SZRSP & Anor v Minister for Immigration & Anor

[2013] FCCA 361

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRSP & ANOR v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 361

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal – alleged breach of s.424A – alleged failure to consider an integer of a claim – no arguable case – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.424A, 476

Federal Circuit Court Rules 2001 (Cth), r.44.12

Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609
VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630

First Applicant: SZRSP

Second Applicant: SZRSQ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1798 of 2012

Judgment of: Judge Nicholls

Hearing date: 10 May 2013

Date of Last Submission: 10 May 2013

Delivered at: Sydney

Delivered on: 10 May 2013

REPRESENTATION

The Applicants: In person

Appearing for the Respondent: Ms McCaughan

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application made on 20 August 2012 and amended on 13 November 2012 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicants pay the first respondent's costs set in the amount of $3,239.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1798 of 2012

SZRSP

First Applicant

SZRSQ

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. I have before me today an application made on 20 August 2012, pursuant to s.476 of the Migration Act1958 (Cth) (“the Act”), and amended on 13 November 2012. The application, as amended, seeks review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 25 July 2012, which affirmed the decision of the delegate of the respondent Minister to refuse the grant of protection visas to the applicants.

Background

1. The applicants are citizens of India (Court Book – “CB” – CB 11 and CB 26). [I note that [17] to [33] of the Tribunal’s decision record are omitted from the CB. As a result, a Supplementary Court Book (“SCB”), comprising those missing paragraphs, was filed by the respondent Minister.] The first named applicant and the second named applicant are husband (“the applicant”) and wife (“the applicant’s wife”) (CB 1). They arrived in Australia on 9 March 2008 with the applicant’s wife holding a Student Visa (CB 13 and CB 40). The applicant arrived in Australia as her dependent (CB 13).

2. The applicants applied for protection visas on 26 August 2011 (CB 1 to CB 25). The applicant set out his claims in a statutory declaration attached to the protection visa application form (CB 33 to CB 34). The applicant’s wife applied for a protection visa as a member of his family and, therefore, she relied on his claims to protection (CB 26 to CB 32). I note she made no claims in her own right subsequently.

3. The applicant claimed to fear harm by reason of his political beliefs and practices (CB 33). More specifically, his membership and support of the Bharatiya Janata Party (“BJP”) (CB 33.3). Relevantly, the applicant claimed that, due to his involvement in the BJP, he was attacked at his place of business by members of a rival political party (the Congress Party). He claimed that the police intervened during the attack and lodged a case against some of the attackers, one of whom was recognised as an “underworld”, or “mafia”, figure (CB 33.7).

4. The applicant further claimed that, as a result of this case being registered with police, he was contacted by some anonymous person and asked to withdraw the charges (CB 33.8). The applicant claimed that he was unable to withdraw the charges because the police had already taken control of the matter. The applicant then claimed that he and his family were the subject of death threats. He also explained that he had married in August 2007 and his father did not agree with the marriage. He could not ask for help from his father. Therefore, he decided to leave India (CB 34).

The Delegate

1. The delegate found numerous inconsistencies in the applicant’s written and verbal submissions (CB 60.3). The delegate also considered it significant that the applicant had not relocated to another part of India and had waited over three years in Australia before lodging a protection visa application (CB 61.3 and CB 61.6). Essentially, the delegate refused the grant of protection visas on the basis that, when considered cumulatively, the applicant’s claims did not reveal any genuine fear of harm (CB 61.8).

The Tribunal

1. On 23 December 2011, the applicants applied to the Tribunal for review of the delegate’s decision (CB 63 to CB 66). They were invited to a hearing which, ultimately, took place on 17 May 2013 (CB 69 to CB 76). Only the applicant attended to give evidence ([28] at SCB 7). I should just note the only account of the Tribunal hearing before the Court is that contained in the Tribunal’s own decision record ([28] at SCB 7 to [33] at SCB 8 and [34] at CB 85 to [55] at CB 90). From that account it appears that the applicant sought to expand on the claims as he had initially put them.

2. By letter dated 23 May 2012, the applicants were invited to comment on, or respond to, certain information that the Tribunal considered would be the reason, or part of the reason, for affirming the delegate’s decision (CB 77 to CB 80).

