SZOIG v Minister for Immigration
[2016] FCCA 176
•3 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZOIG & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 176 |
| Catchwords: PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13 |
| Cases Cited: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 Abebe v Commonwealth of Australia (1999) 197 CLR 510 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 |
| First Applicant: | SZOIG |
| Second Applicant: | SZOIH |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2217 of 2015 |
| Judgment of: | Judge Emmett |
| Hearing date: | 3 February 2016 |
| Date of Last Submission: | 3 February 2016 |
| Delivered at: | Sydney |
| Delivered on: | 3 February 2016 |
REPRESENTATION
| The Applicants appeared in person with the assistance of a Punjabi interpreter. |
| Solicitor for the Respondents: | Ms Michelle Stone (DLA Piper) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2217 of 2015
| SZOIG |
First Applicant
| SZOIH |
Second Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
On 11 August 2015, the applicants filed an application seeking judicial review of a decision of the Administrative Appeals Tribunal dated 16 July 2015 and handed down on 17 July 2015 (“the AAT”).
The first named applicant is a citizen of India, who claims to fear harm arising from his Sikh religion, his Labuna ethnicity and his political opinion in support of the Lok Dal party (“the Applicant”). The second named applicant is the wife of the Applicant and was included in the Applicant’s application for a protection visa. Her claims are wholly dependent on those of the Applicant.
On 17 September 2015, the Applicant attended a directions hearing before a Registrar of this Court. The Applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit by 24 September 2015, as well as submissions in support, by 25 September 2015.
At the request of the first respondent, the matter was listed for hearing on 28 October 2015 pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), a copy of which was also given to the Applicant.
On 26 October 2015, at the request of the Applicant and with the consent of the first respondent, the show cause hearing was adjourned to today due to the medical condition of the Applicant.
Rule 44.12 of the Rules provides as follows:
“(1) At a hearing of an application for an order to show cause, the Court may:
(a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or
(b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or
(c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.
(2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”
Relevantly, r.44.13 of the Rules provides as follows:
“(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”
The first respondent, in written submissions, accurately summarised the background of the Applicant’s claims and the AAT’s decision, as follows:
“Background
2. The first named applicant (applicant) is a male citizen of India who arrived in Australia on 4 July 2009 as the holder of a visitor visa.[1] The second named applicant is his wife.
[1] CB 13
3. The applicants first applied for a Protection visa on 17 August 2009 (first application).[2] The applicant set out his claims in his application[3] as well as in a statutory declaration dated 17 August 2009.[4] This application was unsuccessful.
[2] CB 1 - 32
[3] CB 17 - 20
[4] CB 33 - 35
4. The applicants applied for a second Protection (Class XA) visa on 4 September 2013.[5] His claims were set out in his visa application[6] and a statement dated 30 June 2014.[7] The application was refused by a delegate of first respondent on 18 July 2014.[8]
[5] CB 69 - 110
[6] CB 86 - 89
[7] CB 121
[8] CB 127
5. The applicant applied to the AAT for review of the delegate's decision on 12 August 2014.[9]
[9] CB 140
6. The applicant gave oral evidence before the AAT on 8 July 2015.[10] The AAT affirmed the decision of the delegate on 16 July 2015.[11]
[10] CB 166
[11] CB 176
The applicant's claims
7. The applicant claimed to fear harm in India for reason of his Sikh religion, his Labuna ethnicity and his political opinion as a supporter of the Lok Dal party. The second named applicant relied upon the claims advanced by the applicant.
The decision of the Tribunal
8. The AAT found that, applying SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71 (SZGIZ), it was required to confine its decision in respect of the applicant to consideration against the complementary protection criterion (see [11]).
