SZRAG v Minister for Immigration

[2015] FCCA 3086

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRAG v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3086

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migrants and Refugees Division) – Protection (Class XA) visa – whether the Tribunal failed to consider an integer of the applicants claim – whether the Tribunal’s findings lacked an evident and intelligible justification – no jurisdictional error – application dismissed.

Legislation:

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

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

Applicant: SZRAG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1594 of 2015

Judgment of: Judge Street

Hearing date: 18 November 2015

Date of Last Submission: 18 November 2015

Delivered at: Sydney

Delivered on: 18 November 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms N Blake
Clayton Utz

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1594 of 2015

SZRAG

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 of a decision of the Tribunal on 22 May 2015 affirming decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of India. The applicant arrived in Australia in November 2008 on a subclass 456 visa which ceased in February 2009. The applicant applied for a protection visa in March of 2011. On 10 June 2011 the Minister refused to grant the applicant a protection visa.

2. The applicant sought a review of the delegate’s decision and a Tribunal differently constituted affirmed the delegate’s decision on 9 December 2011.  After unsuccessfully seeking judicial review and ministerial intervention, the applicant applied for a protection visa for a second time on 12 December 2013 on the grounds of complementary protection consistent with the decision in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235.

3. The applicant attended an interview before a delegate as a second interview on 12 May 2014 and the delegate found the applicant’s evidence not to be credible and did not accept his claims and refused the application on 14 May 2014.  By letter dated 5 March 2015 the applicant was invited to attend a hearing on 14 May 2015.  The applicant appeared before the Tribunal on 14 May 2015 to give evidence and present arguments and was assisted by an interpreter.

4. Following the hearing with the Tribunal, sent the applicant a letter dated 16 April 2015 providing particulars of information that would be part of the reason for affirming the decision under review. I am satisfied that the letter dated 16 April 2015 did provide clear particulars of information that the Tribunal considered would be the reason or part of the decision to affirm a decision under review and that the Tribunal in that regard complied with the requirements of s.424AA(1)(b). The applicant did not respond to that letter.

5. The grounds of the application are as follows:

   1. The Second Respondent committed jurisdictional error by failing to address the applicant's claim in the way it was made;

   a. The applicant stated in his protection visa that he was an active member of DSS in India. He was later given managerial position and travelled to many countries with the Guru to collect the donation.

   b. The applicant accused of converting other Sikhs to his organization and received death threats from Sikh Youth Federation

   c. The Tribunal failed to consider whether or not the applicant in India was at risk of harm from Sikh followers and not able to access effective protection.

   2. In second respondent finding that it was not satisfied that the applicant was a person to whom Australia owed protection obligations, the Tribunal engaged in a process of reasoning that was irrational, illogical and not based upon fact supported by the applicant.

6. On 23 July 2015 a Registrar of the Court made orders providing an opportunity for the applicant to file an amended application, affidavit evidence and submissions.  No such documents were filed. 

7. Relevantly, the Tribunal found the applicant had fabricated and concocted his evidence to achieve an immigration outcome.  In relation to ground 1, it is clear from the Tribunal’s reasons in paras.9 and 32 that the Tribunal understood the nature of the applicant’s claims.

8. It is also clear that the Tribunal considered whether there were substantial grounds for believing as a necessary and foreseeable consequence of the applicant being removed from Australia to India there was a real risk that he would be subjected to significant harm as identified in paras.32, 33, 34 and 35.  It is clear from the Tribunal’s reasons that the Tribunal rejected the applicant’s claims and evidence and that those findings were open.  Ground 1 fails to disclose any jurisdictional error.

9. Ground 2 is, in essence, an impermissible challenge to the conclusion by the Tribunal that the applicant was not a person in respect of whom Australia had a protection obligation and that the criteria under s.36(2)(aa) had not been made out. The Tribunal identified reasons for the adverse findings that cannot be said to lack an evident and intelligible justification and were clearly open on the material before the Tribunal. Ground 2 fails to make out any jurisdictional error. The application is dismissed.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  24 November 2015