3. There are a number of reasons, or bases, on which the Tribunal found adversely to the applicant and, therefore, the applicant’s wife. The Tribunal found a large number of inconsistencies in the applicant’s written claims, and oral evidence before the Tribunal, and before the delegate ([74] at CB 94 to [75] at CB 95). The matters that the Tribunal focused on in relation to the inconsistencies included inconsistent evidence about the applicant’s involvement in the BJP ([74] at CB 94), particularly in relation to donations that the applicant claimed that he had given, the applicant’s claimed assistance during a particular election period ([74] at CB 94) and his involvement after an alleged attack in December 2007 ([75] at CB 94 to CB 95).

4. Further, the Tribunal found inconsistency between the applicant’s evidence in relation to certain elections in Gujarat state, said to have been held in April 2007, whereas the Tribunal found that both the voting and the announcement of results took place in December 2007 ([74] at CB 94).

5. Even further, the Tribunal found that the applicant gave inconsistent information and evidence about the alleged attack in December 2007, and the circumstances surrounding the timing, and reasons as to why members of the Congress Party came to his place of business ([95] at CB 94 to CB 95). The Tribunal did not accept the applicant’s evidence concerning his claim to be involved with the BJP and rejected that he had been attacked, as claimed, in December 2007 ([72] at CB 93 and [81] at CB 96).

6. The Tribunal’s inability to reach the relevant level of satisfaction such that the protection visas must be granted was also informed by factors such as the delay in the applicant applying for protection once he had arrived in Australia ([80] at CB 96), certain “significant” information that the applicant gave, such as the circumstances surrounding the aftermath of the claimed attack in December 2007, and that that information was not included in his initial declaration in support of his application for protection. 

7. The return to India of the applicant’s wife on two occasions since arrival in Australia was also of concern to the Tribunal ([76] at CB 95). Of further concern was the evidence that the applicant’s business continued to thrive and to prosper in India and that no threats had been made towards his business partner ([76] at CB 95). 

8. The Tribunal also considered the applicant’s evidence that he was warned not to return to India because people were looking for him to “be vague and lacking in detail” ([76] at CB 95).

9. The Tribunal also took into account that the applicant had provided no documentary evidence about the case lodged with the police in respect of the attack ([77] at CB 95). Ultimately, the Tribunal concluded that the police case was no longer pending. That is, that no police case was, at least, current at the time of its decision ([77] at CB 95). 

10. The Tribunal found there was strong evidence to suggest that the applicant’s wife had considered applying for a student visa prior to the date of the alleged attack in December 2007 and the Tribunal considered that that cast doubt on the applicant’s claim that he had asked his wife to make that application following the attack so that he could escape danger ([78] at CB 95).

11. Ultimately, the Tribunal found that the applicant had not given a truthful account, or truthful evidence, about his experiences in India, nor about his reasons for leaving and his fears about returning. The Tribunal found the applicant not to be a credible witness and did not accept his factual claims about events in India ([81] at CB 96). 

12. On that basis the Tribunal was not satisfied that the applicant had a well-founded fear of persecution, having regard to the relevant test ([82] at CB 96). Further, the Tribunal was not satisfied that there were substantial grounds for believing that there was a real risk that the applicant would suffer significant harm if he were returned to India having regard to, what can be described as, the “complimentary protection criterion” (s.36(2)(aa) of the Act) ([83] at CB 96). On that basis the Tribunal affirmed the delegate’s decision ([87] at CB 97).

The Application to the Court

1. The original application to the Court set out three grounds, without particulars. I note that at the first Court date in this matter the applicant appeared in person. He was assisted by an interpreter in the Gujarat language. There was no appearance by the applicant’s wife. 

2. I sought to explain to the applicant on that occasion that the grounds of his application, as stated, could present some difficulty for him given their general nature and the absence of any particularity. The applicant and his wife were referred for advice to a lawyer on the Court’s “RRT Legal Advice Scheme”.

3. I also made orders on that occasion providing the opportunity for the applicants to file any amended application and any further evidence in support of any such application. Importantly, the applicant was put on notice of the possibility that when the matter next came on before the Court, albeit for directions, that in the absence of any matters of legal substance it may be that his application would end at that future time.

4. I note from a Certificate placed on the Court’s file that the applicants were provided with written advice by a lawyer on that panel. An amended application has been put forward. The grounds of that amended application are:

   “1. My point is that despite having attended in the hearing, it became imperative that, before the Tribunal member made up its mind to dismiss the application, such information was required to be sent to me written to make comments, in order for fully compliance of section 424A.

