SZSRM v Minister for Immigration and Anor (No.2)
[2013] FCCA 1613
•25 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSRM v MINISTER FOR IMMIGRATION & ANOR (NO.2) | [2013] FCCA 1613 |
| Catchwords: MIGRATION – Application to set aside orders dismissing an application to review a decision of the Refugee Review Tribunal for non-appearance. |
| Legislation: Migration Act 1958 (Cth), ss.65, 424A |
| Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 250 Re Minister for Immigration and Multicultural Affairs; Ex parteDurairajasingham (2000) 74 ALJR 405; [2000] HCA 1 SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 SZSRM v Ministerfor Immigration & Anor [2013] FCCA 1340 |
| Applicant: | SZSRM |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 556 of 2013 |
| Judgment of: | Judge Barnes |
| Hearing date: | 25 September 2013 |
| Delivered at: | Sydney |
| Delivered on: | 25 September 2013 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The name of the First Respondent be amended to read ‘Minister for Immigration and Border Protection’.
The application in a case filed on 6 September 2013 be dismissed.
The Applicant pay the costs of the First Respondent in relation to the application in a case fixed in the sum of $2,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 556 of 2013
| SZSRM |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
This is an Application in a Case filed on 6 September 2013. The Applicant seeks that the Court set aside orders that it made on 30 August 2013 pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) dismissing his application for review of a decision of the Refugee Review Tribunal. That order was made on the basis that there was no appearance by the Applicant on 30 August 2013, the date fixed for final hearing of this matter, and no explanation provided for the Applicant’s non-appearance (see SZSRMv Ministerfor Immigration & Anor [2013] FCCA 1340).
In his Application in a Case the Applicant asked for “an order to grant an extension of the date of hearing”. As the matter had already been dismissed, no adjournment or extension of time could be granted. However I have considered his application as an application under r.16.05 asking the Court to set aside the judgment and orders made on 30 August 2013.
In determining whether it is in the interests of the administration of justice to reinstate substantive proceedings there are two main issues of concern. The first is the circumstances which led to the applicant’s non-appearance on the date the matter was listed for hearing and the explanation provided in that respect. The second is whether the substantive application had sufficient prospects of success (see, albeit in a slightly different context, Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 250 at [13] in which the Full Court of the Federal Court referred to the need for an applicant to show that he had an arguable case in the principal proceeding).
In relation to the circumstances which led to the Applicant’s non-appearance, the Applicant relied on an affidavit sworn by him on 6 September 2013. He referred to the date of hearing being 30 August 2013, but claimed he could not attend the Court at the scheduled time on the day of hearing because of illness. He claimed he was suffering from “synus” (which I take to be a reference to sinus), that on the day of the hearing he was “feeling dizziness” because of the effect of medicine he took for sinus, and apologised for not informing the Court on the same day. He also claimed to have an arguable case, a matter to which I will return.
The Applicant attached a medical certificate dated Friday, 30 August 2013. It is brief in the extreme and merely certifies that the Applicant “is receiving medical treatment” and that from 29 August 2013 to 30 August 2013 he will be “unable to attend his usual occupation”. The medical certificate does not specify the condition from which the applicant was suffering which led to the issue of a medical certificate. Nor does it address in any way his fitness to attend court or participate in a hearing. I note in that respect the remarks of Lindgren J in NAKX v Ministerfor Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 in relation to medical certificates. The certificates before the Federal Court in NAKX in fact identified medical conditions and stated generally that the two applicants in that instance would be unable to attend court on specified dates. However Lindgren J found that such certificates failed to address what his Honour described as the “critical question whether, and if so why, the medical condition or the medical treatment would prevent [the applicant] from travelling to the Court and participating effectively in a court hearing” (at [6]). The same may be said in this case. The medical certificate is quite unsatisfactory. It is not a sufficient or satisfactory explanation for the Applicant’s non-attendance.
The Applicant was cross-examined in relation to his affidavit evidence and sought to provide a further explanation in relation to his condition. He explained that he had suffered from chronic sinus for some four or five years and that he had taken medication. He claimed, in particular, that he started to notice symptoms of this problem on 27 August 2013, that he took medication that he had at home and then went to the doctor. He claimed the medication made him sleepy and, indeed, that he woke up after the hearing time on 30 August 2013. He was somewhat vague about the date on which he attended the doctor, initially claiming that it was 29 August 2013, but not being able to explain why the certificate was dated 30 August 2013. He then claimed he did not remember the dates.
While he claimed that he called the registry, the Applicant was not able to recall precisely when that occurred, whether on the Friday or the Monday. Nor did he provide any reasonable explanation for his failure to contact the Court at or before the time of the hearing in circumstances where he claimed he was suffering from what he regarded as a chronic condition for some days prior to the hearing.
