SZSLS v Minister for Immigration

[2013] FCCA 543

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSLS & ANOR v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 543

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicants claiming religious persecution in India – applicants not believed – no arguable case of jurisdictional error.

Legislation:  
Federal Circuit Court Rules 2001 (Cth)

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

First Applicant: SZSLS

Second Applicant: SZSLT

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3134 of 2012

Judgment of: Judge Driver

Hearing date: 14 June 2013

Delivered at: Sydney

Delivered on: 14 June 2013

REPRESENTATION

The Applicants 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 applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,500.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 3134 of 2012

SZSLS

First Applicant

SZSLT

Second 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 seeking review of a decision of the Refugee Review Tribunal (Tribunal).  The decision was made on 4 December 2012.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas.  There are two applicants, who are a husband and wife.  The relevant protection claims were made by the applicant wife.  Any references to “the applicant” in this judgment are intended to be references to her. 

2. The applicants claimed persecution in India as a result of the applicant husband’s conversion from Hinduism to Sikhism upon marriage to the first applicant.  The applicants arrived in Australia on 16 April 2009 on student visas.  The first applicant left Australia on 26 August 2009 and her husband remained here.  The first applicant returned to Australia on 9 May 2010.  It appears that the first applicant ceased studying and that her student visa was subsequently cancelled.  The applicants applied for protection visas on 23 December 2011.  The delegate refused that application on 30 May 2012.  The delegate found that the applicants’ claims had been fabricated. 

3. The applicants applied to the Tribunal for review of that decision. The Tribunal was unable to make a favourable decision on the papers and accordingly invited the applicants to a hearing in accordance with s.425 of the Migration Act 1958 (Cth) (Migration Act). Both applicants attended that hearing and gave evidence. They were questioned about their family relationships and marriage. The applicant husband was questioned about the circumstances of his claimed conversion to Sikhism. The applicant husband was also asked about his name, which is a Sikh name, and the names of his parents, which also are Sikh names. His evidence concerning his name was somewhat confusing. He said that he had been given a Sikh name upon conversion but accepted that he had always borne a Sikh name.

4. The Tribunal had regard to country information concerning the Sikh baptism ceremony.  The Tribunal used that information in order to cast doubt upon the applicant’s claims by reference to the applicant’s husband’s account of the conversion ceremony.  The Tribunal also had regard to the apparent speed with which the applicant’s marriage was arranged.  The Tribunal appeared to find that that speed was not consistent with their claim of family opposition to the marriage. 

5. The Tribunal expressed credibility concerns about the evidence of the applicants.  The Tribunal noted that it was unable to corroborate the applicant’s claim that the applicant husband was a Hindu when he met the first applicant and that he became a Sikh in order to marry her.  The Tribunal did not accept that the applicant husband was ever a Hindu.  It followed that the Tribunal was not satisfied that the applicants would suffer serious harm in India for the reasons they claim.

6. These proceedings began with a show cause application filed on 31 December 2012.  There are four grounds in that application:

   1.The Tribunal did not give to the applicant before the hearing the independent information that it had about Sikh Baptism. The Tribunal used this information (RRT decision record page 13). This was against section 424A of the Migration Act 1958.

   2.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.

   3.The Tribunal’s decision was unjust and made without taking into account the full gravity of applicant’s circumstances and consequences of claims.  The Tribunal did not consider the applicant who had been under immense and intimidating pressure from Hindu extremist.

   4.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.

7. I received as evidence the court book filed on 25 January 2013. 

8. The first applicant also provided an affidavit with her application.  I received paragraph 1 of that affidavit as evidence and paragraph 2 as a submission. 

9. With reference to Ground 1 of the application, I accept that the Tribunal’s use of country information concerning the Sikh baptism ceremony would, under the general law, have given rise to an obligation of disclosure of that information. However, the Tribunal’s obligation of disclosure is governed by its code of procedure, in particular s.424A. It is well settled that country information of the kind used by the Tribunal in this case does not require disclosure pursuant to that section[1].  I accordingly find that Ground 1 is not arguable.

   [1] See s.424(3)(a)

10. The second ground has no substance in the absence of particulars. Both applicants attended the hearing before me but neither of them was able to make any submissions bearing upon the grounds in the application. The third ground is no more than an attack on the merits of the Tribunal decision. The fourth ground is an assertion of procedural unfairness in the hearing opportunity afforded the applicants. In my view, it is apparent from the record of what occurred at the Tribunal hearing that the Tribunal met its obligation under s.425 of the Migration Act. I conclude that Ground 4 is not arguable.

11. There is, in my view, some curious reasoning in the Tribunal’s decision.  The decision of the delegate is in some respects more robust and more logical.  In particular, I do not see the logic in the Tribunal’s reasoning that the applicants’ claim of family opposition to their marriage is in some way contradicted by the speed with which they arranged their marriage.  I also find it curious that the Tribunal did not make use of the information provided to it that both the applicant husband and both of his parents bore Sikh names.  Nevertheless, the conclusions reached by the Tribunal were open to it on the material before it.

12. In substance, and by different routes, both the delegate and the Tribunal rejected the applicants’ claims. I see no arguable case of jurisdictional error by the Tribunal. Accordingly, I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

13. In consequence of the dismissal of the application the Minister seeks an order for costs, fixed in the sum of $2,500.  The first applicant claimed impecuniosity but that is not a reason for the Court to refrain from making a costs order.  I am satisfied that costs of not less than $2,500 have been reasonably and properly incurred on behalf of the Minister when assessed on a party and party basis.

14. I will order that the applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,500.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:  19 June 2013