SZRTJ v Minister for Immigration
[2013] FCCA 522
•5 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZRTJ v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 522 |
| Catchwords: MIGRATION – Review of decision of RRT – no basis for finding of jurisdictional error. |
| SZIUD v Minister for Immigration & Anor [2006] FCA 1555 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 |
| Applicant: | SZRTJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1903 of 2012 |
| Judgment of: | Judge Raphael |
| Hearing date: | 5 June 2013 |
| Date of Last Submission: | 5 June 2013 |
| Delivered at: | Sydney |
| Delivered on: | 5 June 2013 |
REPRESENTATION
| For the Applicant: | In person |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay the first respondent’s costs assessed in the sum of $5,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1903 of 2012
| SZRTJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of India who arrived in Australia as a member of a family unit of his wife who had been granted a Subclass 573 student visa on 1 December 2008. He left Australia and returned to India between 5 June 2009 and 4 July 2009. The marriage did not last. He and his wife are now divorced. On 21 November 2011 the applicant applied for a protection (Class XA) visa. On 10 April 2012 a delegate of the Minister refused to grant the protection visa and the applicant applied for review of that decision from the Refugee Review Tribunal.
He attended a hearing before the Tribunal which, on 7 August 2012, determined to affirm the decision not to grant him the protection visa. The ground upon which the applicant claimed he was a person to whom Australia owed protection of obligations was the Convention reason of political opinion. In his application and before the delegate he claimed that he was considered to be associated with the Sikh Student Federation (SSF). As a result he was followed by the security agents and interrogated.
He told a story of working in a motor vehicle repair shop and having customers who turned out to be members of a banned organisation. He told that some photographs were taken of him with those customers and it was this that caused the police to suspect him of sympathy with that group. When the applicant came before the Tribunal he changed his claims saying that he had no association whatsoever with the Sikh Student Federation but had been imputed with a political opinion arising in similar circumstances from customers of his workshop who were associated with the Khalistan movement.
The applicant told that he had been arrested by the police and detained by them for approximately four hours in March 2008. He said that he was released and then appears to have moved around from relative to relative in various parts of the Punjab before coming to Australia. He claimed that if he returned to India he would be found by the police and tortured. The Tribunal did not accept the claims made by the applicant.
“[87]The Tribunal found the applicant a very unreliable witness. His description of events was general, vague and without the details which would have been expected if the events he was describing had actually happened. There were numerous inconsistencies in the evidence he presented to the Department and the Tribunal and in particular there were significant inconsistencies from what the applicant claimed in his initial application to the evidence that he gave to the Tribunal at the hearing.” [CB 93 - 94].
The Tribunal then went on between [88 – 109] [CB 94-97] to give details of the inconsistencies and implausibilities that it found in the applicant’s evidence. It also noted independent country information that the Khalistan movement had not been significantly active in the Punjab since the 1990s. Further it indicates:
“[105]Authorities in Punjab in India would only be interested in hardcore militants and as is reported by the UK Home Office, there is no evidence to the effect that rank and file members are separate to ....., are significantly active, or that their membership would bring them to the adverse attention of the authorities or that they would suffer persecution.” [CB 97]
Apart from the concerns which the Tribunal had expressed about the applicant significantly changing his story as to the association with the outlawed group, it had concerns that he had no documentation or any other way of corroborating his claims. The Tribunal was also concerned that when the applicant was asked for details of the torture that he had suffered he gave descriptions of torture that could not possibly have occurred to him because it related to sleep deprivation and food deprivation when he had told the police that he had only been in police custody for four hours.
Another matter that concerned the Tribunal was the lengthy delay between the applicant arriving in Australia and making his claim for protection. On 3 September 2012 the applicant sought review of the Tribunal’s decision from this court. There were three grounds of application. The first was:
“1.The Refugee Review Tribunal denied the applicant procedural fairness by reaching adverse conclusion 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.”
The applicant was provided with an opportunity to file an amended application which might have provided some more detail about the claims that he was making (or being made on his behalf by some ‘friend’). But he did not avail himself of that opportunity. It seems to me that what the applicant is asking for in this ground is for the Tribunal to have provided him with some sort of advance notice of its proposed conclusions. That is not what is required. In SZIUD v Minister for Immigration & Anor [2006] FCA 1555 Spender J said at [15]:
“Finally, there is no obligation in the Tribunal to give advance notice of its proposed adverse findings. The Tribunal is obliged to hear the applicant and the case he wishes to present. Its obligations to inform the applicant concerning matters are exhaustively set out in s 424A of the Migration Act1958 (Cth) (‘the Act’).”
For this reason there is no merit in the first ground.
The second ground is:
“2.The applicant satisfy the four key elements of 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.”
The sole purpose of the Tribunal hearing was to determine whether or not the applicant did indeed meet the key elements of the Convention definition and a proper reading of the Tribunal’s decision would indicate that that is exactly what was done. The argument made by the applicant is therefore an argument for merits review and that is impermissible in this court. It is the applicant’s duty to satisfy the Tribunal as to his well founded fear of persecution. And it is only upon reaching that state of satisfaction that the Tribunal may grant a visa. There is no merit in this second ground.
The third ground of application is:
“3.The RRT has failed to investigate applicant’s claim, specially the grounds of persecution in India. Therefore, the Tribunal decision dated 8 August 2012 was affected by actual bias constituting judicial error.”
As Ms Warner-Knight points out in her helpful written submissions:
“[26]The Tribunal is not required to investigate an applicant’s claims: Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [26]. Nor was there any obvious inquiry about any critical facts in issue that would have required the Tribunal to conduct an inquiry in the sense envisaged in SZIAI.”
She rightly notes that insofar as the applicant is asserting actual bias then such an application must be distinctly made and clearly proven: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. When the applicant came before me today he did not specify how the claim for bias might be proven. He told me that he believed that the Tribunal had been unfair to him in asking him to provide documentary evidence of his claims because he was in Australia and any documentary evidence he had was in India.
He also told me that because the police were torturing his family they had cut off all relations with him so he could not get any documents out of them. This information which was not put to the Tribunal is not information that the court can properly take into account and it does not establish bias on the Tribunal. It follows from what I have said above that I am unable to find any grounds upon which the applicant can be granted the review he seeks of this Tribunal decision. The application is dismissed. The applicant must pay the first respondent’s costs which I assess in the sum of $5,000.00.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Raphael
Date: 14 June 2013
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