I accept that the Applicant was, as he claimed in his affidavit evidence, suffering from sinus. I note that he referred to various medications that he claimed he had been taking and what he said were the side effects. However on the evidence before the Court, the Applicant has not established that the condition from which he suffered was such that he was unable to travel to the court or participate effectively in a hearing on 30 August 2013.
He went to the doctor on 29 or 30 August 2013. He was able to attend the doctor’s surgery albeit his evidence is that the doctor’s surgery is much closer to his home than the Court.
Moreover, on his own evidence, the Applicant was aware of the time, date and location of the hearing. He was aware that his symptoms commenced on 27 August 2013, but took no steps to contact the Court to request an adjournment or to contact the Minister’s solicitors. His inaction occurred in circumstances where he was present at the first court date when the matter was listed for hearing on 30 August 2013. He also agreed that he had received two letters from the Minister’s solicitors (copies of which are annexed to an affidavit of Laura Frances Weston affirmed on 23 September 2013), including one dated 23 August 2013, and that those letters not only reminded him of the time, date and place of the hearing but also (critically) informed him that if he did not appear the Minister may apply to have the matter dismissed with costs.
In all the circumstances, the Applicant has not provided an entirely satisfactory explanation for his failure to appear. In any event, even taking the Applicant’s claims in relation to the effects of sinus and medication on him at their highest (notwithstanding the absence of a satisfactory medical certificate), when one turns to consider the merits of the substantive application, there is insufficient merit to warrant reinstatement of the application. I note in that respect that I am considering this issue at a time after the date for the final hearing. This is not a case in which the issue arose at an earlier stage in the proceedings such that the Applicant may not have had time to formulate grounds, to seek whatever advice he saw as appropriate, or to consider issues raised by the First Respondent in relation to his grounds of review. Any leeway that might be afforded to an Applicant at an earlier stage of the proceedings is not applicable in the present case.
The Applicant filed and seeks to rely on an amended application dated 14 June 2013. The Minister filed and served on the Applicant written submissions addressing the grounds in his amended application. The Applicant has had the opportunity to put whatever argument he wishes to make at its highest in relation to his grounds for review of the Tribunal decision.
Insofar as the Applicant appeared to assume that if he provided an explanation for his non-appearance at the final hearing the matter would be reinstated, that is not the case. It is necessary for the Court to have regard to the merits of the substantive application.
In his affidavit filed in support of the Application in the Case, the Applicant claimed generally that he had an arguable case and that he challenged the validity of the Tribunal decision on two grounds. These grounds are not identical to the grounds in the Amended Application. In oral submissions the Applicant stated that he relied on the grounds in the Amended Application. He had nothing of substance to add to those grounds. He contended the Tribunal decision was not fair and that it did not consider his claims, issues to which I will return. I have considered the grounds in the Amended Application and also in the affidavit and raised in the Applicant’s brief oral submissions today.
In order to consider the grounds relied on by the Applicant, it is necessary to refer to the background to this case, the issues raised by the Applicant and the Tribunal decision.
The Applicant first came to Australia in April 2005 as the holder of a student visa. He returned to India on at least three occasions thereafter. He is a citizen of India who first lodged an application for a protection visa on 22 March 2012. That application was found to be invalid and he lodged a second and valid application on 22 May 2012. He provided information in support of his claims which were, in essence, that he had been involved in student politics while at university and was pressured by supporters of the BJP and that he feared harm from a money lender who had lent his father money, because the money had not been repaid.
The Applicant attended an interview conducted by a delegate of the First Respondent. His application was refused. In support of his review application he provided the Tribunal with a copy of the delegate’s decision which set out his migration and visa application history which, among other things, included the refusal of a skilled visa in relation to which the applicant had unsuccessfully sought review in the Migration Review Tribunal, the Federal Magistrates Court and the Full Court of the Federal Court and had made an unsuccessful application for leave to appeal to the High Court.
The Applicant attended a Tribunal hearing. The only evidence before the Court of what occurred in the Tribunal hearing is the Tribunal’s account in its reasons for decision. I note in that respect that the Applicant had the opportunity, pursuant to the orders made on the first court date, to file a transcript of the Tribunal hearing. He did not take up that opportunity.
The Tribunal recorded in some detail what occurred at the hearing, including information the Applicant provided about his visa history and previous applications, as well as his claims about his political activities in India and the claims about the money lender. The Tribunal set out a number of concerns and issues raised with the Applicant in the hearing and his responses and comment.
