FEDERAL COURT OF AUSTRALIA SZRSZ v Minister for Immigration and Border Protection [2013] FCA 1171 Citation: SZRSZ v Minister for Immigration and Border Protection [2013] FCA 1171 Appeal from: SZRSZ v Minister for Immigration and Citizenship [2013] FCCA 524 Parties: SZRSZ, SZRTA and SZRTB v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: NSD 1180 of 2013 Judge: FOSTER J Date of judgment: 6 November 2013 Cases cited: SZRSZ v Minister for Immigration and Citizenship [2013] FCCA 524 Date of hearing: 6 November 2013 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 17 Solicitor for the Appellants: The First Appellant appeared in person with the aid of an interpreter The Second and Third Appellants did not appear Solicitor for the First Respondent: Mr R White of Sparke Helmore Solicitor for the Second Respondent: The Second Respondent submitted save as to costs IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1180 of 2013 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: SZRSZ First Appellant SZRTA Second Appellant SZRTB Third Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: FOSTER J DATE OF ORDER: 6 NOVEMBER 2013 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The name of the first respondent be changed from "Minister for Immigration and Citizenship" to "Minister for Immigration and Border Protection". 2. The appeal be dismissed. 3. The first and second appellants pay the costs of the first respondent of and incidental to the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1180 of 2013 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: SZRSZ First Appellant SZRTA Second Appellant SZRTB Third Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: FOSTER J DATE: 6 NOVEMBER 2013 PLACE: SYDNEY REASONS FOR JUDGMENT 1 By Notice of Appeal filed on 25 June 2013, the appellants appealed from a decision of a judge of the Federal Circuit Court of Australia delivered on 4 June 2013 (SZRSZ v Minister for Immigration and Citizenship [2013] FCCA 524) whereby the Circuit judge dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 30 July 2012. Background and Claims 2 The first appellant is a citizen of India who arrived in Australia on 24 August 2011. He entered Australia on a tourist visa. The first appellant is the husband of the second appellant. They are the parents of the third appellant. The second and third appellants have made no claims independently of the claims made by the first appellant. Accordingly, all appellants were assessed as members of the same family unit, that family unit being the family unit of which the first appellant is the head. The first appellant represented all appellants before the Tribunal, before the Circuit judge and before me. 3 A delegate of the first respondent (the Minister) refused the first appellant's application for a Protection (Class XA) visa on 13 December 2011. 4 The claims made by the first appellant are set out in a Statutory Declaration which accompanied his Application for a Protection (Class XA) visa which was received by the Department of Immigration and Citizenship on 13 September 2011. Later in the process, he supplemented those claims with additional material. 5 The first appellant claimed to be a member of the Bhartiya Janata Party (BJP), having joined the party in November 2007. He said that, in early 2008, he came to the attention of the local leader of the Indian National Congress Party which is the main political rival of the BJP in India. He said that, in May 2008, an associate of that Congress Party leader came to his office and threatened him. He was urged to cease assisting the BJP. At that time, the two political parties were gearing up for a local assembly election to be held on 29 November 2008. He went on to claim that, on 20 May 2008, associates of the local Congress Party leader came to his workplace, threatened him, broke furniture and other equipment and injured him. He later added that his assailants had used hockey sticks and assaulted the office boy. According to the first appellant's claims, since that attack, he and his family were subjected to persistent harassment both in person and by phone. The first appellant claimed that he and his family fled to his parents' home in Azmagrah and that he later relocated to Gurgaon in order to escape this harassment. Subsequently, the first appellant claimed that the threats which I have described did not stop even after he had relocated. The first appellant also claimed that the Congress Party leader also threatened to kidnap his parents. He said his life and personal safety were at risk in India and that the authorities in India were either unwilling or unable to protect him. He claimed that his perceived risk of harm was on account of his political beliefs. The Proceedings in the Tribunal 6 On 4 January 2012, the appellants lodged an application for review of the delegate's decision with the Tribunal. On 9 July 2012, the Tribunal conducted a hearing of the appellants' claims. The first appellant attended the Tribunal hearing and gave evidence in support of his claims. In a decision dated 30 July 2012, the Tribunal affirmed the delegate's decision to refuse to grant protection visas to the appellants. 7 In its Decision Record, the Tribunal noted numerous inconsistencies in the first appellant's evidence. For example, the first appellant claimed that he had joined the BJP in 2007, yet his BJP membership card predated this claim by four years. The Tribunal also found that the fact that the first appellant had organised a house warming party at his new home in Gurgaon was inconsistent with his allegation of ongoing harassment there and inconsistent with his alleged fear for his and his family's safety. In addition, the Tribunal found that the first appellant's reasons for travel and relocation to Azmagrah were more consistent with his wedding plans than with any concerns for his safety. Lastly, the Tribunal was of the view that, if the first appellant genuinely feared for his life, he would have been unlikely to wait two months after receiving a visa to depart India. 8 The Tribunal did not accept the first appellant's claim that an unsuccessful Congress Party candidate would threaten him and his family nearly four years after the relevant election. In making this finding, the Tribunal referred to the type of work that the first appellant had undertaken for the BJP, which consisted of helping people with their problems with respect to water supply and attempting to secure their vote for the BJP. The Tribunal did not accept that this kind of involvement with the BJP would attract death threats so long after the relevant election. 