SZRTY v Minister for Immigration

[2013] FCCA 696

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRTY v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 696

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – whether Tribunal failed to take into account relevant considerations or took into account irrelevant considerations – whether Tribunal breached statutory requirements of procedural fairness – whether Tribunal applied an incorrect test – where applicant claimed illness at time of Tribunal hearing prevented proper participation – where only evidence provided of affect on applicant provided at bar table – whether process contemplated by s.425 of the Migration Act 1958 (Cth) subverted – where credibility finding made – whether Tribunal fell into jurisdictional error.

Legislation:  

Migration Act 1958 (Cth) ss.65(1)(a)(ii), 422B, 424A(3), 425

Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant: SZRTY

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1963 of 2012

Judgment of: Judge Raphael

Hearing date: 21 June 2013

Date of Last Submission: 21 June 2013

Delivered at: Sydney

Delivered on: 21 June 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 $4,000.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1963 of 2012

SZRTY

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 8 August 2011 as the holder of a (subclass 676) Tourist Visa.  This was a visa he had applied for in London on 10 February 2011.  He had been in the United Kingdom on a student visa since 12 October 2009.  On 20 June 2011 he had left London for India, and remained there until 6 August 2011.  On 13 October 2011 he applied for a Protection (class XA) visa.  On 22 March 2012 a delegate of the Minister refused to grant a protection visa, and on 16 April 2012 the applicant applied for review of that decision from the Refugee Review Tribunal.  The applicant appeared before the Tribunal at a telephone hearing on 14 August 2012.  On 21 August 2012 the Tribunal determined to affirm the decision not to grant the visa.

2. The ground upon which the applicant claimed to be a person to whom Australian owed protection obligations was the Convention one of political opinion.  The applicant is a Sikh from Jammu.  He told that after he had returned to India from London he was approached by a person who turned out to be an operative in the Babbar Khalsa International (BKI), which is a Khalistan terrorist group.  The essence of the applicant’s fear was that having refused to assist this person and join the organisation, he would be in severe danger should he return to India.  He also suggested that although his student visa in the United Kingdom had not expired he could not return there because the reach of the BKI extended to that country.  The applicant’s claims to the alternative complementary protection visa arose out of these incidents and the fear that he alleged was the same.

3. The Tribunal questioned the applicant upon his story and took up with him some contradictions between the evidence given to it and his original claims made in a statement which is reproduced in the Tribunal’s decision record at [[21] CB 135-137].  The Tribunal also noted, and discussed with the applicant, certain independent country information concerning the BKI.

4. In its findings and reasons the Tribunal noted that whilst the applicant had provided some information concerning the general security situation in India he had not provided any corroborative documents supporting his claims that he had been targeted by members of the BKI or any other militant group.  In regard to the particular claims that the applicant had articulated the Tribunal expressed a view that:

   “At first glance Mr Applicant’s claims appear extraordinary.  He claims that he is still pursued by members of the BKI because he could not or would not arrange [for] a person to travel with him back to the United Kingdom.” [54 CB 142]

   The Tribunal continued:

   “The tribunal does not accept Mr Applicant’s claims that a member of the Babbar Khalsa, or anyone else, has threatened [ his] life.  [The applicant] claims that a member of the Babbar Khalsa would somehow believe that [he] had the means and power to arrange travel to England is farfetched.  Mr Applicant at that time held a UK student visa.  There is no indication that he had connections (either official or unofficial) or the wherewithal to arrange a visa or somehow assist a person [to] travel to England.  The tribunal does not accept that a member of the Babbar Khalsa would pursue Mr Applicant for this purpose.  Furthermore, the tribunal finds that Mr Applicant gave an implausible account of how he gave the man all his personal details.  The tribunal also notes that Mr Applicant’s evidence shifted on a number of points.” [58 CB 143]

   The Tribunal then set out the conflicts in the applicant’s evidence, before finding that:

   “… based on a combination of the shifting evidence and implausible claim, the tribunal does not accept that Mr Applicant’s life has been threatened by members of the Babbar Khalsa or any other people.  The tribunal further finds that Mr Applicant was not approached to join the Babbar Khalsa.  Therefore the tribunal finds that there is no real chance of Mr Applicant being persecuted because of his refusal or inability to assist Babbar Khalsa and decision not to join the organisation.”