The Tribunal also recorded that at the hearing the Applicant asked for an opportunity to provide a copy of the deed with the money lender dated 2004/2005 that was said to state that a certain amount of money was owed. The Tribunal gave the Applicant seven days to provide such documents, suggesting he might get a copy faxed or emailed from India. He did not submit any further correspondence or documents to the Tribunal by the date specified or prior to the Tribunal decision.
In its decision the Tribunal summarised the Applicant’s claims to fear persecution on the basis of actual or imputed political opinion based on his involvement with politics as a student and thereafter. In addition he claimed to fear harm from a money lender because a debt owed by his family had not been repaid.
Based on the Applicant’s oral evidence, as well as supporting evidence, the Tribunal accepted his claims about coming to Australia and studying, his lack of success in obtaining a visa and his attempts to seek review of the decision in relation to such a skilled visa. It observed that he had sat more than 10 English language tests, that he appeared, on the basis of his evidence to the Tribunal, to speak and understand English very well, and that he had been devoted and able enough to complete his Master’s degree with first class honours. However he had been unsuccessful in obtaining the visa for reasons relating to his lack of competent English based on his IELTS test results. The Tribunal expressed sympathy for the Applicant in his circumstances, but pointed out that this did not mean that it accepted his protection visa claims.
The Tribunal found that the Applicant had fabricated his protection visa claims and that his claims and responses to concerns raised by the Tribunal were not true. It reached that conclusion because it found he had given vague, changing, implausible and inconsistent evidence in relation to matters central to his claims throughout the process. It set out in some detail its concerns, the Applicant’s explanations, and its views of those explanations.
First, the Tribunal had regard to the fact that the Applicant raised a new claim at the Tribunal hearing about threats received in relation to his political activities and then gave inconsistent changing evidence about that claim. Secondly, he was said to have been unable to explain why he was concerned about repercussions from his claimed political activities from almost 10 years ago, other than by reference to the claimed threats that he had made for the first time at the Tribunal hearing. The Tribunal did not accept the Applicant’s explanations in that respect. It noted that if his fear only arose some two or three weeks earlier that was inconsistent with the fact that he had claimed to fear persecution for his imputed or actual political opinion about one year earlier.
The Tribunal found that the Applicant’s evidence about his political involvement in India was vague and inconsistent and changed in response to the Tribunal’s concerns in a number of respects.
In relation to the Applicant’s claims about the debt owed to the money lender and his fears, the Tribunal found his evidence was inconsistent with evidence of funds he had spent in Australia. It found his failure to pay any money towards the claimed debt to be inconsistent with his claim that the money lender was dangerous and sought to cause him or his family harm or with his claim that there was a debt owed to the money lender. The Tribunal considered these matters undermined the Applicant’s credibility.
The Tribunal also had regard to the Applicant’s delay in claiming protection after he had first arrived in Australia and his various return visits to India. The Tribunal did not accept the Applicant was a credible witness. It considered his evidence was not reliable or truthful for all of these reasons.
The Tribunal addressed the Applicant’s explanations, but did not accept that the issues in his evidence were attributable to the fact that some events occurred a long time ago, or to the fact that he was frustrated or nervous (which was said to be understandable) or because English was not his first language. The Tribunal noted that the Applicant had not produced the money lender’s deed about which, in any event, he had provided inconsistent evidence which was said to be indicative that the document did not exist.
For these reasons, the Tribunal did not accept the Applicant’s claims about his involvement in, support for or membership of any political organisation or parties or participation in student politics. It did not accept that he was harassed, searched for, harmed or threatened for any political reason, that any political party had any interest in him, or that he would become involved in politics in India such as to bring him to the attention of the BJP or other persons, parties or organisations. Nor did it accept that his brother or other family members had been harassed, visited or threatened about the Applicant. Nor did it accept that the Applicant or his family owed any money to a money lender which had led to a situation of the Applicant fearing any harm.
The Tribunal also considered the Applicant’s claims on the basis that he was a member of a minority group and the BJP did not want minorities to get involved. The Tribunal noted that he had not specified his minority group although in his protection visa application he listed his religion as Christian (which was a minority group in the part of India from which he came). Nor did the Applicant claim to fear harm on the basis of his religion or membership of a minority group in his protection visa application or at the hearing (despite the fact he was told it was important that he provide the Tribunal with all the reasons why he feared returning to India). The Tribunal did not consider the Applicant had made a claim or that there was any available evidence to suggest that he had experienced or feared persecution on the basis of religion or membership of a minority group.
The Tribunal concluded that there was no basis for the Applicant’s claims to fear persecution. It was satisfied there was no real chance he would be at risk of persecution if he returned to India now or in the reasonably foreseeable future for a Convention reason.
