SZRRH v Minister for Immigration

[2013] FMCA 249

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRRH & ANOR v MINISTER FOR IMMIGRATION & ANOR [2013] FMCA 249

MIGRATION – Review of Refugee Review Tribunal decision – whether Tribunal breached requirements of procedural fairness – whether Tribunal required to provide applicant with early warning of its views for comment – whether Tribunal considered irrelevant material – whether Tribunal failed to take into account relevant information – whether Tribunal required to make inquiries – whether Tribunal feel into jurisdictional error.

Migration Act 1958 (Cth), ss.36(1), (2)(aa), 422B, 425

SZIUD v Minister for Immigration & Anor [2006] FCA 1555
SZAFJ v Minister for Immigration & Anor [2004] FCA 291
Minister for Immigration & Anor v Le [2007] FCA 1318
Prasad v Minister for Immigration & Anor (1985) 66 FCR 155
SZHUH v Minister for Immigration & Anor [2008] FCA 1893
Minister for Immigration & Anor v SZIAI [2009] HCA 39

First Applicant: SZRRH

Second Applicant: SZRRI

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1637 of 2012

Judgment of: Raphael FM

Hearing date: 3 April 2013

Date of Last Submission: 3 April 2013

Delivered at: Sydney

Delivered on: 3 April 2013

REPRESENTATION

For the Applicants: In person

Solicitors for the First Respondent: Minter Ellison

ORDERS

1. Application dismissed.

2. Applicants to pay the First Respondent’s costs assessed in the sum of $5,625.00.  

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1637 of 2012

SZRRH

First Applicant

SZRRI

Second Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicants in this matter are a husband and wife who arrived in Australia as visitors on 14 August 2011 and who applied for protection (Class XA) visas on 27 September 2011.  The applications indicated that the substantive applicant was the husband, the wife completing a form in which she claimed to be a member of his family unit and not making an independent claim for protection.  A delegate of the Minister refused to grant them protection visas on 11 January 2012.  The applicants applied for review of that decision from the Refugee Review Tribunal which arranged for them to attend a hearing by video link from Griffith where they were residing.  On 29 June 2012 the Tribunal determined to affirm the decision under review and a letter enclosing that decision was sent to the applicants on 2 July 2012. 

2. The ground upon which the first applicant claimed to be a person to whom Australia owed protection obligations was based upon the Convention reason of political opinion.  The applicant claimed that he was a member of the Congress Party.  His political allegiance had been decided after he received importuning from both the Congress and the BJP in about 2010.  He determined to assist the Congress Party and said that this was done through the travel business that he owned to aid a Mr T in becoming a local representative in the Congress interest. 

3. The applicant told that his candidate did not win the election, another Mr P won the seat.  Sometime later the applicant said his office and furniture was ransacked by the local BJP thugs and his staff was harassed.  He claimed that the same thing happened again a few weeks later and there was a third attack three or four days after the second.  The applicant claimed that if he returned to India he would be the subject of further attacks from Mr P and his cohort and he feared for his life and that of his wife.

4. During the course of the hearing before the Tribunal the applicant also told that he was suffering from a blood disease which required continual medical treatment and medication.  He told that the cost of this medication in India was very expensive although he also said that he was receiving the medication direct from India and not trying to obtain it through Medicare.  He was concerned that if he returned to India he would not be able to afford this medication.

5. The applicant told the Tribunal that after the attacks had been made upon him he moved away from his home and closed his business.  He seemed to have gone into another business possibly connected with his father-in-law for whom he worked until he left for Australia. 

6. In its findings and reasons commencing at [111] [CB 126] the Tribunal opined that there were many inconsistencies in the applicant’s evidence which led it to conclude that such evidence was not reliable and that he was not a credible witness.  Details of the inconsistencies are set out at [113] [CB 126] and some further concerns that the Tribunal had which led it to its view about the applicant’s credibility were discussed at [115 – 119] [CB 127-128]. 

7. The Tribunal also noted, from the evidence given to it by the applicant, that he had expressed a wish to return to India, and that in both an application to the US authorities to attend a diamond trade fair and in his application for a visitors visa to this country, he had expressed the view that he wished to return to India.  Given those intentions, the Tribunal concluded at [121] [CB 128]:

   “The fact that the main visa applicant was planning to return to India in accordance with the visas he applied for and is contemplating a trip to India, reinforces the Tribunal’s view that the main visa applicant’s evidence about fearing persecution in India is not credible.”

8. The Tribunal also considered the applicant’s claims based upon his illness although it noted that it had no independent evidence of the existence of this condition.  It concluded that the evidence indicated that the applicant was able to obtain medication in India and that his work history indicated he would be a person who could afford to continue to purchase the medication if he returned.  The Tribunal was not satisfied on the material before it that the applicant feared serious harm or persecution for any Convention reason in respect of his claimed medical condition.

9. The Tribunal had set out under the heading “Complementary Protection Criterion” at [16-17] [CB 116] the obligation upon it to consider complementary protection under s.36(2)(aa) of the Migration Act 1958 (Cth)[1].  It concluded in relation to complementary protection that because it found that the applicant was not a credible witness and did not accept the claims which it had summarised at [118] [CB 127] in relation to the political parties and Mr P, it was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to India there is a real risk that he would suffer significant harm in relation to those claims.  The Tribunal came to the same conclusion in regard to any claims arising out of his medical condition. 

