SZSTD v Minister for Immigration & Border Protection

[2013] FCCA 2071

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSTD v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2013] FCCA 2071

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 91R, 411, 422B, 424A, 425, 474
Migration Regulations 1994 (Cth) reg.2.01.

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263
SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant: SZSTD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 725 of 2013

Judgment of: Judge Emmett

Hearing date: 4 December 2013

Date of Last Submission: 4 December 2013

Delivered at: Sydney

Delivered on: 4 December 2013

REPRESENTATION

The Applicant appeared in person with the assistance of a Punjabi interpreter

Counsel for the Respondent: Mr Tim Reilly

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 725 of 2013

SZSTD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal, dated 19 March 2013 and handed down on 20 March 2013 (“the RRT”).

2. The applicant claims to be a citizen of the Republic of India and a follower of Dera Sacha Sauda (“DSS”) who fears harm from Sikhs in India.

3. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a protection visa, a summary of the decision of the delegate of the first respondent (“the Delegate”), and a summary of the RRT’s review and decision.

Background

1. The applicant arrived in Australia on 7 May 2011 having departed legally from New Delhi on a passport issued in his own name and a Student visa.

2. On 31 March 2012, the applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship under the Act (“the Department”).

3. On 31 August 2012, a delegate of the Department refused the applicant’s application for a protection visa (“the Delegate”).

4. On 9 October 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.

5. On 20 March 2013, the RRT affirmed the decision of the Delegate not to grant a protection visa.

6. On 9 April 2013, the applicant filed an application in this Court seeking judicial review of the RRT’s decision.

Legislative framework

1. Pursuant to section 65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

3. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

4. Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.

5. Section 36(2)(aa) of the Act provides that:

   “(2)  A criterion for a protection visa is that the Applicant for the visa is:

   (aa)  a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”

6. Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.

7. The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.424A and 425, which provide that:

   “424A  Information and invitation given in writing by Tribunal

   (1)  Subject to subsections (2A) and (3), the Tribunal must:

   (a)  give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.

   425  Tribunal must invite Applicant to appear

   (1)  The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

8. Section 424AA of the Act permits the RRT to give orally to an applicant clear particulars of any information that the RRT considers would be the reason or part of the reason for affirming the decision under review. The RRT must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The RRT must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.

9. Under s.474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

10. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision. (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The applicant’s application for a protection visa

1. The applicant provided a statement in support of his protection visa application in which he claims: 

   a)The applicant is a devotee of the guru Ram Rahim Singh, who is the spiritual leader of DSS.

   b)In 2007, there were disputes between Ram Rahim Singh and his followers and followers of the Sikh religion, in which the applicant was involved and was threatened. On one occasion the applicant was assaulted and “they tried to also kill me” but he managed to escape.

   c)On another occasion in 2007, the applicant was identified as a follower of DSS by a particular “locket” that followers wear. This identification led to an assault and death threats.

   d)During 2008, the Government of Punjab persecuted followers of DSS and gaoled them. The applicant was gaoled for his beliefs and was beaten whilst in gaol.

   e)After being gaoled, the applicant’s family arranged for him and his wife to leave India for Australia, travelling on his wife’s student visa.

   f)During 2009 in Australia, after a period of unemployment, he and his wife became estranged.

   g)On 6 March 2011, the applicant returned to India.

   h)On 7 May 2011, after the applicant was harassed and threatened again by “Sikh boys,” the applicant returned to Australia again travelling on his estranged wife’s student visa.

   i)In late 2011, the applicant’s estranged wife finished her studies and the student visa expired. The applicant was unaware that the visa had expired.

   j)In early 2012, Australian Immigration Police detained the applicant as an unlawful non-citizen. The applicant does not know the whereabouts of his wife.

   k)On 31 March 2012, the applicant lodged an application for a Protection (Class XA) visa with the Department

   l)The applicant bases his application for a protection visa on his fear of assault in India by Sikhs due to the fact that he is a follower of DSS.

The Delegate’s decision

1. On 20 August 2012, the applicant attended an interview with the Delegate.

2. On 31 August 2012, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention and does not meet the alternative complementary protection criterion.

3. The Delegate was not satisfied that the applicant in a genuine or committed member of the DSS or a follower of its present leader Ram Rahim Singh. Accordingly, the Delegate did not accept that the applicant would be targeted by Sikhs in India or that the applicant would be persecuted by authorities in India for his religious beliefs.

4. The Delegate also found that protection would be available to the applicant in India if he was in any serious danger and that he could relocate if he was at serious risk of significant harm at the hands of others.

The RRT’s review and decision

1. On 9 October 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.

2. The applicant provided no further documents in support of his review application.

3. On 19 November 2012, the RRT wrote to the applicant informing him that the RRT had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 21 February 2013 to give oral evidence and present arguments.