Given the Tribunal had rejected the Applicant’s claims and did not accept on the evidence that he feared any harm or was at risk of any harm from anyone if he returned to India, it found no basis to find that he feared or would be subjected to significant harm in India. Having regard to all the Applicant’s circumstances and in light of the findings of fact made, it was not satisfied he met the complementary protection criterion.
The Applicant confirmed today that he sought to rely on the grounds in the Amended Application filed on 14 June 2013. The first ground in the Amended Application is that the Tribunal acted without or in excess of jurisdiction in that it failed to take into account relevant considerations and took into account irrelevant considerations. The particulars refer to s.65 of the Migration Act 1958 (Cth) (the Act) and reiterate the claim that the Tribunal made a decision based on irrelevant facts and findings, but do not identify the considerations which form the basis for these complaints.
In oral submissions the Applicant reiterated that the Tribunal failed to consider his claims. I sought clarification. He said that the Tribunal failed to “consider” part of his claims, but was not able to explain what he meant or to identify claims that he said had not been considered.
As the First Respondent submitted, the Tribunal’s decision record shows that it had regard to and considered all of the Applicant’s claims and evidence, including the integers of the Applicant’s claims raised in his protection visa application and at various times in the process. Moreover it addressed such claims in its findings and reasons in considering whether the Applicant met the applicable statutory criteria. The Applicant has not established that there is even an arguable case that the Tribunal failed to take into account any relevant consideration in the sense referred to by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 at [15]–[25].
The Applicant has not particularised and nor is it apparent that the Tribunal had regard to any matters irrelevant to the Tribunal’s decision in the sense considered in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [73]. There is nothing in the material before the Court to give any support to a claim that the Tribunal considered any matters that it was bound by statute not to consider.
Insofar as the Applicant may be seen as taking issue with the Tribunal’s consideration of documents in relation to his migration history, there is nothing in the material before the Court and nor did the Applicant contend that it was not open to the Tribunal to have regard to such matters, in particular as the basis for accepting the Applicant’s claims relating to his background, arrival in Australia and education. Insofar as the Tribunal referred to the time of the Applicant’s initial protection visa application and his extensive litigation history in discussing his delay in claiming protection, these were matters not only contained in documentation, but also referred to in the delegate’s decision and discussed by the Applicant at the Tribunal hearing as the Tribunal recorded in its reasons for decision (see s.424A(3) of the Act).
There is no substance in ground one in the Amended Application.
Ground two is that the Tribunal made a decision “on assumption and probability”, that its “finding of reasons is confused” and that the test for persecution was not applied “according to the rule of the Act”. The particulars are that:
[t]he Tribunal and the Department ignored the rules of procedural fairness and made decision without giving any consideration of danger to the life of the applicant from lenders of money from which the applicant’s father took it. The applicant died (sic) from the harassment and torture and threatenings from the lenders. The Tribunal made a jurisdictional error when it did not follow Rule of Real Risk Tests of persecution and harm.
There is nothing in the material before the Court and nothing in the Applicant’s submissions to support even an arguable claim of jurisdictional error on any of the bases contended for in this ground. There is no evidence to suggest that the Tribunal misunderstood or misapplied the criteria for the grant of a protection visa, including the complementary protection criterion. It set out the statutory criteria, outlined the meaning of persecution, and considered the Applicant’s claims and evidence against the applicable criteria.
Insofar as the Applicant claims that the Tribunal made its decision on assumption and probability, it is not clear what is meant. If this is intended to take issue with the Tribunal’s adverse credibility findings, credibility is a matter for the Tribunal (see Re Minister for Immigration and Multicultural Affairs; Ex parteDurairajasingham (2000) 74 ALJR 405; [2000] HCA 1). The Tribunal’s findings in that respect were open to it on the material before it for the reasons which it gave. There is certainly nothing in the material before the Court to support any claim of illogicality or irrationality such as to establish jurisdictional error (see Minister for Immigration and Citizenship v SZMDS (2010) CLR 611; [2010] HCA 16), if this is what the Applicant intended to raise. Nor is there anything to support any claim that the Tribunal’s reasons were confused in such a manner as to be indicative of jurisdictional error.
