SZRGI v Minister for Immigration

[2013] FCCA 837

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRGI v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 837

Catchwords:

MIGRATION – Review of decision of Refugee Review Tribunal – where grounds of application not particularised – where Tribunal found applicant’s evidence inconsistent – where applicant given opportunity to explain inconsistencies – whether Tribunal came to adverse implausible conclusions not open on the evidence – whether Tribunal’s “reasonable satisfaction” not reached – merits review – where applicant sought to remain in Australia to pay off debts – where Tribunal both accepted and did not accept that the applicant owed debts – whether Tribunal’s decision illogical or irrational – whether Tribunal fell into jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa)

Ministerfor Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Applicant: SZRGI

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2425 of 2012

Judgment of: Judge Raphael

Hearing date: 11 July 2013

Date of Last Submission: 11 July 2013

Delivered at: Sydney

Delivered on: 11 July 2013

REPRESENTATION

For the Applicant: In person

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. Application dismissed.

2. Applicant to pay the respondents’ costs assessed in the sum of $4,600.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2425 of 2012

SZRGI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of India who arrived in Australia on 28 January 2010 and applied to the Department of Immigration for a Protection (class XA) Visa on 22 November 2010.  A delegate of the Minister refused to grant the visa on 27 June 2011. On 25 July 2011 the applicant applied to the Tribunal for a review of the delegate’s decision.  He was given a review but when he challenged it in this court he was successful and the matter was remitted to the Tribunal to be considered in accordance with law.  A differently constituted Tribunal held a hearing which the applicant attended.  On 25 September 2012 that second Tribunal determined to affirm the decision not to grant the applicant a protection visa. 

2. The grounds upon which the applicant claimed to be a person to whom Australia owed protection obligations arose out of his claimed connection with the Congress Party for whom he did considerable work in his local community.  In doing this work, he became known to the opposing Akali Dal party (SAD).  Whilst this was happening, the applicant became involved with a moneylender.  It appears that the applicant’s brother was at the time living in Australia.  He was involved in a serious motor vehicle accident.  The applicant came to Australia to visit his brother and to help him.  It was for this reason that the applicant got involved with the moneylenders.  At first the applicant said he was involved with several moneylenders.  And, as is clear from the Tribunal decision, he later changed his position and told the Tribunal that it was only one particular moneylender who, the applicant said, was also associated with the SAD.  The applicant had originally said that he was beaten up by this moneylender because he could not pay him back.  But on the questioning from the Tribunal, this incident was somewhat modified.

3. The Tribunal’s decision record is lengthy, possibly because the Tribunal wished to avoid any suggestion that it had not covered all matters raised by the applicant. It includes details of the applicant’s original statements, and details of the interview with the delegate as well as the required details of the hearing before the Tribunal.  The Tribunal pointed out to the applicant numerous inconsistencies between his evidence given at earlier times and the evidence given before the Tribunal.

4. Significantly, at an earlier stage the applicant had claimed to be a businessman of some sort, but later said that he was involved in some hen-raising activity and just bought and sold hens.  The Tribunal also noted that during the course of the hearing, the applicant advised it that he only wished to remain in Australia until he had repaid his loan which he told the Tribunal would be by the end of 2012. 

5. The Tribunal opined:

   “Because of the significant inconsistencies in the applicant’s evidence the Tribunal does not accept that the applicant had a political profile in India or that he was threatened by SAD members because he owed money to a moneylender who was with SAD.  The Tribunal does not accept that the applicant was pushed or threatened or attacked mercilessly or mistreated because of this claimed involvement with the Congress Party.  The Tribunal does not accept that the applicant has borrowed money or owes money to a member of the SAD.  The Tribunal is satisfied that the applicant has not been politically active in India and will not be politically active in the reasonably foreseeable future if he returns to India.  The Tribunal is not satisfied that the applicant is a member of a particular social group, owing money to a member of SAD. 

   The applicant has given evidence that he intends to return to India in January 2013 and he will have paid his debts by then and it will be safe for him to return.  The Tribunal is satisfied that the applicant has remained in Australia to repay a debt and he will have repaid off that debt soon.” [[169-170] CB 105]

6. During the course of the Tribunal hearing, the applicant requested some further time to provide additional evidence.  This was given to him by the Tribunal [[133] CB 99].  Notwithstanding this concession by the Tribunal, no further information was provided. 

