SZSRC v Minister for Immigration

[2014] FCCA 908

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSRC v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 908

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – whether Tribunal required to provide to applicant independent country information relied upon – whether Tribunal failed to consider aspect of applicant’s claim – whether applicant provided opportunity to be heard – whether Tribunal required to make further inquiries – whether Tribunal fell into jurisdictional error.

Legislation:  

Migration Act 1958 (Cth), ss.65, 424A, 424AA, 477

Minister for Immigration and Citizenship vSZIAI (2009) 111 ALD 15

Applicant: SZSRC

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 536 of 2013

Judgment of: Judge Raphael

Hearing date: 30 April 2014

Date of Last Submission: 30 April 2014

Delivered at: Sydney

Delivered on: 30 April 2014

REPRESENTATION

For the Applicant: In person

Solicitors for the Respondent: Minter Ellison

ORDERS

1. Extension of time for the making of the application granted pursuant to s.477(2) of the Migration Act 1958 (Cth).

2. Application dismissed.

3. Applicant to pay the respondents’ costs assessed in the sum of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 536 of 2013

SZSRC

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of India.  He arrived in Australia on 5 September 2009 holding a dependant visa as the husband of an Indian citizen who was the holder of a valid student visa.  The relationship between him and his wife subsequently broke down.  He received a bridging visa on 27 February 2012, which was valid until 27 March 2012, but remained in the country thereafter. 

2. On 28 May 2012, he applied to the Department of Immigration for a protection (class XA) visa under s.65 of the Migration Act 1958 (Cth).[1]  On 7 August 2012 a delegate of the Minister refused to grant a protection visa and the applicant applied to the Refugee Review Tribunal for review of that decision.  He attended a hearing of the Tribunal.  On 11 February 2013 the Tribunal determined to affirm the decision not to grant the protection visa. 

   [1] The Act.

3. The ground upon which the applicant claimed to be a person to whom Australia owed protection obligations was one of political, or deemed political, opinion.  He told that in the small village in which he lived, in the Punjab his mother had been elected as a village head.  It appears that in this position she had some connection with the Akali Dal Party.  The applicant claimed that as a supporter of hers, and a person who assisted her in obtaining her position on the village council, he was subject to persecution from other persons in the village which he associated with the Congress Party.  He said that he had been beaten up by these people and because of the fear that he had, he got married and then came with his wife to Australia.

4. The Tribunal questioned the applicant upon his story and discussed with him a number of inconsistencies between various iterations of it in his written and oral submissions to the Department, the delegate and the Tribunal itself. At some stage during the course of the interview, the Tribunal put certain matters to the applicant under s.424AA of the Act. Those matters are set out in detail at [87-88] [CB 165-166]. The Tribunal also discussed with the applicant certain independent country information and obtained certain information itself found at [91-95] [CB 166-167] indicating that whilst local elections did take place in the area of the applicant's village, there was no information as to whether or not his mother had been elected.

5. In its findings and reasons the Tribunal asserted at [100] [CB 168]: 

   “The Tribunal does not accept that the applicant is a witness of truth, and finds that he has given vague, changing, implausible and inconsistent evidence in relation to matters central to his claims, throughout the process.  The Tribunal considers that he has fabricated his claims, and his responses to the Tribunal's concerns, in order to remain in Australia, and that his claims (and responses) are not true.”

6. The Tribunal then sets out the seven reasons why it has come to that conclusion between [101-113] [CB 168-171].  The Tribunal noted that the applicant had given internally inconsistent evidence at hearing about when his mother was elected as ‘charpange’[2].  It found that the applicant's evidence continued to change concerning whether his mother was a member of, or involved in, the Akali Dal Party.  It considered that the applicant had a significant lack of knowledge about his mother's campaign platform or her activities.  It concluded that the applicant gave inconsistent evidence about his own involvement in politics.  The Tribunal took into account the applicant's delay in leaving India after the elections, which had occurred in May 2008:  he had not left until August 2009.  The Tribunal felt that the applicant had given inconsistent evidence about the current dangers facing him if he returned and, finally, the Tribunal noted the applicant's delay in claiming asylum in Australia. 

   [2] The Tribunal notes at [CB 156] that, “”Charpange” is the spelling according to the applicant’s statement, it is spelt as “sarpanch” according to the independent country information: the Tribunal will adopt the applicant’s spelling for the purposes of this decision”.