The Tribunal considered the Applicant’s claims about the money lender. Having rejected those claims, it was not then necessary for it to go on to consider the extent of any danger to the Applicant. Nor is there any substance in the general claim that the Tribunal ignored the rules of procedural fairness. Although the application was not framed in those terms, there is nothing to indicate any failure by the Tribunal to comply with the procedural requirements in Division 4 of Part 7 (including s.424A) of the Act. I note that the documentary material referred to about the Applicant’s skilled visa application by the Tribunal was not such as to undermine the Applicant’s claim (see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26), and was used to accept aspects of his claims about his background. In this respect it was not information within s.424A(1). Beyond this, information about the Applicant’s first protection visa application and his skilled visa application and litigation history was, on the Tribunal’s account of the hearing, information that the Applicant gave to the Tribunal orally at the hearing and would thus be within the exception in s.424A(3) if it amounted to information within s.424A(1).
There is no substance in ground two in the Amended Application.
In submissions, the First Respondent treated the last paragraph of the grounds as a separate ground. I have considered it as such and also as part of the particulars to ground two. The Applicant claimed the Tribunal formed “the above opinion” based on limited information about the possible harm to him. This claim would appear to relate back to the earlier part of the particulars to ground two in which the Applicant claimed that the Tribunal did not give consideration of the danger to his life from the money lenders.
Such claim seeks impermissible merits review. The Tribunal considered the Applicant’s claims in this and other respects but, on the basis of its adverse credibility finding, was not satisfied that there was any basis for the Applicant’s claim to fear persecution.
The Applicant also claimed the Tribunal ignored all other independent information and came to the conclusion that the Applicant and persons like him had no fear of persecution and harm. The Applicant has not provided particulars as to what information the Tribunal allegedly ignored. In any event, as indicated, the Tribunal rejected the Applicant’s claims as fabricated and hence it was not necessary for it to consider the situation of persons whose claims about events in India were accepted.
Finally, the Applicant claimed generally that the Tribunal had misconstrued the facts. There are no particulars and there is nothing in the material before the Court to support such a claim. Whether seen as part of ground two or as a separate ground this part of the grounds has no substance. No arguable case of jurisdictional error has been established on any of the bases contended for in the Amended Application.
In his affidavit the Applicant claimed the Tribunal failed to assess his fear of harm and misapplied the law. The Tribunal reasons do not disclose any arguable basis for such a claim. The Tribunal assessed the Applicant’s claim to fear harm and there is nothing to establish any misapplication of the law. The fact that it did not accept the Applicant’s claims does not establish jurisdictional error.
It was also asserted that the Tribunal failed to properly assess the Applicant’s claims and “became biased due to misunderstanding the evidence”, and that this affected the matters considered and not considered by the Tribunal. The Applicant has not provided any explanation as to what evidence was said to be misunderstood. There is nothing in the material to support such a claim. Insofar as the Applicant seeks merits review, merits review is not available in this Court. Nor is there anything in the material before the Court to support any claim of actual or apprehended bias if this is what was intended (see Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28). The claim has not been clearly made. It is a rare and exceptional case in which bias will be established on the Tribunal decision alone (see SZHVL v Minister for Immigration and Citizenship [2008] FCA 356; SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668). This is not a case in which even an arguable case is apparent on the material before the Court. There is nothing in the Tribunal’s decision record to suggest that it approached the review with anything other than an open mind or that it would be so perceived from the perspective of the appropriately informed lay observer.
The Applicant’s contention in oral submissions that the Tribunal decision was not fair is not indicative of an arguable case of jurisdictional error. The Applicant’s disagreement with the Tribunal’s findings is not a basis on which his application for review is in any way arguable. Insofar as he reiterated that the Tribunal failed to consider his claims or his information, that has not been made out. Nor has even an arguable case in that respect been established on the material before the Court. Insofar as the Applicant said that the Tribunal listened to him, but did not “consider” his claims or part of his claims, it appears that he seeks impermissible merits review. There is nothing in the material before the Court to support any claim that the Tribunal failed to consider any aspect of the Applicant’s claims in a manner constituting jurisdictional error.
The Applicant has not established an arguable case in the principal proceedings or sufficient merit having regard to all the circumstances, including his explanation for delay based on his sinus condition and medication, such as to satisfy me that it is in the interests of the administration of justice to set aside the orders made on 30 August 2013. In these circumstances, the Application in a Case filed on 6 September 2013 should be dismissed.
The Applicant has been unsuccessful and the Minister seeks that he pay the costs of the Application in a Case in the sum of $2,000. That is less than the amount provided for in the Schedule to the Rules in relation to a proceeding concluded at or before an interlocutory hearing. The Applicant told the Court that it was too much and that he did not have money. However I am not persuaded that it is “too much”. The amount sought is appropriate and reasonable in light of the nature of this and other similar matters. The Applicant’s lack of funds is not a reason for departing from the normal principle that an unsuccessful applicant should meet the costs of the First Respondent, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 14 October 2013
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