SZRUY v Minister for Immigration

[2013] FCCA 326

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRUY & ANOR v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 326

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether there as any information before the Refugee Review Tribunal that enlivened s.424A of the Migration Act 1958 (Cth) – whether the Refugee Review Tribunal considered all claims made by the Applicant – whether the Refugee Review Tribunal was required to consider the issue of relocation – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.65, 91, 414, 424A

Cases cited:
SZRLA v Minister for Immigration and Citizenship & Anor (SYG929/2012)
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263
Randhawav Minister for Immigration, Local Government and Ethnic Affairs (1994) 125 ALR 265
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

First Applicant: SZRUY

Second Applicant: SZRUZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2085 of 2012

Judgment of: Judge Emmett

Hearing date: 21 May 2013

Date of Last Submission: 21 May 2013

Delivered at: Sydney

Delivered on: 21 May 2013

REPRESENTATION

The Applicant appeared in person with the help of an interpreter

Solicitors for the Respondents: DLA Piper

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2085 of 2012

SZRUY

First Applicant

SZRUZ

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 28 August 2012 and handed down on 29 August 2013 (“the RRT”).

2. The applicants claim to be a citizen of India and of the Sikh faith and Punjabi ethnicity. The first named applicant (“the Applicant”) is the husband of the second named applicant. The second named applicant completed an application for a protection visa as a member of the Applicant’s family unit without claims of her own.

3. To the extent that the second named applicant was intending to do no more than join in the Applicant’s application for judicial review of the RRT’s decision as a member of the Applicant’s family unit, her claims are dependent on those of the Applicant.

4. For those reasons, these Reasons deal only with the claims of the Applicant.

5. The issues in this case are whether s.424A of the Act was enlivened, whether the RRT considered all claims made by the Applicant and whether the RRT was required to have considered the issue of relocation. These issues are considered below in the context of considering whether the RRT’s decision is affected by jurisdictional error.

6. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the Applicant’s protection visa application claims and the decision of the delegate of the First Respondent (“the Delegate”) and a summary of the RRT’s review and decision.

Background

1. The Applicant arrived in Australia on 21 April 2008 having departed legally from India on a passport issued in his own name and a Subclass 573 Higher Education Sector visa which was valid until 11 September 2010.

2. On 12 May 2011, the Applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.

3. On 17 November 2011, the Delegate refused the Applicant’s application for a protection visa.

4. On 6 December 2011, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.

5. On 28 August 2012, the RRT affirmed the decision of the Delegate not to grant a protection visa.

6. On 25 September 2012, the Applicant filed an application in this Court seeking judicial review of the RRT’s decision.

Legislative framework

1. In their written submissions in SZRLA v Minister for Immigration and Citizenship & Anor (SYG929/2012), Minter Ellison, the solicitors for the first respondent, attached a useful summary of the relevant legislative scheme. That summary is as follows:

   “1. Under section 65(1) of the Act, the first respondent may grant a visa if he is satisfied of a number of matters, including that the prescribed criteria for the particular visa have been satisfied.

   2. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (Regulation 2.01 of the Migration Regulations 1994 (the Regulations) and to the Regulations).

   3. Section 36(2)(a) of the Act provides that:

   (2)  A criterion for a protection visa is that the Applicant for the visa is:

   (a)   a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

   4. The 'Refugees Convention' is defined in section 5 of the Act as meaning the Convention relating to the Status of Refugees done at Geneva on 28 July 1951. The 'Refugees Protocol' is defined in that section as meaning the Protocol relating to the Status of Refugees done at New York on 31 January 1967.

   5. Subject to certain exceptions, provided for in section 36(3) of the Act, Australia has protection obligations under the Refugees Convention to persons who satisfy the definition of 'refugee' in Article 1 of the Refugees Convention. Article 1A(2) of the Refugees Convention defines a refugee as a person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

   6. Section 36(2)(aa) of the Act provides that:

   (2)  A criterion for a protection visa is that the applicant for the visa is:

   (aa)  a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.

   7. Under section 411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.

   8. Relevantly, in conducting that review, the second respondent must comply with the natural justice hearing rule, the requirements of which are exhaustively stated in Division 4 of Part 7 of the Act (section 422B(1) of the Act). That Division contains sections 424A and 425, which provide that:

   424A  Information and invitation given in writing by Tribunal

   (1)  Subject to subsections (2A) and (3), the Tribunal must:

   (a)  give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.