   2. The Tribunal failed to consider an integer of my claim, in failing to consider whether or not a member of a political party in India was at risk of harm from opposition party, and not able to access effective protection whilst the Tribunal formed the view that the applicant was a credible witness.”

Before the Court

1. When the matter was called today the applicant again appeared in person. He was assisted by an interpreter in the Gujarat language. The applicant’s wife did not appear. However, the applicant explained that he would appear on her behalf. The Minister was represented today by Ms McCaughan.

2. The Minister sought, in light of the paucity of the grounds of the amended application, that it was appropriate that the matter proceed to a hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth). I agreed with the Minister’s request and, for reasons which will become obvious, I am of the view that the application did not raise an arguable case for the relief that the applicants seek.

Consideration: Oral Complaints

1. When given the opportunity to make submissions, the applicant proceeded to put to the Court, or attempted to put to the Court, his reasons for not being able to return to India. He explained what he said was his “story” to the Tribunal and that it did not find favourably for him. He was plainly aggrieved by this. 

2. In essence, as I sought to explain to the applicant, this line of submission was nothing more than a disagreement with the facts as found by the Tribunal and sought to engage the Court in impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259). While that line of submission was not related to either of the grounds of the amended application it was also such that no arguable case for the relief sought was raised with this line of submission.

3. The second “complaint” put by the applicant orally to the Court was that there were documents relevant to his claims to protection in India and that he had asked the Tribunal for further time to provide what he said was “proof” of his claims. The applicant explained that he had been unable to obtain these documents previously because his relationship with his parents was “not good”. He said that at the hearing with the Tribunal he requested more time so that he could provide these documents.

4. I note again that this also does not relate to any of the grounds of the amended application. But, in any event, the complaint in the circumstances also does not raise any arguable case for the relief sought. That is because the complaint fails at the factual, or evidentiary, level. There is no evidence before the Court to support the applicant’s contention today that he made any such request of the Tribunal.

5. I note again that the applicants were given the opportunity to put before the Court further evidence in support of this application, and that included specific reference to a transcript of a Tribunal hearing. With the benefit of legal advice the applicants have not provided anything in that regard to the Court. The Court is therefore left with the Tribunal’s own, in that sense, unchallenged account. That is, unchallenged by any evidence to the contrary, of what occurred at the hearing. 

6. The Minister helpfully took the Court to [38] (at CB 85 to CB 86) of the Tribunal’s decision record, which sits within the Tribunal’s account of what occurred at the hearing. That paragraph provides that:

   “… The Tribunal asked the applicant if he had these documents to submit as evidence. He said that he does not have them with him. He left them at his parents’ home in India. His family was aware that he was financially supporting the BJP but they did not do so themselves. He did not really discuss the matter with them and does not know what they thought about it…”

7. Given the absence of any particularity today from the applicant as to what these documents may be, the Court can only infer that the common reference in his submissions today, and in the Tribunal’s account, to his “parents” is that the documents he was referring to today are indeed the documents that were discussed with the Tribunal as recorded at [38] (at CB 85 to CB 86) of its decision record. In that regard, I note there is nothing in the Tribunal’s decision record to even suggest, let alone support, the applicant’s claim today that he told the Tribunal that he wanted more time to obtain these documents. This complaint also does not raise an arguable case for the relief sought.

Consideration: The Amended Application

1. The grounds of the amended application, which the applicant confirmed today were the grounds that he sought to press before the Court, are also of similar character to the submissions and complaints to which I have already referred.

2. The first asserts a breach of s.424A of the Act. It is the case that the Tribunal is obliged by s.424A(1) of the Act to provide the opportunity to an applicant to comment on, or respond to, information which it considers would be the reason, or a part of the reason, for affirming the delegate’s decision. Beyond assertion, no such breach can be said to have been properly articulated either by way of ground one, or by what the applicant told the Court today.

3. As the Minister, in my view correctly, submitted the applicant does not say, and did not say, what information was not put to him pursuant to s.424A of the Act. In any event, I agree with the Minister’s description that it can be said that there were five different types of information, or categories of information, that were relevant in this context to the Tribunal’s decision.

