SZSTL v Minister for Immigration & Border Protection

[2013] FCCA 1802

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSTL v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2013] FCCA 1802

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the applicant satisfied s.36(3) of the Migration Act 1958 (Cth) – whether the Refugee Review Tribunal was required to deal with the applicant’s protection claims where it found that the applicant did not satisfy s.36(3) of the Migration Act 1958 (Cth) – whether the Refugee Review Tribunal’s findings in relation to s.36(3) of the Migration Act 1958 (Cth) were open to it – no jurisdictional error – application dismissed.

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

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263
Abebe v Commonwealth of Australia (1999) 197 CLR 510
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
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39

Applicant: SZSTL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 774 of 2013

Judgment of: Judge Emmett

Hearing dates:

24 September 2013

5 November 2013

Date of Last Submission: 5 November 2013

Delivered at: Sydney

Delivered on: 5 November 2013

REPRESENTATION

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

Solicitors for the Respondents: Ms Nicola Johnson, Ms Sharon Sanghi (Sparke Helmore)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 774 of 2013

SZSTL

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 holds Malaysian citizenship and is of Indian Ethnicity

3. The issue in this case is whether the RRT properly considered whether it was not required to deal with the applicant’s protection claims where it found that the applicant did not satisfy the requirements in s.36(3) of the Act and whether its findings in relation to s.36(3) were open to it. These issues are considered below in the context of considering whether the RRT’s decision is affected by jurisdictional error.

4. 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 and 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 25 March 2012 having departed legally from Malaysia on a passport issued in his own name and a Visitor (UD/976 ETA) visa issued on 12 March 2012.

2. On 2 May 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 10 August 2012, the Delegate of the Department refused the applicant’s application for a protection visa.

4. On 11 September 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 15 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)(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.”

3. 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”).

4. 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.”

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

6. Section 36(3) of the Act states as follows:

   “(3)  Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.”

7. Section 36(4), (5) and (5A) of the Act provide qualifications in respect of s.36(3) of the Act:

   “(4)  However, subsection (3) does not apply in relation to a country in respect of which:

   (a)  the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or

   (b)  the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.

   (5)  Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that:

   (a)  the country will return the non-citizen to another country; and

   (b)  the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.

   (5A)  Also, subsection (3) does not apply in relation to a country if:

   (a)  the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and

   (b)  the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.”

8. 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.

9. 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 stated: 

   a)The applicant completed schooling in Malaysia in 1996. He attempted to find employment in a government department, but claims that he was unsuccessful due to his Indian ethnicity. He remained unemployed until 2000, when he started his own business.

   b)The applicant married an Indian national on 1 March 2005, sponsoring her to immigrate to Malaysia. The applicant and his wife had a daughter in 2007, who was born in India.

   c)At the beginning of 2011, a Malay gang named the ‘Sagal Gang’ asked for protection money. The applicant refused to pay, as he believed that yielding to the demands would result in further requests for protection money. The applicant went into hiding from the Sagal Gang’s members.

   d)The applicant travelled to India on 22 August 2011 and returned to Malaysia on 27 January 2012. During this period, the applicant claims that one of his employees was approached by members of the Sagal Gang on two occasions in search of the applicant.

   e)On 23 February 2012, three members of the Sagal Gang went to the applicant’s place of business and demanded 20,000 Ringgit. The applicant explained that he did not have that much money, and was assaulted. The applicant gave the Sagal Gang members what money he had in cash. He then reported the incident to police, who attended the scene but took no further action.

   f)Several other Indian business owners were extorted by Sagal Gang members on the same day. The business owners reported these incidents to the local police commander. The applicant claims that they all subsequently found out that the police were corrupt, receiving a share of the protection money paid to the Sagal Gang members in return for not taking action against them.

   g)The local business leaders called a one day strike to draw attention to their plight. The applicant claims he was contacted by the Sagal Gang’s leader, who threatened to kill him if he did not cease the strike.

   h)On 28 February 2012, the body of a Sagal Gang member was found in a road-side area, with multiple gunshot wounds. The applicant contends that this type of killing occurs “from time to time” and that the police are sometimes involved in the murder, but cover up their involvement.

   i)Also on the 28 February 2012, other Sagal Gang members came to the applicant’s shop and ransacked the premises. The gang members asked for the applicant’s address from his employees, but were given a false address, and then left the premises. The applicant’s employees then informed the applicant what had occurred.

   j)This incident resulted in the applicant deciding not only to abandon his business, but also to leave Malaysia.

   k)The applicant feared that he may be killed by members of the Sagal Gang if he returned to Malaysia.

