SZSHM v Minister for Immigration

[2013] FCCA 1537

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSHM & ANOR v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1537

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Tribunal failed to accord procedural fairness – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.425, 424A(1), 424A(3)(a)

Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62

First Applicant: SZSHM

Second Applicant: SZSHN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2773 of 2012

Judgment of: Judge Manousaridis

Hearing date: 14 August 2013

Delivered at: Sydney

Delivered on: 4 October 2013

REPRESENTATION

Applicant: In Person

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs in the amount of $5,400.

3. The name of the first respondent recorded in the application is amended to “Minister for Immigration and Border Protection”.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2773 of 2012

SZSHM

First Applicant

SZSHN
Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The first applicant (applicant) applied to the first respondent (Minister) for a protection visa on the ground that he feared persecution from members of the Bharatiya Janata Party (BJP) in Gujarat State, India.

2. In his written application, the applicant claimed that in April 2009 members of the BJP assaulted him and ransacked his business premises after the applicant called a news conference in which he protested against the BJP forcing local businesses to donate money to the BJP. The applicant further claimed this led him and the second applicant, his wife, to leave India and move to New Zealand. He also claimed that three months after he left India, his house was destroyed by fire set by the right hand man of the “MLA of Mehasana”, Mr Anilkumar.

3. A delegate of the Minister refused to grant to the applicant a protection visa. The applicant then applied to the second respondent (Tribunal) for a review of that decision. After conducting a hearing under s.425 of the Migration Act 1958 (Act), at which the applicant gave evidence, the Tribunal affirmed the delegate’s decision. It did so because the Tribunal did not find the applicant to be a witness of truth concerning his claims. The Tribunal so found for three reasons:  it found inconsistencies between what the applicant claimed in his written application to the Minister and the evidence the applicant gave before the Tribunal; it found the applicant failed to mention in oral evidence important aspects of his written claims; and the Tribunal found aspects of the applicant’s claims to be implausible.

4. The applicant now seeks judicial review of the Tribunal’s decision.

Grounds of review

1. In his application, the applicant identifies four grounds of review. The first is:

   The Tribunal did not give to the applicant before the hearing the independent information that it had about politics in India. The Tribunal used this information. . . . This was against section 424A of the Migration Act.

2. At the hearing, I invited the applicant (who was not legally represented) to make submissions in support of this ground. The applicant responded by saying he needed time to obtain documents from India. He indicated he wanted these documents to show he had grounds for being granted a protection visa. I informed the applicant that the Court does not have jurisdiction to determine whether the applicant should be granted a protection visa. The applicant made no further submissions in support of this ground.

3. As it is, this ground is without merit. The Tribunal did refer to country information about the Congress Party in India and about the possibility of relocation within India.[1] This, however, is information to which s.424A(1) does not apply because it is 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”.[2] In any event, the Tribunal does not appear to have relied on this information. It refused the applicant’s claim because it did not accept the applicant as a witness of truth, and, therefore, did not accept his claims.

   [1] CB101-103, [67]-[75]

   [2] Section 424A(3)(a) of the Act

4. The second ground of review on which the applicant relies is:

   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.

5. At the hearing the applicant made no submission in support of this ground in response to my invitation that he do so.

6. In my opinion, there is nothing in the Tribunal’s reasons for decision to suggest the Tribunal did not conduct its review of the delegate’s decision according to law. I am satisfied that the Tribunal did so.

7. The third ground of review is:

   The Tribunal’s decision was unjust and made without taking into account the full gravity of the applicant’s circumstances and consequences of claim. The tribunal did not consider the applicant who had been under immense pressure from Hindu nationalist party BJP.

8. This does not disclose any reasonable ground of review. Further, it assumes as fact the claims the applicant made in support of his application for a protection visa but which the Tribunal did not accept.

9. The fourth ground of review is:

   The Tribunal denied the applicant procedural fairness by reaching adverse conclusions that certain aspects of his 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.

10. This ground appears to rely on the principles identified in the following passage from the joint reasons of French CJ and Kiefel J in Minister for Immigration and Citizenship v SZGUR:[3]

    Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision.

    [3] (2011) 241 CLR 594 at 599 [9]

11. The Minister submits that the Tribunal did not owe any common law duty of procedural fairness.[4] In my opinion, however, this does not necessarily provide an answer to this ground. The ground, if established, may well disclose jurisdictional error. The question, therefore, is whether the ground can be made out. In my opinion, it cannot.

    [4] Minister’s written submissions, [26], referring to Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 and SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62

12. The Tribunal put to the applicant what it understood it had heard from the applicant about the events the applicant claimed occurred before he left India to go to New Zealand.[5] The Tribunal then put to the applicant specific concerns it had with his account and noted the applicant’s responses.[6] After doing that, the following occurred:[7]

    The Tribunal put to the applicant that it had concerns about differences between his hearing evidence and his written statement. The Tribunal said it was concerned also that even during the hearing the applicant appeared to change his evidence significantly about dates that events occurred. Also, the Tribunal said that it did not seem as if the applicant knew much about the Congress Party despite claiming to be a party secretary for four or five years. This caused the Tribunal to doubt the applicant’s credibility and whether or not he really does fear persecution in India because of his political opinion. Asked whether he would like to comment or respond to these concerns, the applicant said ‘no’.

    [5] CB98 [53]

    [6] CB98 [54] – CB100 [62]

    [7] CB100 [63]

13. Although the transcript of the hearing before the Tribunal was not in evidence, there was no suggestion that the Tribunal’s summary of what occurred at the hearing is incorrect or materially incomplete.

14. I have no doubt the Tribunal clearly put the applicant on notice that it had concerns that the applicant might not be a witness of credit, and gave him an opportunity to be heard on the Tribunal’s concerns.

15. The fourth ground, therefore, also fails.

Conclusions and disposition

1. None of the grounds of review succeeds. The applicant has not shown the Tribunal made any jurisdictional error. I am satisfied the Tribunal conducted the review of the delegate’s decision according to law.

2. I will order that the application be dismissed, and that the applicant pay the Minister’s costs which I will fix at $5,400. I will also order that the Minister’s title as it appears in the application be amended to reflect his current title.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 4 October 2013