   425  Tribunal must invite applicant to appear

   (1)  The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

   9. Under section 474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under section 474(1)(a) of the Act, a privative clause decision is final and conclusive.

   10. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.”

The Applicant’s application for a protection visa

1. The Applicant provided a statement in support of his protection visa application in which he stated the following: 

   a)The Applicant was an active member of the All India Sikh Students’ Federation (“AISSF”) and a supporter of the Khalistan movement and a teacher in Punjab.

   b)Government agencies interrogated the Applicant on a number of occasions and followed his every move. The Applicant is accused by the government of having links with the Pakistani Security Agency.

   c)The Applicant’s two brothers were beaten by the police during the interrogation and have now left India.

   d)Many members of the Applicant’s organisation have disappeared and been killed in custody, however the security forces refuse to admit that those members were ever arrested.

   e)Innocent people were arrested solely for being related to or living in the same village as members of opposition groups.

   f)Undercover agents were used to infiltrate the Applicant’s organisation, to kill members of the organisation and to discredit members by committing violent acts in their names.

2. The Applicant fears that because he was perceived as a possible sympathiser of the Khalistan movement, he would be at potential risk of detention, interrogation and torture.

The Delegate’s decision

1. On 3 November 20122, the Delegate invited the Applicant to attend an interview on 16 November 2011 to discuss his application and claims for protection.

2. The Applicant did not respond to the Delegate’s invitation and failed to attend the interview on 16 November 2011, attended an interview with the Delegate.

3. On 17 November 2011, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.

4. The Delegate found the Applicant’s claims to be “vague and lacking in specific details” and was not satisfied about the veracity of the Applicant’s written claims. The Delegate found that there was no evidence before it to indicate the Applicant is of any interest to the authorities in India for a Convention related reason or that he may face Convention related persecution in the reasonably foreseeable future if he returned to India. Further, the Delegate was not satisfied that any harm that the Applicant may suffer if he returned to India would not be protected by the authorities.

5. The Delegate found that the Applicant does not have a genuine fear of harm and that there is not a real chance of the Applicant being persecuted for a Convention related reason if he was to return to India.

The RRT’s review and decision

1. On 6 December 2011, the Applicant lodged an application for review of the Delegate’s decision by the RRT.

2. The Applicant provided no further documents in support of his review application.

3. On 4 April 2012, the RRT wrote to the Applicant informing him that he had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 25 May 2012 to give oral evidence and present arguments.

4. On 25 May 2012, the applicants attended the RRT hearing and gave evidence.

5. The RRT noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.

6. The decision of the RRT is accurately summarised by counsel/the solicitor for the First Respondent in his written submissions as follows:

“The applicant's claims and the RRT decision

9. The applicant claimed to be an active member of the All India Sikh Students Federation (the AISSF) and a supporter of the Khalistan movement.  He claimed to fear harm from the authorities for these reasons and because of his Sikh religion more generally.    The applicant claimed to have been interrogated by "government agencies" in the past and to have been accused of having links with the Pakistani Inter-Services Intelligence.

10. The RRT found on the basis of country information that the tensions which existed in India, and particularly in Punjab, and the risk of harm to Sikhs in India and in Punjab, had subsided to the point of not amounting to a real risk in the foreseeable future (see [62]). 

11. The RRT  found that there was nothing to indicate that AISSF members or sympathisers were ill-treated by the authorities in India or in Punjab and concluded that the applicant did not face a real chance of harm in India due to his Sikh religion or support for Sikh political issues (see [63]-[66]). 

12. The RRT also found that the applicant did not have a genuine fear of harm on the basis of the delay in his lodging an application for protection both after his arrival in Australia and after his Student visa expired, and his delay in departing India after receiving his passport.  The RRT considered that this lack of genuine harm supported its conclusions that the applicant did not face a real chance of serious harm in India (see [67]-[68]).

13. The RRT concluded that the applicant did not a well-founded fear of persecution for the purposes of the Refugees Convention and that there was not a real risk that he would suffer significant harm as a consequence of being removed to India for the purposes of the complementary protection provisions in the Act (see [70]-[71]).”

