SZNDJ and Anor v Minister For Immigration and Anor (No.2)

[2016] FCCA 2079

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZNDJ & ANOR v MINISTER FOR IMMIGRATION & ANOR (No.2) [2016] FCCA 2079

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal failed to act in accordance with the relevant legislation – whether the Tribunal had jurisdiction to decide the matter – whether the Tribunal failed to consider an integer of the applicants’ claims – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 424AA, 476

Cases cited:
SZGIZ v Minister for Immigration & Citizenship (2013) 212 FCR 235

First Applicant: SZNDJ

Second Applicant: SZNDK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2814 of 2015

Judgment of: Judge Street

Hearing date: 12 August 2016

Date of Last Submission: 12 August 2016

Delivered at: Sydney

Delivered on: 12 August 2016

REPRESENTATION

The Applicants appeared in person.

Counsel for the First Respondent: Mr T Reilly

Solicitors for the First Respondent: DLA Piper Australia

ORDERS

1. Leave for the Applicants to file in court the document appearing to be an amended application which has been initialled by myself and dated today and the Court dispenses with the need to file the document electronically.

2. The amended application is dismissed.

3. The Applicants pay the costs of the First Respondent fixed in the amount of $8,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2814 of 2015

SZNDJ

First Applicant

SZNDK

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Tribunal made on 23 September 2015, affirming a decision of the delegate not to grant the applicants Protection (Class XA) visas. 

2. The applicants were found to be citizens of India. The applicants arrived in Australia on 8 May 2008 on subclass 676 Tourist visas. On 28 May 2008, the applicants made an application for protection (“the First Application”). The first applicant was identified as the primary applicant and the second applicant was listed as a dependent. 

3. On 1 September 2008 the First Application was refused. On 18 December 2008, the Refugee Review Tribunal (“the RRT”) affirmed the decision not to grant the applicants protection visas. On 12 January 2009, the applicants sought judicial review of the RRT’s decision. On 15 May 2009, the Federal Magistrates Court of Australia remitted the matter to the RRT for reconsideration. On 30 September 2009, a differently constituted RRT affirmed the decision of the delegate. Between 23 October 2010 and 4 November 2011, the Federal Magistrates Court, the Full Court of Federal Court and the High Court upheld the decision not to grant the applicants protection visas.

4. On 27 September 2012, the applicants lodged a second application for protection (“the Second Application”) on the grounds of complementary protection in accordance with the decision in SZGIZ v Minister for Immigration & Citizenship (2013) 212 FCR 235.

5. The applicants claim to fear harm by reason of their inter-caste marriage and the first applicant’s support for the Congress Party in India. The delegate dismissed the applicants’ Second Application on 18 July 2014.

6. The applicants applied for review of the delegate’s decision by the Tribunal on 21 October 2014. By letter dated 22 May 2015, the applicants were invited to attend a Tribunal hearing on 16 July 2015, which was subsequently rescheduled to 21 September 2015. The first applicant appeared on that date, together with his migration representative, to give evidence and present arguments on behalf of the applicants. 

7. Relevantly, the Tribunal accepted that there was a real risk that the applicants would suffer significant harm in their home region in India due to their inter-caste marriage. Accordingly, the Tribunal proceeded to consider whether the applicants could relocate within India pursuant to s.36(2B)(a) of the Act.

8. The Tribunal was not satisfied that there was a real chance of the applicants suffering significant harm should they relocate within India. The Tribunal found that it was reasonable for the applicants to safely relocate within India. The Tribunal took into account the applicants’ claims relating to their health in determining that it would not be unreasonable for the applicants to relocate within India. In the circumstances, the Tribunal was not satisfied that the applicants would face a real risk of suffering significant harm in India. The Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to India, there was a real risk that they would suffer significant harm. The Tribunal was not satisfied that the applicants met the complementary protection criterion under s.36(2)(aa) of the Act and affirmed the decision under review.

9. The grounds of the amended application are as follows:

   1. The second respondent failed to comply with the mandatory requirement under section 424A(read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.

   Particular:

   The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act.

   2. The Tribunal had no jurisdiction to make the said decision because its reasonable satisfaction was no arrived in accordance with the provisions of the Migration Act

   3. The Tribunal’s decision was unjust and made without taking into account the full gravity of applicants circumstances and consequences of the claim.

   4. The Tribunal has failed to investigate the claim, specially the grounds of persecution in India. Therefore the Tribunal decision dated on 23 September 2015 was a judicial error.

   (Errors in original).

10. On 26 November 2015, a Registrar of the Court made orders providing the applicants with an opportunity to file an amended application, affidavit evidence and submissions.

11. On 26 February 2016, this Court made orders providing the applicants with an opportunity to file an amended application, affidavit evidence and submissions.

12. At the commencement of the hearing, the Court explained to the first applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicants. The Court explained that this meant, in summary, that the Court was deciding whether the Tribunal’s decision was lawful and whether the Tribunal’s decision was fair. The first applicant confirmed that he understood what had been said by the Court. 

13. The Court explained that it would have identified the evidence, then hear submissions from the first applicant, then hear submissions from the counsel for the first respondent, and then hear submissions from the first applicant. The first applicant confirmed that he understood what had been said. 

14. From the bar table, the first applicant maintained that he could not go back to India and maintained a disagreement with the decision of the Tribunal. Nothing said by the applicant from the bar table identified any jurisdictional error. 

15. In the course of the first applicant’s submissions, the Court repeated its explanation to the first applicant as to the nature of the Court’s power.  The Court also explained that it did not have power to review the merits or make fresh findings of fact in relation to the applicants’ claims. The first applicant referred to the current state of affairs in India. However, the current state of affairs in India is not a matter that can establish any jurisdictional error in relation to the decision of the Tribunal.

16. In relation to ground 1 of the amended application, I accept the submissions of the first respondent that there is no information identified enlivening any obligation under s.424A of the Act. Accordingly, ground 1 fails to identify any jurisdictional error.

17. In relation to ground 2, the Tribunal correctly identified the relevant law and made findings in relation to the applicants’ claims and evidence. The adverse findings by the Tribunal were open on the material before it and cannot be said to lack an evident and intelligible justification. I am satisfied that the applicants had a real and genuine hearing. On the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review.

18. There is no material before the Court to establish any want of procedural fairness by the Tribunal. The unparticularised assertion that the Tribunal’s decision was not arrived at in accordance with the provisions of the Act does not identify any jurisdictional error. Ground 2 fails to make out any jurisdictional error.

19. In relation to ground 3, for the reasons earlier given, the Tribunal’s decision was arrived at in accordance with the statutory provisions.  The bare assertion that the Tribunal’s decision was unjust is, in substance, an impermissible invitation to this Court to review the merits of the decision. This Court has no power to review the merits of the applicants’ claims. Further, it is apparent that the Tribunal took into account the applicants’ claims as it accepted that there was a real risk that the applicants would suffer significant harm in their home region in India due to their inter-caste marriage.  Ground 3 fails to make out any jurisdictional error.

20. In relation to ground 4, the assertion that the Tribunal failed to investigate the applicants’ claims is without substance. It is apparent from the Tribunal’s reasons that it took into consideration the applicants’ claims and evidence. There was no inquiry identified by the applicants in respect of easily ascertainable information that the Tribunal was required to pursue. The adverse findings by the Tribunal were, for the reasons already given, open to the Tribunal on the material before it.  Ground 4 fails to make out any jurisdictional error. 

21. The amended application is dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 1 September 2016