   [1] “Act”

10. On 26 July 2012 the applicant filed an application with this court seeking review of the Tribunal’s decision.  There were four grounds of application.  The first was:

    “The Refugee Review Tribunal denied the applicant procedural fairness by reaching adverse conclusions that certain aspects of his 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.”

11. As Ms Given says in her helpful written submissions, this ground adopts the language of procedural fairness obligations that arose under the common law.  But in this particular case those obligations are superseded by those contained in s.422B of the Act which states that Division 4 of Part 7 is an exhaustive statement of the requirements of procedural fairness in relation to matters it deals with.  Provided that the Tribunal complies with the provisions of that division it cannot be said to have breached the obligation to provide the applicant with procedural fairness.  I have no evidence or no submissions made by the applicant that refer directly to any of the subsections of the division or how they may not have been complied with.  It seems to me, from reading the Tribunal’s decision, that it did comply so far as it needed to with those subsections.  That ground of application cannot be sustained.  To the extent that the ground seems to suggest that the Tribunal should give an applicant early warning of its views so that he may respond to them, this has been rejected by the Federal Court; SZIUD v Minister for Immigration & Anor [2006] FCA 1555 at [15] per Spender J; SZAFJ v Minister for Immigration & Anor [2004] FCA 291 at [34] per Tamberlin J.

12. Ms Given in her submissions goes on to consider whether or not ground 1 refers to a breach of s.425 of the Act, and explains why in this case no such claim could be made, given the fact that the applicant received a hearing before the Tribunal and was given an opportunity to consider and respond to matters of concern raised by the Tribunal at the hearing.  As she says:

    “Given the clear expressions of doubt made by the Tribunal at the hearing, and the total rejection of the applicant’s claims by the delegate, the Applicant was on notice that the entirety of his claims were in issue in the sense posited by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [165].”

13. The second ground of application was:

    “The RRT emphasised on some irrelevant questions at the oral evidence and ignored my political profile that put my life in risk.  In doing so the Tribunal may be said to have ignored relevant material, relied in part of irrelevant material and/or findings which were erroneous or mistaken. “

    The applicant does not assist the court by providing details of the irrelevant questions, or the material that was ignored, and without this it is difficult to come to any conclusion about the ground other than that it must have been dictated to him by a “friend”.  In the absence of any particularisation the ground cannot succeed.  

14. The third ground of application was:

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

    Once again there are no particulars, but it does seem to me, having read the Tribunal’s decision that there are no grounds for complaint that the Tribunal arrived at its decision outside the requirements of the Act.  The Tribunal considered the applicant’s evidence, it tested it and concluded that it did not meet the statutory requirement in ss.65 and 36(1) of the Act.

15. The fourth and final ground was:

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

    This strikes the court as being no more than a request for merits review with which this court is unable to be concerned.

16. The applicant appeared before me today with the assistance of an interpreter.  He told me that the Tribunal did not conduct any investigation as to what happened between him and the Congress Party and BJP.  He told me that he had had problems in India and that the Tribunal did not make any inquiries or investigate what happened to him.  There is a common misunderstanding by persons who appear in this court that a Tribunal has a duty to make inquiries about the claims made by applicants, if necessary in their country of origin, and especially when the Tribunal doubts the validity of a particular claim.  This has never been the case; Minister for Immigration & Anor v Le [2007] FCA 1318. Some gloss on that general statement was made by Wilcox J in Prasad v Minister for Immigration & Anor (1985) 66 FCR 155, although in SZHUH v Minister for Immigration & Anor [2008] FCA 1893 Perram J said:

    Sections 424 and 427(1)(d) of the Act both permit the Tribunal in its discretion to make further inquiries. However, it has been held that those provisions do not impose, generally speaking, any duty upon the Tribunal to make such inquiries. It may be that the decision of Wilcox J in Prasad provides the basis for an argument that in certain circumstances the existence of material which clearly calls for explanation or reconciliation may, as a matter of procedural fairness, generate a duty upon a decision-maker to make further inquiries. It is doubtful however whether the principle in Prasad has survived the enactment of section 422B of the Act.”

17. The duty to inquire was considered by the High Court in Minister for Immigration & Anor v SZIAI [2009] HCA 39, where at [25] it was held that:

    “Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as a jurisdictional error.”

    This is the highest that the duty to inquire now reaches and the type of inquiries that the applicant seeks that the Tribunal should have made do not fall within the definition found in that case.

18. The applicant also told me that things had changed in India since the Tribunal hearing. There was now a BJP government (I presume he means either in his state or in his locality).  However, I do not understand this as any difference because it is indicated in the Tribunal’s decision record that Mr P, who won the election, was a BJP candidate, and so far as I am aware the Congress Party remains in power in India federally.  In any event there is nothing this court can do about a change of situation after a Tribunal decision has been made.  The court is not reviewing the applicant’s claims but reviewing the Tribunal decision and the manner in which it was made. 

19. In all these circumstances I am unable to assist the applicant by providing review of this decision.  The application is dismissed.  The applicants must pay the first respondent’s costs assessed in the sum of $5,625.00.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  11 April 2013