7. At [[184-186] CB 107] the Tribunal considered the criteria for the grant of a protection visa on the basis of complementary protection under s.36(2)(a) or (aa) of the Migration Act 1958 (Cth). The Tribunal concluded that the applicant would not suffer significant harm should he return to India.

8. On 24 October 2012 the applicant filed an application with this Court seeking review of the Tribunal’s decision.  The grounds of application are fourfold and appear to be in a form that indicates they were provided to the applicant by a “friend”.  The first ground of application is:

   “The Refugee Review Tribunal denied the applicant procedural fairness by reaching adverse conclusions that the applicant claims were implausible, being conclusions that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.”

9. There are no particulars of this ground, and it is therefore not clear which of the adverse conclusions drawn by the Tribunal were implausible and which were not obviously open on the known material.  A reading of the decision record by the court would indicate that the evidence upon which the Tribunal came to its conclusions was provided by the applicant himself.  The inconsistencies which the Tribunal found were pointed out to the applicant and he had an opportunity to explain them and to provide further information.  This ground cannot be sustained.

10. The second ground is:

    “The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived [at] in accordance with the provisions of the Migration Act.”

    Again, there are no particulars, and it is not for the court to guess what the applicant means by this ground.  In those circumstances it too cannot be sustained.

11. The third ground is:

    “The Tribunal’s decision was unjust and was made without taking into account the full gravity of the applicant’s circumstances and the consequence of the claim.”

    In my view this is a plea for merits review of the tribunal’s decision.  Such a review is impermissible.

12. The final ground is:

    “The applicants [sic] satisfy the Convention definition as detailed in page 2 and 3 of the Tribunal decision.  The Tribunal has not considered this aspect and therefore committed factual and legal error.”

    This again is an assertion that begs review of the facts.  This court is not empowered to take such a course.  Its remit only goes to the finding of jurisdictional error on the part of the Tribunal in the manner in which a Tribunal reaches its decision.  This ground must fail.

13. The applicant appeared before me today.  He told me that he had asked the Tribunal for more time.  To the extent that that meant more time to provide additional information it is correct, and the Tribunal gave him more time.  It became clearer when the applicant spoke further that what he was referring to was time to remain in Australia until he had repaid the debt so he could return to India in safety.  The Tribunal explained to the applicant that this was not part of its duties.  The date by which the applicant had indicated that he would return to India has long passed and yet he is still here.  Today the applicant said that he would leave by January 2014.  These statements from the applicant would appear to me to indicate that he could not possibly have a well-founded fear of persecution for a Convention reason should he return to India in the reasonably foreseeable future and he could not possibly support a claim for a protection visa on the usual Convention grounds.

14. The Tribunal came to the view that it could not accept the applicant’s claims that he owed money to a moneylender at very high interest or was threatened or physically attacked because he had not repaid the money.  It is fair to say there is some incongruity in the Tribunal’s decision relating to complementary protection because it seems to both accept the applicant’s story that he became involved with moneylenders and at the same time not accept it, although it could be said that [[184] CB 107] can be read as relating only to the threats of physical violence from the moneylender.  To the extent that these paragraphs could be qualified by the adjective “illogical”, for the illogicality to constitute jurisdictional error it would have to jump the very high hurdle set by the High Court in Ministerfor Immigration and Citizenship v SZMDS (2010) 240 CLR 611, where at [130] Crennan and Bell JJ said:

    “In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. […] Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.”

15. In this particular case the applicant had first given evidence that he was severely beaten by the moneylender, but later qualified that, changing his evidence at the interview with the delegate and again in his evidence at the Tribunal [[162-164] CB 103-104].  Based upon these inconsistencies it does not seem to the court that it was unreasonable for the Tribunal to come to the major and substantial conclusion, that the applicant would not suffer significant harm should he return into the arms of the moneylender.  In these circumstances the court is unable to provide the applicant with the review he seeks.  The application is dismissed.  The applicant should pay the respondent’s costs which the court assesses in the sum of $4,600.00.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:  16 July 2013