The proceeding before this Court

1. The Applicant was unrepresented before this Court, although had the assistance of an interpreter. 

2. On 14 November 2012, the applicants attended a directions hearing before me. I explained to the Applicant that this Court had no power to interfere with the decision of the RRT, unless the Court is satisfied that the RRT’s decision is affected by a mistake going to the jurisdiction of the RRT. I also explained to the Applicant that the grounds of the application made bare assertions that were unsupported by particulars.

3. At the directions hearing, the Applicant was also provided with a copy of the applicable costs schedule of the Court and I explained to the Applicant the consequences that would follow for him if a costs order was made against him. Namely, that whilst ever any costs order remained unpaid it becomes a debt to the Commonwealth of Australia. As such, the Applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected.

4. The Applicant then confirmed that he wished to continue with his application. The Applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the RRT hearing, as well as submissions in support.

5. At the directions hearing, the Applicant was referred to the Court’s Legal Advice Scheme for free legal advice. The Applicant was sent written advice in accordance with the Court’s Legal Advice Scheme after attempts over a three week period failed to make contact with the Applicant. The Applicant was also provided at the directions hearing with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.

6. At the commencement of the hearing, the Applicant confirmed that he has not filed any amended application, evidence or submissions in support of his application, although had filed submissions on 6 November 2012, prior to the first Court date.

7. The Applicant sought to tender a newspaper article that post-dated the RRT hearing and YouTube references. The tender of that material was objected to by the solicitor for the first respondent, Ms Stone, on the grounds of relevance. The Applicant confirmed that they were not documents that he had placed before the RRT, and on that basis, the tender was rejected.

8. The Applicant confirmed that he relied on the grounds contained in the application filed on 25 September 2012 as follows:

   “1. The Tribunal did not give to the applicant before the hearing the independent information that it had about the AISSF. The Tribunal used this information (RRT decision record pages 9 to 11). This was against section 424A of the Migration Act 1958.

   2. The Tribunal failed to consider an integer of the applicant’s claims, in failing to consider whether or not a AISSF member in India was at risk of harm from radical Hindus and government agencies, and not able to access effective protection whilst the Delegate of the Minister and Tribunal formed the view that the applicant was a credible witness.

   3.The Tribunal failed to consider properly the test whether the applicants would suffer serious harm as per s.91R(2)(a) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do), if they asked to relocate in India. The Tribunal failure to satisfy this statutory obligation was a serious jurisdictional ”

9. Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of the application generally.

10. The Applicant made no relevant submission in support of any of the grounds and said that he had nothing to say at all in support of Ground 1 and Ground 2. In support of Ground 3, the Applicant said that it is dangerous for him all over India, and that the RRT should have allowed him to stay in Australia.

11. The written submissions filed by the Applicant on 6 November 2012 did no more than restate the Applicant’s claims, briefly summarise part of the RRT’s decision record in relation to country information referred to by it, and referred to several authorities.

12. The written submissions also made the bare assertion, unsupported by particulars, evidence or submissions, that the RRT failed to assess the Applicant’s claims as required under s.414 of the Act. The written submission also asserted that the RRT failed to accord procedural fairness to the Applicant because it gave his claims little weight because of inconsistencies in his application for a protection visa and his delay in seeking protection.

Ground 1

1. The Applicant confirmed that his complaint in Ground 1 was that the RRT did not give to him for comment country information to which it referred and upon which it relied.

2. Section 424A(3)(a) excludes from the obligations of s.424A information 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. The country information about which the Applicant complains was information of that nature. In the circumstances, there was no obligation on the RRT to give that information to the Applicant for comment.

3. In any event, the RRT noted in its decision record that it put the country information to the Applicant for comment at the hearing.

1. It is well settled that the country information to which the RRT has regard and the weight it gives that information is a matter for the RRT (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

2. There was no other information before the RRT and to which it had regard that enlivened any obligation under s.424A of the Act. It is well established that the RRT’s disbelief of an applicant’s evidence arising from inconsistencies therein is not “information” for the purposes of s.424A of the Act. Neither does information include the RRT’s subjective appraisals, thought processes and determinations, defects, gaps or lack of detail in an applicant’s evidence (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18] per Gleeson CJ, Gummow, Callinan Heydon and Crennan JJ; VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 at [14] per Finn and Stone JJ).