4. On 21 February 2013, the applicant attended the RRT hearing and gave evidence.

5. The RRT noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.

6. The RRT explored the applicant’s claims with him in some detail at the hearing and put to him concerns it had about his evidence, noting his responses. The RRT put to the applicant country information for comment. The RRT identified with particularity the country information to which it had regard.

7. The RRT accepted that the applicant was a follower of DSS and considered his claims on that basis.

8. The RRT accepted that in 2007 there were hostilities between the Sikh community and the DSS.

9. The RRT also accepted the applicant’s evidence that he was not subjected to any harassment or harm during this period.

10. The RRT found it plausible that there were “scuffles” between DSS followers and members of Sikh groups. At the hearing, the applicant gave “unequivocal oral evidence” that he had never been physically assaulted by other Sikhs and referred only to an incident where he received a “graze”. The applicant also claimed that Sikhs stood and shouted at the house he shared with other DSS followers and also outside his parents’ house.

11. The RRT also accepted that the applicant was slapped two or three times by a police officer during a scuffle with some Sikhs in 2008. However, the applicant was released without charge.

12. The RRT was not satisfied that these incidents constituted serious harm to the applicant.

13. Based on evidence before it that the police provide protection to the followers of DSS, the RRT did not consider the applicant’s brief detention and being slapped as amounting to serious harm or to have occurred for a Convention reason.

14. In  making those findings, the RRT rejected the applicant’s inconsistent written claims about the extent of his past harm.

15. The RRT found the applicant’s account of the events that had occurred during his visit to India for two months in 2011 to be “internally inconsistent”. The RRT noted that as the applicant chose to return to the Punjab to “visit relatives and see if it was safe to return,” the applicant had some confidence that he was not at risk from Sikhs or the police, contrary to the claims he made to the RRT.

16. The RRT also pointed to other inconsistent evidence given by the applicant and ultimately rejected his claims of past harm in India.

17. The RRT was satisfied that the applicant would be able to return to India and freely practise his religion in the manner he wished.

18. Accordingly the RRT found that the applicant did not have a well-founded fear of persecution for a Convention reason if he returned to India and did not meet the definition of a refugee.

19. The RRT also considered whether the applicants met the alternative criteria for complementary protection under s.36(2)(aa) of the Act and concluded that they did not. The RRT found that there was no credible evidence before it that, as a follower of DSS, the applicant would be harmed and persecuted by Sikh groups and the local police. Accordingly, the RRT found that there are not substantial reasons for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, India, there is a real risk that the applicants would suffer significant harm.

20. Having determined that the applicant did not satisfy the refugee criterion in s.36(2)(a) of the Act, or the alternative criterion in s.36(2)(aa) of the Act, the RRT affirmed the decision under review.

The proceeding before this Court

1. The applicant was unrepresented before this Court, although had the assistance of a Punjabi interpreter. 

2. On 21 June 2013, the applicant attended a directions hearing before me. I explained to the applicant that this Court has no power to interfere with the decision of the RRT, unless the Court is satisfied that the RRT’s decision is affected by a mistake going to the jurisdiction of the RRT. I also explained to the applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court.

3. At the directions hearing, the applicant was also provided with a copy of the applicable costs schedule of the Court and I explained to the applicant the consequences that would flow to him if a costs order was made against him. Namely, that whilst any costs order remains unpaid, it becomes a debt to the Commonwealth of Australia. As such, the applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected.

4. The applicant confirmed that he wished to continue with the application for judicial review. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the RRT hearing, as well as submissions in support.

5. At the directions hearing, the applicant was referred to the Court’s Legal Advice Scheme for free legal advice. The applicant has participated in the Court’s Legal Advice Scheme and received free legal advice. The applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.

6. At the commencement of today’s hearing, the applicant confirmed that he has not filed any amended application, evidence or submissions in support of his application and that he has no further documents to present to the Court this morning in support of his application

7. The applicant confirmed that he relied on the grounds contained in his application filed on 9 April 2012 as follows:

   “1. The Tribunal made an Error of Law by not understanding or attempting to understand what a Sikh is.

   2. The Tribunal made an Error of Law by not understanding what the Dera Sacha Saud and what a follower of Dera Sacha Saud is.

   3. The Tribunal made an Error of Law by not understanding the differences between Dera Sacha Saud and Sikhs.

   4. The Tribunal made an Error of Law by not understanding that the followers of Ram Raheme Singh were also at risk as shown by the independent information.

   5. The Tribunal made an error of Law by not properly understanding the issue of the problem between the two groups and falsely claimed that followers were not at risk which was contrary to evidence.”

8. Each of the grounds was interpreted for the assistance of the applicant and the applicant was invited to make submissions in support of each of the grounds and in support of the application generally.

9. The applicant had nothing to say in support of any of the grounds, other than to say that he had told his story and that he did not wish to add anything. I endeavoured to explore with the applicant what he meant by his assertion that the RRT had failed to understand the matters referred to in the grounds of the application. However, the applicant confirmed that his complaints were no more than disagreements with findings made by the RRT.