7. The Tribunal concluded that there was no basis for the applicant's claims to fear persecution and that if he returned to India there was no real chance that he would be harmed by the community, the authorities or anyone else for a Convention based reason.  The Tribunal determined the applicant's claims under the complementary provisions of the Act in the same way, concluding that as he was not at risk of harm for any of the reasons put forward, he would not be someone to whom Australia could provide complementary protection.

8. On 19 March 2013 the applicant filed an application with this Court seeking review of the Tribunal's decision.  The Tribunal's decision record is dated 11 February 2013, but the letter in which it was enclosed is dated 12 February 2013.  The applicant assumed that 12 February 2013 was the relevant date, rather than the 11th, and so the application may have been one day out of time. 

9. The respondent, acting as a model litigant, indicated it was prepared to consent to the Court exercising its discretion to hear the matter under s.477 of the Act provided that the applicant amended his application so as to indicate, in accordance with s.477(2)(a)(b), that he intended to ask for such an extension and gave the reason why. This has now been done.

10. The application itself, drawn up by a "friend" of the applicant, has four grounds.  The first is: 

    “The Tribunal did not give to the applicant before the hearing the independent information that it had about India. The Tribunal used this information. This was against section 424A of the Migration Act 1958.”

    The short answer to this complaint is that independent country information is exempted from the requirements of s.424A of the Act by the provisions of s.424A(3)(a). In any event, the information would not appear to have been held by the Tribunal before the hearing, but something that it looked up after the hearing in order to see whether or not it could confirm the applicant's story. There is a further matter for comment in relation to this ground and that is, given the neutral nature of the information, it could not be said to be information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review.

11. The second ground of application was: 

    “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.”

    The applicant, or his friend, have not assisted the Court by providing any particulars of this ground, so that it is asking the Court to guess what provisions of the Act have been breached and in what way.  It is not for this Court to hazard a guess of what an applicant might mean, although it suspects that this is a general complaint in the form of a request for merits review.  This ground cannot be sustained.

12. The third ground of application was: 

    “The Tribunal's decision was unjust and made without taking into account the full gravity of the applicant's circumstances and consequences of claims.  The Tribunal did not consider the applicants who had been under immense and intimidating pressure from opposition party because of his mother involvement in politics.” 

13. Quite to the contrary, the whole gravamen of the Tribunal's decision was a consideration of the gravity of the applicant's circumstances and consequence of his claims.  It did consider whether the applicant had been under immense and intimidating pressure.  Having heard the applicant, and given consideration to his previous representations, the Tribunal concluded, for reasons which were open to it, that it could not be satisfied that the applicant had suffered.  That is a decision for the Tribunal par excellence.  There is no foundation for this claim.

14. The final ground was: 

    “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.” 

15. Once again, the friend that assisted the applicant in preparing this document clearly did not read, or if he did, then clearly misread, the Tribunal’s decision record. The one thing that the Tribunal did do was to provide the applicant with the information that it thought would be the reason or part of the reason for affirming the decision under review. It did so in the manner prescribed by s.424AA and thus was not obliged to otherwise comply with the provisions of s.424A. The applicant did have an opportunity to be heard. He was heard. He was not believed. There is no substance in this ground.

16. The applicant appeared before me today.  He told me that he felt the Tribunal did not do a proper study of the situation in India, and if it had, it would have known that circumstances were bad for him.  To the extent that this is a request for inquiries to be made by the Tribunal, the High Court stated, in Minister for Immigration and Citizenship vSZIAI (2009) 111 ALD 15, that there are very limited circumstances in which such an inquiry can be justified. As the majority said at [25]:

    “The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review.”

    But their Honours went on it make it clear that the circumstances in which this duty would arise were rare indeed and they certainly would not arise in a situation such as the one that was before the Tribunal in this case.  It was the applicant's duty to satisfy the Tribunal of his fears and not the Tribunal's duty to make a case for him.

17. The applicant also told the Court that the Tribunal did not understand his explanation properly, and that is why they did not believe him.  It did not sound to the Court as if the applicant was making a complaint about the quality of the interpreter service.  If he was, then he would have had to prove his complaint by providing transcript and other evidence, which he has not done.  It sounded as if he was saying that his explanation had confused the Tribunal.  That is almost certainly the case because a reading of the decision record reveals a serious number of inconsistencies in his responses to the Tribunal’s questioning.

18. Nothing the applicant has said causes the Court to alter the view that there are no grounds upon which it can be said the Tribunal fell into jurisdictional error in the manner in which it reached this decision.  The application must therefore fail and be dismissed.  The applicant shall pay the respondents’ costs which I assess in the sum of $5,000.00. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:  6 May 2014