SZNJG v Minister for Immigration

[2017] FCCA 1945

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZNJG v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1945

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – no breach of procedural fairness or natural justice – the Tribunal made nuanced credibility findings that were open – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 438, 476

Cases cited:

SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235

Applicant: SZNJG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2341 of 2016

Judgment of: Judge Street

Hearing date: 16 August 2017

Date of Last Submission: 16 August 2017

Delivered at: Sydney

Delivered on: 16 August 2017

REPRESENTATION

The applicant appeared in person.

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: HWL Ebsworth

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2341 of 2016

SZNJG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Migration Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 27 July 2016, affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant arrived in Australia on 9 July 2008 on a visa subclass TR-676. The applicant applied for protection on 21 August 2008. That application was refused on 27 October 2008. The applicant was granted various visas in between, and the applicant lodged a second application for protection on 12 March 2014. The delegate refused to grant that application on 11 November 2014.

The Tribunal’s decision

1. The applicant applied for review before the Tribunal on 10 December 2014. By letter dated 17 May 2016, the applicant was invited to attend a hearing on 20 July 2016. The applicant appeared on that date to give evidence and present arguments.

2. The Tribunal identified the applicant’s visa background and set out the relevant law in relation to the second application, in relation to consideration of the same on the grounds of complimentary protection, consistent with SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235.

3. The applicant claimed to fear harm in India due to his involvement with political affairs in India, in particular his involvement with the Communist Party of India and the Students Federation of India, in respect of the student wing of the Communist Party of India. The applicant claimed to have held official positions with the Democratic Youth Federation of India. The applicant asserted that he had been involved in various violent incidents as a consequence of his political activities. 

4. The Tribunal summarised the applicant’s claims and evidence and what occurred at the interview with a delegate in 2008, what occurred before a differently constituted Tribunal on 6 February 2009, the information provided by the applicant in support of the second protection application and the applicant’s statement. 

5. The applicant was found to be a national of India, and his claims were assessed against that country. The Tribunal accepted that the applicant and his family are Catholics, and that the applicant was at some point a member of the Kerala Catholic Youth Movement.  The Tribunal did not accept that the applicant had a political profile as claimed, including the applicant’s claim of being an office bearer of the Democratic Youth Federation of India at either branch or area level, or that he was a district member. 

6. The Tribunal made reference to the applicant’s claims of past harm, and summarised what had occurred at the hearing. The Tribunal did not accept that the applicant’s account provided support for important aspects of his claims, and identified the applicant’s accounts as being confused and the subject of inconsistent evidence. The Tribunal concluded the applicant had not been truthful about his claims. 

7. The Tribunal found the applicant’s account of the claimed attack and destruction of his family house highly problematic. The Tribunal found the applicant’s claims about his whereabouts at various times confusing and ill-explained. As a result of the Tribunal’s concerns about the applicant’s credibility, the Tribunal did not accept that the applicant lived at Bangalore before or after the house fire. 

8. The Tribunal did not accept the applicant was an office bearer of the Communist Party of India (Marxist) that he organised or was involved in political protest activities in his local area, that he was attacked, injured or hospitalised as claimed, that the family home was burnt down resulting in the deaths of his brother or brothers or that he was forced to flee his local area to avoid harm from political opponents.

Consideration of complementary protection criteria

1. The Tribunal did not accept that there was a real risk that the applicant will suffer significant harm if removed from Australia to India due to his past political involvement. The Tribunal was not persuaded that the applicant would resume a high profile role in the Communist Party of India (Marxist) in the event that he renews his membership on return to India.

2. The Tribunal found that the applicant’s evidence wavered during the course of the hearing as to whether he actually faces a real risk of significant harm for reasons of his association with the Communist Party of India (Marxist).

3. The Tribunal acknowledged the claims made by the applicant about the changing fortunes of political parties, and the Tribunal noted that it had to assess the risk of harm for the applicant on the basis of the available country information. The Tribunal made reference to the party currently in power, as well as that that situation may change in the future. The Tribunal found that there were no substantial grounds for believing there is a real risk the applicant will suffer significant harm on return to his home region for reason of his political involvement with the Communist Party of India (Marxist).

