stay until 5 August 2013. The applicant applied for a protection (Class XA) visa on 18 July 2013. He claimed to fear harm in India because he was a Moslem man from Tamil Nadu who was involved in a Tamil Moslem party. The applicant claimed his shop was attacked on one occasion, that he sustained wounds after a confrontation with members of a Hinduist extremist party, and the same people came to his home to find him and threatened his family. The applicant claimed he also became involved in an anti-nuclear energy movement and took part in a protest. He claimed that because of this, the authorities conducted a raid on his house and shop and arrested and detained him. 3 A delegate of the first respondent refused to grant the visa on 23 January 2014. The applicant applied to the Tribunal for review of the delegate's decision. He appeared at a hearing before the Tribunal on 12 November 2014. 4 On 13 November 2014, the Tribunal affirmed the decision not to grant the applicant a protection visa. The Tribunal was not satisfied that the applicant was a witness of truth and rejected the applicant's claims in their entirety. The Tribunal found that the applicant did not satisfy the criteria for grant of the visa in either s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth) ("the Act"). 5 The particular grounds relied upon by the Tribunal in finding that the applicant was not a witness of truth are set out in paragraphs [13], [18], [19] and [20] of the Tribunal's Statement of Decision and Reasons ("Tribunal Reasons"). For the most part, those matters relate to perceived inconsistencies in the applicant's written and oral accounts of his prior experiences. 6 The Tribunal did not accept that the applicant was or had ever been a Muslim activist or that he feared harm from Hindu extremists or associated political groups or the police. It rejected his claims on that basis. The Tribunal found that the risk of the applicant suffering serious or significant harm on the ground of his religion to be remote based on the country information before it: see Tribunal Reasons at [21]-[27]. 7 The applicant sought judicial review of the Tribunal's decision. The applicant relied on the grounds pleaded in that application, which were as follows: 1. The Tribunal failed to consider an integer of the Applicant's claim, in failing to consider whether or not a Muslim activist (regardless of their specific claims of affiliation or past persecution) in India was at risk of harm and not able to access effective protection. 2. The Refugee Review Tribunal denied the Applicant procedural fairness by reaching adverse conclusion that the inconsistencies between the applicant's oral evidence and written statement, being conclusion that were not obviously open on the known material, without giving the applicant to make a written comments in respect of those matters. 3. The Second Respondent committed jurisdictional error by failing to address applicant's claim in the way it was made: (a) The applicant stated in his protection visa application that he was a secretary of TMMK from 2001 to 2010. (b) The applicant was involved in protests and demonstrations for demanding rights of Muslims community. (c) His business was ransacked by the Hindu extremists group RRS during the religious conflict in the town. (d) The applicant was arrested and detained by police for three days. (errors original) 8 The Federal Circuit Court convened a show cause hearing which took place on 18 February 2015. At the hearing, the Court explained to the applicant that the question which it was required to decide was whether he had an arguable case for the relief claimed and, in particular, whether it was reasonably arguable that the Tribunal's decision was affected by legal error. 9 The primary judge ordered that the application be dismissed, pursuant to r 44.12 of the FCC Rules. I will say a little more about his Honour's reasons for arriving at that decision shortly. 10 The applicant now seeks leave to appeal from the primary judge's judgment. The proposed grounds as set out in the draft notice of appeal are as follows: 1. The Hon. Judge 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 Judge dismissed the case without considering the evidence filed with the affidavit. (errors original) 11 At the hearing of the application for leave to appeal the applicant made some brief oral submissions with the assistance of an interpreter. In essence, he reiterated his claim that he could not return to any part of India due to threats that Hindu extremists posed to him in that country. There was no identification in his submissions of any error in either the Tribunal or the primary judge's reasons beyond a general complaint as to the alleged unfairness of the Tribunal's ultimate conclusion. 12 The first of the two proposed grounds appears to raise a complaint that the decision of the Tribunal was manifestly unreasonable, although it also includes a reference to section 91R of the Act. The reference to this provision in ground 1 goes nowhere. There does not appear to be any suggestion that that section has been misconstrued or misapplied in the circumstances of this case. The fact that it was not expressly mentioned by the Tribunal's Reasons is understandable given the basis for the Tribunal's decision. 13 In respect of the application for review before the primary judge, his Honour said at [12]-[14] of his reasons: [12] In relation to ground 1, it is clear the Tribunal found that the account of the events on which the applicant's protection claims are based was false. In particular, the Tribunal disbelieved the applicant's claims that he joined a Tamil Muslim party, that he undertook political activities, that he became involved in an anti-nuclear movement and that he participated in protests. Those adverse findings as to the credibility of the applicant were open on the material before the Tribunal. The adverse findings cannot be said to lack an evident and intelligible justification. [13] Having disbelieved the applicant in relation to his claims to be a Muslim activist, it was not necessary for the Tribunal to consider whether a Muslim activist in India was at risk of harm and not able to access effective protection. The Tribunal did accept that the applicant was a Muslim and did consider the applicant's claim to fear harm in India on that basis. [14] The Tribunal put to the applicant the country information to the effect that the Indian laws provide for protection of religious freedom, and that there was a large Muslim population in India. Having found that the risk of the applicant suffering serious or significant harm on the ground of his religion to be remote, the adverse findings by the Tribunal in relation to the criteria under ss.36(2)(a) and 36(2)(aa) are open. For the reasons given, it is clear the Tribunal did address the integers of the applicant's claims but made adverse credibility findings that were open to the Tribunal to make. Nothing said by the applicant from the bar table identified any basis upon which ground 1 could be said to identify any arguable case of jurisdictional error. Ground 1 fails to identify any arguable jurisdictional error. 14 I agree with his Honour that it was open to the Tribunal to find that the applicant was not a witness of truth. I also agree with his Honour that no arguable case of jurisdictional error was raised by the applicant. 15 As to the second ground of appeal, it appears to raise a complaint that the primary judge did not consider the evidence before him, being evidence filed for the first time in the Federal Circuit Court. His Honour stated at [9]-[10] of his reasons: [9] The orders that were made on 18 February 2015 also provided the applicant with an opportunity to file an amended application, affidavit evidence and submissions. The applicant did file an affidavit that purported to annexe information relating to his claims that was not before the Tribunal. The applicant confirmed that the material was material that he did not have available at the time of the hearing before the Tribunal. [10] The Court is not in a position to make fresh findings of fact in relation to the applicant's claims and the material in the affidavit was not relevant to the jurisdictional issues before this Court, and it was on that ground that the tender of that affidavit material was rejected. No other documents were filed by the applicant. 16 It is clear that his Honour had regard to the additional evidence prior to rejecting it on the basis that it was not relevant. I respectfully agree with his Honour's conclusion that the evidence tendered was irrelevant to the grounds of review advanced by the applicant. 17 I am satisfied that the proposed appeal has no prospects of success. In those circumstances I am not satisfied that there will be any substantial injustice to the applicant in the event that his application for leave to appeal is refused. Leave to appeal will be refused on that basis. 18 The application for leave to appeal will be dismissed. The applicant must pay the first respondent's costs of the application for leave to appeal as taxed or agreed. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas.