SZNQS v Minister for Immigration

[2015] FCCA 3124

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZNQS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3124

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migrants and Refugees Division) – Protection (Class XA) visa – procedural fairness – whether the Tribunal failed to put adverse information to the applicant – whether the Tribunal failed to consider the applicant’s claims and evidence – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 424A, 424AA, 476

SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 35

Applicant: SZNQS

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2353 of 2015

Judgment of: Judge Street

Hearing date: 23 November 2015

Date of Last Submission: 23 November 2015

Delivered at: Sydney

Delivered on: 23 November 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents: Mr A. Keevers
Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2353 of 2015

SZNQS

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect to a decision of the Tribunal made on 31 July 2015, affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of India.  The applicant arrived in Australia on 27 October 2008, on a visa subclass 676 visa.  On 6 November 2008, the applicant made an application for protection which was refused on 5 January 2009.  A review was sought by the applicant on 16 January 2009, and on 29 April 2009 the Tribunal affirmed the decision of the delegate.  The applicant then sought judicial review in the Federal Court of Australia on 3 June 2009, which was dismissed on 28 October 2009.  The applicant sought a review in the Full Court of the Federal Court of Australia on 26 November 2009, which was dismissed on 18 February 2010.  The applicant commenced proceedings in the High Court of Australia on 8 March 2010, which I assume was an application for special leave, which was dismissed on 18 June 2010. 

3. The applicant unsuccessfully sought ministerial intervention, and on 10 October 2010, lodged a second application for protection, consistent with the decision of the Full Federal Court in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 35 in respect of complementary protection.

4. On 17 July 2014, the delegate rejected the second application for protection on the grounds of complementary protection and made adverse findings in relation to the applicant’s credibility.  The applicant claimed to fear harm by reason of his political opinion, and both his and his father’s involvement in the BJP.  The applicant also claimed to fear harm on the basis he would targeted by Muslim extremists, given that he was a Hindu. 

5. The Tribunal found the applicant was not a witness of truth.  The Tribunal found that the applicant had embellished, if not fabricated, part of his claims.  The Tribunal rejected the applicant’s claims as false, and found the alleged involvement by the applicant and his father in the BJP was false.  The Tribunal was not satisfied that there was a real risk the applicant would suffer significant harm by reason of any of the claims advanced.  The Tribunal found that there was no real risk the applicant will suffer significant harm if returned to India. 

6. The Tribunal accordingly found the applicant was not a person in respect of whom Australia had protection obligations, and that the criteria under s.36(2)(aa) of the Act had not been made out.

7. On 8 October 2015, a Registrar of the Court fixed the matter for hearing and made orders providing an opportunity for the filing of an amended application, affidavit evidence and submissions.  No such documents were filed.  The application identifies the following grounds:

   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's decision was unjust and made without taking in to account the full gravity of Applicant's circumstances and consequences of claims. The Tribunal did not consider the applicant who had been under immense and intimidating pressure from opposition.

8. In relation to ground 1, I accept the first respondent’s submission that there was no information enlivening any obligation under s.424A. I accept the first respondent’s submission that the country information fell within the exception under 424A. Accordingly, there is no basis for any allegation of breach of s.424A, and ground 1 fails to make out any jurisdictional error.

9. In relation to ground 2, it is clear the applicant was invited, by letter dated 25 May 2015, to appear at a hearing on 28 July 2015, to give evidence and present arguments.  The applicant appeared on that date, to give evidence and present arguments, and was assisted by an interpreter represented by his registered migration agent. 

10. The Tribunal’s reasons reveal a comprehensive review, and there is no basis upon which it could be said the review was unjust or that there was any non-compliance with the statutory regime.  The proposition that the Tribunal did not address the applicant’s claims and circumstances is without substance.  It was a matter for the Tribunal whether it accepted the applicant’s claims in relation to his involvement with the BJP, and ground 2 appears to be nothing more than an impermissible challenge to the merits of the matter, which it is for the Tribunal to determine.  Ground 2 fails to make out any jurisdictional error. 

11. From the bar table, the applicant indicated that he could not accurately remember dates.  It is clear from paras.10 and 11 that the Tribunal took into account the nature of the applicant’s responses in determining whether or not it was satisfied that the applicant was given a real opportunity to put his evidence and submissions.  Nothing said by the applicant from the bar table identified any basis upon which it could be said there was any jurisdictional error.  The applicant maintained that there was an election that was taking place, and therefore he could not return. 

12. This Court does not have jurisdiction to make findings of fact in relation to the applicant’s claimed fears of persecution, or claimed fears or suffering significant harm.  The applicant’s reference to the current election that is taking place is not a matter that gives rise to any arguable ground of jurisdictional error by the Tribunal. 

13. The application is dismissed. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  24 November 2015