3. Accordingly, Ground 1 is not made out.

Ground 2

1. Ground 2 asserts that the RRT failed to consider an integer of the Applicant’s claims, being whether a member of the AISSF was at risk of harm from radical Hindus and government agencies.

2. A fair reading of the RRT’s decision record makes clear that the RRT considered whether a member of the AISSF was at risk of harm from Indian authorities and found that they were not. Further, the RRT found that there was no information to support the Applicant’s assertion that the police in India or in Punjab do not provide protection to Sikh men.

3. In relation to the Applicant’s assertion in Ground 2 that the RRT failed to consider if he was at risk of harm from radical Hindus, no such claim has been made by the Applicant before the assertion in Ground 2. Such a claim does not squarely arise on the evidence and material before the RRT in terms that would have required the RRT to consider such a claim. The function of the RRT is to respond to the case that the applicant advances (Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 405 per Kirby J; SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at [17] per Selway J; NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [58]-[60] per Black CJ, French and Selway JJ).

4. To the extent that Ground 2 asserts that the Delegate formed the view that the Applicant was a credible witness, such an assertion misunderstands the Delegate’s reasons. As stated above, the Delegate was not satisfied about the veracity of any of the Applicant’s claims given that the Applicant failed to attend an interview. The Delegate found the Applicant’s written claims to be vague and lacking in specific detail. On the evidence and material before it, the Delegate comprehensively rejected the Applicant’s claims to have a well founded fear of persecution in India for any Convention related reason.

5. Accordingly, Ground 2 is not made out.

Ground 3

1. Ground 3 asserts that the RRT failed to consider the serious harm that the Applicants may face if they were asked to relocate in India.

2. It is well established that, in the light of confident adverse findings made against an applicant that the applicant did not have a well-founded fear of persecution, it is unnecessary for a Refugee Review Tribunal to consider whether an applicant can relocate (see Randhawav Minister for Immigration, Local Government and Ethnic Affairs (1994) 125 ALR 265).

3. Given the RRT’s comprehensive rejection of the Applicant’s claims to fear Convention related persecution in India and its finding that the Applicant did not hold any subjective fear of persecution in India, there was no obligation on the Tribunal to consider the issue of relocation.

4. Accordingly, Ground 3 is not made out.

Applicant’s further complaints in written submission

1. In written submissions filed prior to the first Court date, the Applicant asserted that the RRT failed to assess his claims as required under s.414 of the Act. That allegation was unsupported by particulars, evidence or further submissions. By itself, such a complaint is meaningless. Plainly, the RRT reviewed the Delegate’s decision. The fact that the RRT ultimately affirmed the decision under review does not, without more, suggest that the RRT did not comply with s.414 of the Act.

2. The written submissions also asserted that the RRT failed to accord procedural fairness to the Applicant because it gave his claims little weight. That allegation was also unsupported by particulars, evidence or further submissions.

3. It is well established that a Refugee Review Tribunal is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does a Refugee Review Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

4. The RRT’s findings were open to it on the materials and evidence before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the RRT (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

5. Otherwise, the RRT invited the Applicant to come to a hearing, to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Applicant attended such a hearing. There is no evidence before this Court to suggest that either the RRT’s review or the RRT’s decision was conducted or made other than in accordance with Pt.7 Div.4 of the Act.

6. In the circumstances, there was no failure by the RRT to give procedural fairness to the Applicant.

7. It is for the Applicant to satisfy the RRT, being the relevant decision-maker, that he meets the criteria for being a refugee. The RRT, as the relevant decision-maker was not so satisfied. Accordingly, pursuant to s.65(1) of the Act, the Applicant must be refused a protection visa.

8. In the circumstances, none of the complaints made by the Applicant in his written submission, dated 6 November 2012 demonstrate any jurisdictional error on the part of the RRT.

Conclusion

1. A fair reading of the RRT’s decision record makes clear that the RRT understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The RRT put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses. The RRT also put to the Applicant independent country information before it and invited the Applicant to comment upon it. The RRT also identified independent country information to which it had regard. The RRT then made findings based on the evidence and material before it. Those findings of fact were open to the RRT on the evidence and material before it and for the reasons it gave. A fair reading of the RRT’s decision record makes clear that the RRT reached conclusions based on the findings made by it and to which it applied the correct law.

2. In the circumstances, the RRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

3. The RRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

4. The proceeding before this Court should be dismissed with costs.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date:  21 May 2013