5. The Tribunal then gave its consideration to the complementary protection obligations.  It concluded that as the applicant was not likely to suffer any persecution should he return to India, he would not suffer any significant harm by returning to India and therefore Australia owed him no protection obligations on that ground.

6. On 4 December 2012 the applicant filed an amended application, in which there were three grounds.  The first was:

   “The applicant claims that in making decision, the Refugee Review Tribunal acted without jurisdiction or in excess of jurisdiction in that it failed to take into account relevant considerations and took into account irrelevant considerations.”

   Particulars of that ground are then put forward, but the first paragraph merely refers to subparagraph 65(1)(a)(ii) of the Migration Act 1958 (Cth)[1] and its requirements.  The second paragraph states [as it appears in the Amended Application]:

   “Applicant claims that the Tribunal made a jurisdictional error when it made decision on assumption and probability.  The Tribunal’s finding of reasons is confused and test for persecution was not applied according to the rule of the Act. 

   Particulars:

   The Tribunal and the Department ignored the rules of procedural fairness and made  decision without giving any consideration of danger to the life of the applicant from the Babbar Khalsa, one of the Sikh Militant Organisation which is still active in India and the World. 

   The RRT has already recognised and wrote in the RRT decision that sources suggest that BKI is becoming increasingly active, particularly in Delhi and Punjab.  However, the RRT and the Department ignored the thousands of reported incidents of attacks and killings by the BKI and concluded that the applicant has no danger from the BKI should he relocate in another parts of India.”

   [1] The “Act”.

7. The rules of procedural fairness which apply in this case are those set out in Part 7 Division 4 s.422B and of the Act. Insofar as those rules refer to independent country information, then the provisions of s.424A(3) of the Act make it clear that the obligations of procedural fairness set out therein do not apply to information:

   “(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member.”

8. The Tribunal did take into account and discuss with the applicant the independent country information concerning the BKI, and it did note that some of that information indicated that the BKI was becoming increasingly active.  However, the applicant made a particular claim and not a general one.  He said that he was in danger from the BKI because of an event which the Tribunal found had never taken place.  Under those circumstances, the applicant was no different to any other Sikh living in that part of the world and was in no more danger from the BKI than anyone else.  Whilst the Tribunal does not say this in so many words, it must follow from the nature of its decision.  The Tribunal did not make any finding in relation to relocation, although that was discussed with the applicant.  This ground has no merit.

9. The third ground [as it appears in the Amended Application] was:

   “The Tribunal made a jurisdictional error when it did not follow Rules of Real Risk Test of persecution and harm.

   Particulars: 

   The applicant claims that the Tribunal formed the above opinion based on the limited information about the possible harm to the applicant.  The Tribunal ignored all other independent information and came on the conclusion that the applicant and persons like him have no fear of persecution and harm.  The Tribunal accounted generalised terrorist attacks in India as common phenomenon and concluded that the applicant should not fear from any such types of attacks. ”

10. The Tribunal did not ignore the independent country information, which is directly referred to in the decision record.  Its decision was based upon the fact that the applicant had made some specific claims about his own position and not general claims and that the independent country information did not assist it to consider those specific claims.  The Tribunal did not come to a conclusion that the applicant should not “fear from generalised terrorist attacks in India as a common phenomena”;  it made no finding on that matter.  It dealt with the claims that the applicant put before it.  I cannot see how this ground could be made out. 