10. The applicant was given a further opportunity to say whatever he wished in support of the grounds of his application, or in support of his application generally, following completion of the submissions by counsel of the first respondent. Again, the applicant had nothing to say either in response to anything said by counsel of the first respondent or in support of his application.

11. The applicant’s complaints, such as they are, invite merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] by North, Lander and Katzmann JJ:

    “It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”

12. All the grounds appear to complain about the RRT’s application of country information before it. However, the country information identified by the RRT plainly addressed each of the matters referred to in the grounds.

13. It is well settled that the country information to which the RRT has regard and the weight it gives that information is a matter for the RRT (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

1. There is nothing on the face of the RRT’s decision record to suggest either, that it misunderstood the country information to which it referred, or that it in any way misapplied that information in considering the applicant’s claims.

2. Ultimately, the RRT rejected the applicant’s claims on the basis of its evaluation of the applicant’s own evidence. The RRT noted the inconsistent evidence given by the applicant in his written claims and his oral evidence to the RRT.

3. The RRT accepted the applicant’s oral evidence before it that he was a DSS follower and that he may have been subjected to shouts outside his house by Sikhs, that he had received a graze during a scuffle with Sikhs, and that he was slapped two or three times by a police officer in 2008 during a scuffle. However, the RRT found that neither the graze, the shouts, nor the slaps constituted serious harm to the applicant. Further, the RRT found that the slaps from the police were not Convention based.

4. In particular, the RRT noted that the applicant’s evidence that a locket worn by him did not identify him as a follower of the DSS and that the only way a person would know that he was a follower of DSS was if he told them. The RRT accepted that the applicant might want to continue being a follower of the DSS if he were to return to India and was satisfied that he could do so freely.

5. The RRT did accept that there are outbreaks of violence by some Sikhs against followers of the DSS and found that the DSS leader, Ram Rahim Singh, is at serious risk of harm.

6. However, given that the applicant had not suffered serious harm in the past, and in light of country information that authorities in the Punjab do not withhold protection from DSS followers and arrest those who incite hostilities against them, the RRT found the chance that the applicant would be persecuted in the reasonably foreseeable future for a Convention reason to be remote.

7. The RRT’s findings were open to it on the materials and evidence before it, and for the reasons it gave. Credibility findings are a matter par excellence for the RRT (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

8. The function of the RRT is to respond to the case that the applicant advances (Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 405 per Kirby J; SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at [17] per Selway J; NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [58]-[60] per Black CJ, French and Selway JJ).

9. The RRT’s subjective appraisals, thought processes and determinations, defects, gaps or lack of detail in the applicant’s evidence are not information that the RRT is obliged to raise with the applicant. Neither is the RRT required to put to the applicant for comment the RRT’s disbelief of the applicant’s evidence arising from any inconsistencies found by the RRT to exist (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18] per Gleeson CJ, Gummow, Callinan Heydon and Crennan JJ; VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 at [14] per Finn and Stone JJ).

10. It is for an applicant to satisfy the RRT, being the relevant decision-maker, that the applicant meets the criteria for being a refugee. As stated in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]:

    “…The proceedings before the [RRT] are inquisitorial and the [RRT] is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The [RRT] must then decide whether that claim is made out.”

11. Similarly, it is for the applicant to satisfy the RRT that he is entitled to complementary protection pursuant to s.36(2)(aa) of the Act. The applicant did not advance any claims in relation to complementary protection beyond the claims he made in support of his claims to be entitled to protection under the Convention.

12. As stated above, the RRT found that there was no credible evidence before it that, as a follower of DSS, the applicant would be harmed and persecuted by Sikh groups and the local police. Accordingly, the RRT found that there are not substantial reasons for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, India, there is a real risk that the applicants would suffer significant harm.

13. As stated above, the RRT’s findings were open to it on the evidence before it and for the reasons it gave.

14. Section 65(1)(b) of the Act mandates that if the RRT, as the relevant decision-maker, is not satisfied that the applicant meets the criteria for a protection visa, either under the Convention in s.36(2)(a) of the Act, or under the complementary protection criterion in s.26(2)(aa) of the Act, then the applicant must be refused a protection visa.

15. The applicant did not identify any error capable of amounting to a jurisdictional error on the part of the RRT and none is apparent on the face of the RRT’s decision record.

16. Accordingly, none of the grounds of the applicant’s application are made out.

Conclusion

1. A fair reading of the RRT’s decision record makes clear that the RRT understood the claims being made by the applicant; explored those claims with the applicant at a hearing. The RRT put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The RRT identified independent country information to which it had regard. The RRT also put to the applicant independent country information before it and invited the applicant to comment upon it.

2. The RRT then made findings based on the evidence and material before it. Those findings of fact were open to the RRT on the evidence and material before it and for the reasons it gave. A fair reading of the RRT’s decision record makes clear that the RRT reached conclusions based on the findings made by it and to which it applied the correct law.

3. In the circumstances, the RRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The RRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  4 December 2013