9. The AAT did not accept the applicant's evidence for reason that it was contrary to available country information.
i. The AAT accepted it was plausible that the applicant was subject to some harm prior to the cessation of the secessionist insurgency in 1993. However the AAT found that country information indicated that circumstances in the Punjab had changed substantially such that the applicants would not be at real risk of significant harm (see [16]).
ii. Having regard to country information, the AAT was not satisfied that the applicants have a real risk of significant harm for reason of their Labuna ethnicity (see [20]). Further, on the basis of country information, the AAT was not satisfied that the applicants have a real risk of significant harm in Haryana for reason of their Sikh religion or Lubana ethnicity (see [29]).
iii. The AAT found that the applicant's recollection of political claims was vague (see [31]). In any event the AAT concluded that based on country information, it was not satisfied that the applicant had any problems practising his religion, being the source of his alleged political activities (see [32]).
iv. Having regard to country information and the applicant's evidence about his political activities, the AAT was not satisfied that the applicant was anything more than a mere supporter of the Lok Dal party in his home village of Haryana (see [39]). Based on country information the AAT did not accept that the applicant did anything for Lok Dal that would cause him to be of any ongoing adverse interest (see [39]). Accordingly the AAT did not accept that the applicant was of ongoing adverse interest for any political reason and rejected any related claims including that his truck was damaged (see [41]).
10. The AAT also found that the applicant had a lack of knowledge about politics in Haryana and that this was indicative of a lack of real interest in politics such that he was not at a real risk of harm for his actual or imputed political opinion (see [43] - [44]).
11. The AAT considered the applicant's health condition and that of his wife.
i. The AAT found that there was no material evidence to suggest a deliberate withholding of medical treatment in India (see [49]). The AAT found that any lack of sophistication in health services was not intentional discrimination (see [49]). The AAT was satisfied that the applicants would be able to access medical assistance which is usually made available to persons in India (See [50]).
ii. In relation to conduct of the hearing, the AAT indicated to the applicant that the hearing could be re-scheduled if the applicant felt unwell however this was refused by the applicant (see [14]).
12. The AAT considered whether the applicants could safely and reasonably relocate within India (from [55]).
i. The AAT did not accept that the applicant was of ongoing adverse interest to anyone in India or that the applicants or their children were threatened when the children returned to their home village in 2014 (see [56]). The AAT was satisfied that the applicants would be able to access a relocation place even in Haryana (see [56]). The AAT found that the applicants could safely relocate in India and not have a real risk of significant harm (see [56]). Having regard to country information the AAT was not satisfied that any such relocation would cause the applicants to experience a lack of food, clean water, shelter or health care (see [58]). Further the AAT was not satisfied that language, education or employment would be a barrier for relocation of the applicants (see [61] - [63]). The AAT was not satisfied that it would be unreasonable for the applicants to relocate within India should they not wish to return to their home village (see [63]).”
(Emphasis in original.)
The Applicant was unrepresented before the Court this morning, although had the assistance of a Punjabi interpreter.
The Applicant confirmed that he had not filed any further documents, either in accordance with the directions of the Registrar of this Court or otherwise.
The Applicant confirmed that he relied on the grounds stated in his application for judicial review filed on 11 August 2015. Those grounds 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 applicants clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicants understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicants 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 misconstrued the risk and fear of significant harm as set out in s.36(2A) of the Migration Act 1958.
The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicants upon their return to India.”
Prior to inviting the Applicant to make submissions on those grounds, I explained to the Applicant that the role of this Court was very different to that of the AAT. I explained to the Applicant that it was not for this Court to reconsider his claims and make different factual findings or reach different conclusions. I explained that the only issue before this Court was whether or not the decision of the AAT was made according to law or was affected by jurisdictional error. I explained to the Applicant that a disagreement with the findings and conclusions of the AAT rarely, by itself, establishes such a mistake.
The grounds of the application were interpreted for the Applicant and he was invited to make submissions in support of those grounds. The Applicant had nothing to say in support of either ground of the application.
Ground 1
Ground 1 of the Applicant’s application for judicial review asserts that the AAT failed to give information to the Applicant for comment that formed part of its reason for affirming the decision under review in accordance with ss.424A or 424AA of the Migration Act 1958 (Cth) (“the Act”).
I asked the Applicant what was the information that should have been given to him by the AAT for comment. However, the Applicant was unable to identify any information at all. He informed the Court that the grounds had been written for him by a stranger that he met in the library on one occasion.