4. First, independent country information is plainly “information” that was excluded from the operation of s.424A(1) by s.424A(3)(a) of the Act, given its “non-in personam” nature. Second, evidence that the applicant gave to the Tribunal and information, generally, in relation to his application for review is excluded from the operation of s.424A(1) by s.424A(3)(b) of the Act. Third, written information provided in relation to the application for protection visa is excluded by s.424A(3)(ba) of the Act. The fourth and fifth categories of information, that is, what the applicant told the delegate at the interview, and information in the family’s student visa application, are not excluded by any part of s.424A(3) of the Act. However, the Tribunal complied with its obligation, pursuant to s.424A(1) of the Act by writing to the applicants by letter dated 23 May 2012 (CB 77 to CB 80).

5. To the extent that ground one may also be said to be some complaint that the Tribunal was obliged, pursuant to s.424A, to put its adverse views, or a draft decision record, to the applicants for comment before making its decision, this must also be rejected. As was explained by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 (“SZBYR”) and with reference to what was said by the majority of the Full Federal Court in VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471, the Tribunal’s views of, even adverse views, what it makes of the applicants’ evidence is not “information” for the purposes of s.424A(1) of the Act (SZBYR at

   
   

   [17] – [18]). As stated therefore, the ground does not rise to reveal an arguable case for the relief sought.

6. I should note, that there appears to be some misunderstanding in ground two of one critical finding made by the Tribunal. Contrary to the assertion made in the ground, the Tribunal did not find that the applicant was a credible witness. In fact, it found to the contrary. It found that he was not a credible witness. It is now well-established that such a finding is a finding of fact which, if made with reasons that are probative of what is before the Tribunal and for which reasons are given, is made within jurisdiction (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407).

7. The thrust of the ground asserts a failure to consider the applicants’ claims. Such a failure, if made out, can lead to a finding of jurisdictional error as explained in such cases as NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1 and Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630. The Tribunal is compelled to consider all claims, and all aspects of claims expressly made or clearly arising on the material put before it.

1. But the difficulty for the applicant today is that his attempt to particularise this complaint immediately reveals the deficiency in the ground. The applicant says that the Tribunal’s failure was to consider whether or not a member of a political party in India was at risk of harm from the opposition party and not able to access effective (state) protection.

2. The difficulty for the applicant is that the Tribunal found that he was not such a member of a political party at risk from any opposition party. Once it had made that finding, the Tribunal was not required to go any further. Nor was the Tribunal required to consider the situation of what appears to be a hypothetical member of a political party in India who may be at risk of harm, as the ground seems to assert. I note in this regard that I cannot otherwise see that any other aspect of the applicant’s claims was not appropriately considered by the Tribunal.

3. As I said earlier, the Tribunal’s findings, including the finding on credibility, were all reasonably open to it on what was before it and, in light of that, the applicant’s second ground does not rise to an arguable case in relation to the relief that the applicant claims.

4. Before the Court today, the applicant also claimed that he was now ready to provide the “proofs”, as he described it, he had previously referred to in relation to the Tribunal decision. The difficulty for the applicant in that regard is that, as I sought to explain to him, this Court has no power, has no jurisdiction, to consider his claims, and his wife’s claims, to protection in this country. Therefore, even if the Court had given the applicant further time to provide any “proof”, that could not have assisted the applicant, in the circumstances, in revealing jurisdictional error on the part of the Tribunal. Nor, even if such “proofs” (whatever they are) were to be provided to the Court, could the Court intervene to provide a different outcome to that provided by the Tribunal.

5. In all, therefore, I agree with the Minister that the grounds of the amended application, as stated in the amended application and, indeed, as expanded by the applicant today, do not reveal an arguable case for the relief that the applicants seek. I am not satisfied that an arguable case is raised by the application, as amended, and, therefore, it is appropriate in the circumstances to dismiss the application, as amended, before the Court.

6. In my view, it is appropriate that an order for costs be made. Any party who comes to this Court generally runs the risk that, if they are unsuccessful, they will be called upon to pay the costs, or some of the legal costs, of the successful party. I can see no reason not to make the costs order in the usual way in this case. As to the amount, it is, indeed, a lot of money, but the applicants’ absence of funds is not a sufficient reason for the order not to be made, nor for it not to be made in the amount sought by the Minister. I have had regard to the material on the Court’s file. I am satisfied that the amount sought by the Minister is a reasonable amount, given the work that his legal representatives have done in responding to the application. I will make the costs order as sought by the Minister today.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  27 May 2013