4. The Tribunal made reference to the size of the Christian population, and the Tribunal found the risk of the applicant suffering harm appears remote. The Tribunal pointed out the applicant has not demonstrated a religious profile which would suggest he personally would be at risk of harm. The Tribunal noted the applicant’s religious practice appears to be that of an ordinary practitioner. The Tribunal made reference to country information indicating that India’s greatest concentrations of Christians are found in the southern states of the applicant’s home area. 

5. The Tribunal found there were no substantial grounds for believing there is a real risk the applicant will suffer significant harm on return to India because of his religion or religious activities despite the BJP being the ruling party or for any other reason. The Tribunal was not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Migration Act and affirmed the decision under review.

Before this Court

1. On 24 November 2016, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed. 

2. The grounds in the application are as follows:-

   1. Jurisdictional error.

   2. Breach of procedural fairness

   3. Breach of natural justice

3. At the commencement of the hearing, the Court explained to the 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 applicant. The Court explained that in summary, this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair. 

4. The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further hearing. The Court explained that, if not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed. 

5. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from counsel for the first respondent, and then give the applicant an opportunity to put submissions in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court. 

Consideration

The applicant’s submissions from the bar table

1. The applicant submitted from the bar table that he told his story and that what he said occurred, had in fact, occurred. The applicant submitted that the Tribunal had not taken into account what was actually happening now in India. This Court has no power to revisit the merits. This Court cannot make fresh findings of fact in relation to the applicant’s claims. 

2. It is apparent from the Tribunal’s reasons that the Tribunal took into account the country information and the applicant’s submissions concerning the current situation in his home area. The Tribunal made nuanced credibility findings that were open to the Tribunal and in respect of which the Tribunal gave reasons that cannot be said to be irrational, illogical or unreasonable. The adverse credibility findings cannot be said to lack an evident and intelligible justification. 

3. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Tribunal complied with its obligations of procedural fairness in the conduct of the review.  Nothing said by the applicant from the bar table identified any jurisdictional error. 

Grounds 1

1. In relation to the three grounds on the application, the generalised assertion of the jurisdictional error does not make out any relevant legal error. Ground 1 fails to make out any jurisdiction error. 

Grounds 2 and 3

1. The generalised assertion in grounds 2 and 3 of a breach of procedural fairness or a breach of natural justice does not in itself make out any jurisdictional error. On the face of the material before the Court, no breach of procedural fairness or breach of natural justice occurred in the course of the hearing before the Tribunal. Grounds 2 and 3 failed to make out any jurisdictional error.

Section 438 certificate

1. Mr Johnson of counsel for the first respondent, as a model litigant has drawn to the Court’s attention the existence of a certificate issued under s.438 of the Migration Act. Without conceding the matter, the first respondent accepted that it may be that the s.438 certificate was invalid.

2. Notwithstanding the invalidity of the s.438 certificate, the first respondent submitted that the Court had the benefit of the material the subject of the certificate in the present case, and that the Court should find that the Tribunal did not act upon the material the subject of the certificate, and did not have regard to the material the subject of the certificate.

3. On the face of the material the subject of the certificate, it was not relevant to the application for review, and the Court accepts the first respondent’s submission that the Tribunal’s reasons reflect the Tribunal not acting on the material the subject of the certificate.

4. The Court finds the Tribunal did not have regard to the material the subject of the certificate. Further, the information the subject of the certificate was not credible, relevant and significant. The Court accepts in these circumstances, the submission of the first respondent that there is accordingly no practical injustice that has been occasioned to the applicant by reason of the failure to disclose the certificate or the material the subject of the certificate. In these circumstances, no jurisdictional error is made out. 

5. Further, the Court is satisfied that the material the subject of the certificate could not possibly have affected the outcome of the review. In these circumstances if there was any error for discretionary reasons, relief should be refused.

6. For the reasons given, the application is dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 20 September 2017