SZSEV v Minister for Immigration

[2013] FCCA 96

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSEV v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 96

Catchwords:  
MIGRATION – Review of Refugee Review Tribunal decision – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth)

Applicant: SZSEV

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2648 of 2012

Judgment of: Judge Driver

Hearing date: 19 April 2013

Delivered at: Sydney

Delivered on: 23 April 2013

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms M Stone
DLA Piper

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,700.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2648 of 2012

SZSEV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application filed on 14 November 2012 seeking review of a decision of the Refugee Review Tribunal (Tribunal) made on 17 October 2012.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the application a protection visa.

2. The applicant is from Kerala State in India.  He made claims to fear harm in India on the Convention ground of his political opinion as a supporter of the Communist Party of India (CPIM).  He applied for a protection visa on 24 January 2012.  The Minister’s delegate refused that application on 21 May 2012.  The applicant sought review by the Tribunal of that decision. 

3. The Tribunal was unable to make a favourable decision on the papers and invited the applicant to appear before the Tribunal at a hearing.  The applicant attended that hearing on 10 October 2012.  He gave evidence and presented arguments.  The presiding member questioned the applicant on matters of detail concerning his travel to and from India and his political activities. 

4. It is apparent from the Tribunal’s record of what occurred at the hearing that the Tribunal had and expressed some credibility concerns about the applicant’s claims.  In its decision, the Tribunal was not satisfied about the credibility of those claims.  The Tribunal referred to the difficulties it had with the applicant’s claims at hearing.  The Tribunal was concerned about the vagueness of some elements of his claims and a lack of knowledge by the applicant of particular issues, including the precise name of the party he claimed to support.

5. The Tribunal concluded at [60][1] of its reasons that it was not satisfied that the applicant had any significant political profile in his own area of Kerala as a supporter of the CPIM.  The Tribunal was not satisfied it was plausible that the activities the applicant described in support of one of the State’s major political parties could have generated animosity so severe that he would be at risk of harm because of them.  Nor was the Tribunal satisfied that the applicant would be at greater risk of harm than more senior members of the CPIM as he alleged.  

   [1] court book (CB) 129

6. The Tribunal concluded that the applicant had not developed for himself a political profile sufficient to cause him to be targeted for harm in his area of Kerala.  The Tribunal was not satisfied that the applicant was, in fact, ever threatened or harmed for the expression of his political opinion in the past.  The Tribunal accepted that the applicant bore a scar on his abdomen, but was not satisfied that that provided any convincing support of a claim that he was stabbed during a fight in the context of political conflict. 

7. The Tribunal was not satisfied that there is a real chance that the applicant would suffer serious harm for the reason of his asserted political beliefs if he were to return to India.  He had not claimed to fear harm in India for any other reason.  The Tribunal considered whether the applicant might meet the alternative criterion for complementary protection.  However, because the Tribunal was not satisfied that the information before it provided any basis for finding that there are substantial grounds to believe that, as a necessary or unforeseeable consequence of being removed from Australia to India, there would be a real risk that he might suffer significant harm, the Tribunal found that that criterion was also not met.

8. The applicant continues to rely upon his show cause application.  He has not taken up the opportunity I afforded him on 30 January 2013 to amend the application or provide written submissions.  He relies upon his affidavit filed with his show cause application.  I received the first paragraph of that affidavit as evidence and the second paragraph as a submission. 

9. I also received the court book filed by the Minister on 21 December 2012.  The applicant denied receipt of the court book.  Exhibit R1 is a letter dated 21 December 2012 to the applicant at his residential address purportedly enclosing the court book.  The applicant denied receipt of that letter.  The letter was not returned to the Minister’s solicitors who sent it.  I provided the applicant, for the purposes of today’s hearing, with a copy of the court book from the court file.  I explained to the applicant the contents of it. 

10. When I invited oral submissions from the applicant, he had nothing to say.  I explained to him the difficulties I had with the five grounds of review in that application:

    1. The [R]efugee Review Tribunal denied the applicant procedural fairness by reaching adverse conclusions that 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.

    2. The Tribunal did not give to the applicant before the hearing the independent information that it had about politics in Kerala, India. The Tribunal used this information (RRT decision record pages 11 to 13). This was against section 424A of the Migration Act 1958.

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

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

    5. The applicants satisfy the Convention definition as detailed in pages 2, 3 and 4 of the Tribunal decision.  The Tribunal has not considered this aspect and therefore committed factual and legal error.

11. The applicant, again, had nothing to say.  The Minister’s solicitor also made no submissions. 

12. In reply, the applicant said that everything he told the Tribunal was true and that he was a genuine refugee.  As I explained to him, that is beyond the scope of this proceeding. 

13. There is no substance to the asserted grounds of jurisdictional error.  There was no want of procedural fairness in the review by the Tribunal.  The applicant was properly invited to a hearing and did attend.  That hearing was a fair opportunity for the applicant to attempt to persuade the Tribunal of the veracity of his claims and also to answer the Tribunal’s expressed concerns. 

14. The applicant either knew or should have known the essential and significant issues upon which the review would turn.  The Tribunal was under no obligation under the Migration Act 1958 (Cth) to disclose independent country information to the applicant about politics in Kerala. The third ground is meaningless without particulars. The fourth ground is an attack on the merits of the Tribunal decision which are beyond the scope of this proceeding. In relation to the fifth ground, it is, in my view, clear that the Tribunal knew the task that it had to perform and correctly addressed the visa criteria.

15. I conclude that the applicant has failed to demonstrate an arguable case of jurisdictional error.

16. I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

17. In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $2,700.  Scale costs in this instance would be $3,239.  The applicant claimed impecuniosity, but, as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order.  I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,700.

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

Date:  23 April 2013