9 On the basis of detailed findings as to credibility (as to which see [74]–[87] of the Tribunal's Decision Record), the Tribunal found the appellant not to be a witness of truth in relation to the events which he claimed had occurred in India, in relation to his reasons for leaving and in relation to his fears about returning. It did not accept that the appellant travelled to Australia to avoid persecution nor did it accept that there is a real chance he will face persecution because of his political beliefs or for any other Convention reason if he returns to India. For the same reasons, the Tribunal was not satisfied that the first appellant satisfied the criterion for complementary protection. In substance, the Tribunal rejected the core claims being made by the first appellant. The Proceedings in the Federal Circuit Court of Australia 10 The appellants lodged an Application for judicial review in the Federal Circuit Court of Australia on 27 August 2012. In support of that Application, the appellants specified the following grounds: 1. The Refugee Review Tribunal ("the Tribunal") found that "the applicant has been untruthful in his evidence about the events in India, his reasons for leaving India and his fears about returning to India", and that "the Tribunal does not accept that the applicant was attacked at his business as claimed in May 2008 because of his support of the BJP nor that he and his family have been subjected to ongoing harassment". The Tribunal fell into jurisdictional error in making these findings. 2. The Tribunal found that "the applicant would be able to relocate away from Delhi or Gurgaon if he returned to India". The Tribunal fell into jurisdictional error in making this finding. 11 In his Reasons for Judgment, the learned Circuit judge summarised the appellants' claims at [1]–[5]. At [7], his Honour commenced his consideration of the grounds of review specified in the appellants' Application for Judicial Review. 12 At [7]–[11], the Circuit judge explained in brief terms why it was that he was of the opinion that the case sought to be made before him was not truly anchored in judicial review principles but rather amounted to nothing more than an attempt to revisit the merits of the appellants' claims which, of course, was not permissible. In those paragraphs, the Circuit judge said: 7. The applicant was given an opportunity to expand upon this ground by filing an amended application but he did not do so. On the face of it the ground is simply an argument with the factual findings of the Tribunal and if the court was to investigate the claim it would be providing the applicant with merits review and not judicial review. Merits review is impermissible under the Migration Act. There is nothing in the ground of application or what was said to me by the applicant today that indicates any jurisdictional error on the part of the Tribunal in making the findings which it did as to the applicant's credibility. Those findings were based upon evidence brought to the Tribunal by the applicant and a decision upon that evidence is a matter for the Tribunal "par excellence". 8. The second ground was the Tribunal found that: "The applicant would be able to relocate away from Delhi or Gurgaon if he returned to India. The Tribunal fell into jurisdictional error in making this finding." 9. Once again the applicant has not assisted the court by providing any indication of what the jurisdictional error was in making that finding. Mr Alderton in his helpful written submissions has made two comments upon it. Firstly, he says that the Tribunal's remarks concerning relocation which are found at [83] [CB 145] are not findings upon relocation per se but are findings made in the context of the Tribunal's view of the credibility of the applicant. In other words the statement by the applicant that he could not relocate from Gurgaon or Delhi was not credible and this added weight to the general finding of lack of credibility on the part of the applicant in relation to his claims of persecution. 10. Given the context in which [83] appears I think that is a reasonable and proper interpretation of what was intended by the Tribunal. But Mr Alderton also deals with the possibility that it is a separate finding upon relocation. In response to that he says that even if it is found that the Tribunal did not properly address the relocation criteria when coming to that conclusion the finding it made was superfluous given the general finding that the applicant had no fear of persecution and it is that fear which is the jurisdictional facts upon which a claim for such a visa is based. I think Mr Alderton was correct in making that submission. 11. In these circumstances there is nothing in the application or from what I heard from the applicant today, when he told me that he had told the truth to the Tribunal and that relocation was impossible, that provides me with any opportunity to provide him with the review he seeks. I dismiss the application and order that the first and second applicants pay the first respondent's costs assessed in the sum of $4,500.00. The Appeal in this Court 13 By Notice of Appeal filed on 25 June 2013, the appellants specified the following grounds of appeal in this Court: 1. Honourable Judge of the Federal Circuit Court erred in law in determining my application not finding that the Tribunal did not consider that I (First named applicant) was not a victim of persecution for my political belief as a member of Bhartiya Janata Party (BJP). 2. The Honourable Judge did not find that there was a lack of procedural fairness in the decision of the Refugee Review Tribunal as the Tribunal failed to consider me as a credible witness. 3. The Honourable Judge error to find that the Tribunal failed to accept that my life will be at risk if I return back to India. 4. The Honourable Judge erred in not finding that the Tribunal refused my application on the ground that I would be able to re-locate away from Delhi or Gurgaon if returned to India which is not potential for me due to my background and social conditions in India. 14 As submitted by the Minister, in substance, the four grounds of appeal relied upon by the appellants in this Court rise no higher than an invitation to the Court to undertake a review of the factual findings and merits of the Tribunal's decision and its assessment of the credibility of the appellants and the veracity of their claims. This cannot be done in a judicial review proceeding, let alone in the present appeal. 15 The only submission which the first appellant made at the hearing before me this morning reinforced the fact that all he was doing was seeking to re-agitate the merits of his claims. His only submission was that his life was at risk if he was required to return to India. 16 In my judgment, the appellants have failed to demonstrate any appellable error on the part of the Circuit judge. 17 For these reasons, I dismiss the appeal 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 Foster. Associate: Dated: 12 November 2013