A fair reading of the AAT’s decision record reveals that the information relied upon by the AAT in affirming the decision under review was country information which was not specifically about the Applicant, but about a class of persons of which the Applicant claimed to be a member. Such information is specifically excluded from the operation of s.424A(1) of the Act by s.424A(3)(a) of the Act.
Moreover, it is well settled that the country information to which the AAT has regard and the weight it gives to that information is a matter for the AAT (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).
The AAT explored the Applicant’s claims with him at the hearing and put to him concerns it had about his claims and noted his responses.
The AAT also considered whether the Applicant met the complementary protection criterion in s.36(2)(aa) of the Act. After considering in some detail the criterion in s.36(2)(aa) of the Act, the AAT was not satisfied that the Applicant was a person in respect of whom Australia had protection obligations under s.36(2)(aa) of the Act. The relevant passages of the AAT’s decision record are as follows:
“51. Based on those of the applicant’s claims that I have accepted, and the country information in the sources cited herein, I do not accept the applicant has a real risk of suffering the death penalty in India.
52. Based on the accepted facts and the country information in the sources cited herein, the Tribunal is also not satisfied the applicant has a real risk of suffering degrading treatment or punishment arising from an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, should he return to India. Next, based on the country information and accepted facts, I am not satisfied the applicant has a real risk of suffering harm that is intentionally inflicted on him (cruel or inhuman treatment or punishment); or that he has a real risk of suffering relevant harm that is intentionally inflicted on him (torture). Finally, none of the country information in the sources cited herein, have satisfied me the applicant has a real risk of suffering arbitrary deprivation of life in India (for any reason not already discussed above).
53. Even considering those of the applicant’s claims that I accept cumulatively, I am not satisfied he has a real risk of significant harm in India. Neither is there any issue, squarely raised by the evidence though not articulated, that has satisfied the tribunal the applicant has a real risk of significant harm in India, for any other reason.
54. Accordingly, I am not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal, there is a real risk that he will suffer significant harm if returned to India.”
It is well established that the AAT’s disbelief of an applicant’s evidence arising from inconsistencies therein is not “information” for the purposes of s.424A of the Act. Neither does information include the AAT’s subjective appraisals, thought processes and determinations, defects, gaps or lack of detail in an applicant’s evidence (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 at [14] per Finn and Stone JJ).
The AAT’s findings would appear to be open to it on the evidence and material before it, and for the reasons it gave, including its adverse credibility findings in respect of the Applicant’s claim that he had been engaged in religious protests in India and suffered harm for that reason. Credibility findings are a matter par excellence for the AAT (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
Accordingly, Ground 1 does not raise an arguable case for the relief claimed.
Ground 2
Ground 2 of the Applicant’s application for judicial review asserts that the AAT construed, erroneously and narrowly, the existence of risk to the Applicant’s life and his fear of significant harm upon his return to India, thereby misconstruing the risk and fear of significant harm test set out in s.36(2A) of the Act.
Section 36(2A) of the Act is as follows:
“(2A) A non-citizen will suffer significant harm if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.”
In the passages of the AAT’s decision record quoted above, it is clear that the AAT dealt with each of those considerations in reaching its conclusion.
In any event, it is well established that the AAT is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the AAT have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).
In the circumstances, the Applicant’s complaint in Ground 2 does not identify any jurisdictional error on the part of the AAT and appears more to be a disagreement with the findings and conclusions of the AAT. The Applicant’s complaints, such as they are, invite merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:
“It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”
Accordingly, Ground 2 does not raise an arguable case for the relief claimed.
Conclusion
While I make no final decision as to whether or not the AAT’s decision is affected by jurisdictional error, the Applicant has not identified any error on the part of the AAT that is capable of establishing jurisdictional error and none is apparent on the face of the decision record. The AAT referred to the relevant law in affirming the decision under review.
In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, in the exercise of the Court’s discretion under r.44.12(1) of the Rules and on the basis that the application does not raise an arguable case, the proceeding before this Court, commenced by way of application filed on 11 August 2015, should be dismissed pursuant to r.44.12(1)(a) of the Rules with costs.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Date: 11 February 2016
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