11. In any event, when the applicant came before this court he made no reference whatsoever to any of these three grounds.  He told me that the reason that he believed the Tribunal had fallen into jurisdictional error was because it had required him to attend a hearing when he was ill.  He told me that he had had tuberculosis, was very sick at the time, and that he had sent a medical certificate to the Tribunal outlining his condition.  He told me he had lost 15 kilograms and was not allowed out into the community.  He was depressed and could not concentrate.  He told me that his state of mind was not good and that he could not express himself properly.  If he was allowed another hearing, he could prove that some of the things that were being said were wrong.  He told me that the Tribunal forced him to go to the hearing even though he had provided a medical certificate.  He told me he was taking 12 tablets a day. 

12. I took up with the applicant the evidence concerning his condition contained in the Court Book.  The first important document is a letter dated 9 July 2012 from Dr Qureshi (at [CB 113]).  It is addressed to a Tribunal officer, and from it one could infer that a request had been made by the Tribunal for such a report on the applicant’s condition.  The letter reads as follows:

    “Thank you for asking me to write about Mr Applicant who has been under my care as a patient in the last one year.  He presented to me with history of weight loss and fevers for a long time.  I had referred him to the hospital where he was diagnosed with Pleural and Pulmonary TB.  He began his treatment on 20 November 2011 and successfully completed in 6 months.  Out of this period he was under close surveillance of Hospital and was treated at home after wards [sic].  He is doing well since then. 

    Now he is suffering from allergic disorders and is taking medications with good control.  He is in good health otherwise.  I wish him good luck for his further career in Australia.” 

13. That letter was written on 9 July 2012 and the hearing took place on 14 August 2012.  In the meantime, there may have been some other communications between the applicant and the Tribunal which are not referred to in the Court Book, but on 13 August 2013 there is a note which states:

    “At Members [sic] instruction, I phoned applicant via TIS […] to advise due to his medical condition the hearing 13/08/2012 will now be conducted by telephone.  I further informed the applicant due to this condition he would be unable to attend in person and that an interpreter will be available at the Tribunal.  Mr Applicant confirmed he will not attend the Tribunal and will be available on his contact number at 09:30am 14/08,  hearing team advised of change in hearing request” 

14. A letter confirming this was sent to the applicant by registered post on 13 August 2013, but I am not prepared to accept that it was received by him on 14 August 2013 before the hearing took place: it being notorious that registered post is a rather slow method of communication. In any event, the applicant did appear at the hearing and did not make any request of the Tribunal that the hearing be adjourned or complain to the Tribunal that he was having any difficulty in relation to responding to its questions or presenting his evidence. The applicant provided no further medical evidence about his condition. The applicant has not provided any medical evidence to this court concerning his condition which might refute any suggestion or assumption on the part of the Tribunal that he was able to attend and appear in accordance with the provisions of s.425 of the Act.

15. A case in which consideration was given as to what might be required to establish a jurisdictional error on the part of a Tribunal arising out of the ill health or mental condition of an applicant was heard before a Full Bench of the Federal Court – Keane CJ, Emmett and Perram JJ – in Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575. Perram J, considering the requirements of s.425(1) in the context of two decisions of the High Court – namely Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553, and SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 – said at [83]:

    “There are, for present purposes two aspects of these observations which warrant particular emphasis.  First, the question is not whether the applicant has or has not been treated fairly; rather, it is whether the process contemplated by s 425 has been “subverted”.”

16. In order to consider whether a process has been subverted, evidence must be provided.  It cannot be provided in the form of mere assertions made from the bar table by an applicant at hearing.  In this particular case, there is nothing in the decision record that would indicate that the applicant was unable to properly conduct himself, and the contradictions in his evidence between what he told the Tribunal and what he had said in his initial claims are clear and striking.  The Tribunal was entitled to use those contradictions to come to a conclusion about the applicant’s credibility, which is a matter for the Tribunal par excellence: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407.

17. In those circumstances, this latter complaint of the applicant, which appears to me to be the only extant complaint, is not made out.  And I am therefore unable to provide him with the review that he requests.  The application is dismissed.  The applicant shall pay the respondents’ costs which I assess in the sum of $4,000.00.  

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:  1 July 2013