The Delegate’s decision

1. On 8 August 2012, the applicant attended an interview with the Delegate.

2. On 10 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.

3. The Delegate had serious concerns about the veracity of the applicant’s claims in light of numerous inconsistencies that it found to exist in the applicant’s written claims and oral testimony.

4. The Delegate concluded that it had “grave doubts about the overall trustworthiness of [the applicant’s] testimony”.

The RRT’s review and decision

1. On 11 September 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.

2. On 19 December 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 29 January 2013 to give oral evidence and present arguments.

3. On 29 January 2013, the applicant attended the RRT hearing and gave evidence.

4. The RRT summarised the applicant’s written claims and claims made before the Delegate.

5. The RRT noted that it asked the applicant about staying in India long term and noted the applicant’s response that India is too hot and that there were cultural differences. The RRT noted that the applicant acknowledged that he could stay longer in India because he was married to an Indian national.

6. The RRT informed the applicant that it would be investigating the option of the applicant being able to enter and reside in India and that if the RRT found that he had a right to enter and reside in India, he would not be offered protection in Australia. The RRT asked the applicant if he wished to comment on that information and noted that the applicant responded that he did not wish to live in India.

7. The RRT also put to the applicant country information before it that disclosed that the applicant could enter and reside in India, either as a spouse of an Indian national or because his grandparents or parents held Indian citizenship. The RRT asked the applicant if he had applied for a Person of Indian Origin card in India and noted the applicant’s response that he could not live in India or in Malaysia, but was happy in Australia.

8. Ultimately, the RRT found that the applicant is married to an Indian national and that the applicant’s grandparents were Indian. Therefore, the RRT found that the applicant has a presently existing right to enter and reside in India and that the applicant has not taken all possible steps to avail himself of that right. The RRT referred to the country information upon which it relied in making that finding.

9. In light of that finding, the RRT found that the applicant had not satisfied the requirements of s.36(3) of the Act, and that there was no evidence that he met the qualifications in ss.36(4), (5) and (5A) of the Act.

10. The RRT affirmed the decision under review having regard to s.36(3) of the Act. In the circumstances, the RRT noted that it did not consider the application under the refugee criterion in s.36(2)(a) or the complementary protection criterion in s.36(2)(aa) in relation to the applicant’s claim to have a well-founded fear of persecution in Malaysia for a Convention reason.

The proceeding before this Court

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

2. On 14 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. 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.

3. At the directions hearing, the applicant was referred to the Court’s Legal Advice Scheme for free legal advice. A letter was received from the panel advisor, dated 25 July 2013, and marked Exhibit 2R. Exhibit 2R listed the unsuccessful attempts by the panel advisor to contact the applicant resulting in the inability of the panel advisor to provide the applicant with advice. In the circumstances, I am satisfied that the applicant has had every opportunity to participate in the legal advice scheme and for whatever reason has chosen not to do so. I note that 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 at the directions hearing.

4. At the hearing on 24 September 2013, 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.

5. The applicant confirmed that he relied on the grounds contained in an application filed on 15 April 2013, as follows:

   “1. 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.

   2. 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 applicants who had been under immense and intimidating pressure from Malaysian Ganag [sic].

   3. The Tribunal exceeds is jurisdictional or constrictively failed to exercise its jurisdiction or denied my procedural fairness in that the Tribunal to Investigate my genuine claims with the requirements of the Migration Act 1958.

   4. The Tribunal fell into jurisdictional error in that it did not consider the applicant’s claim that he could safely relocate in another country. The Tribunal decision was fundamentally influenced on the basis of that the applicant could enter and reside in India.”

6. At the conclusion of the hearing, the Court raised a question as to whether country information relied upon by the RRT supported its finding that the applicant has a presently existing and legally enforceable right to enter and reside in India (see: Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91). The applicant was given leave to file and serve an amended application and any further evidence and submissions in support by 25 October 2013 and was granted a further opportunity to access the Court’s Legal Advice Scheme. The first respondent was directed to file and serve any further evidence and submissions by 1 November 2013.

7. On 24 October 2013, the applicant filed an amended application identifying the following ground:

   “1. The Tribunal’s decision was affected by judicial error in that the Tribunal failed to correctly apply the test in s.36(2B(a) [sic] of the Migration Act 1958.

   Particulars:

   Having been satisfied that there was a risk real risk [sic] of significant harm to the Applicant in Malaysia, Tribunal was required to consider whether it was reasonable for him to relocate another country where there would not be a real risk that he would suffer such harm. The Tribunal failed to consider whether or not a Malaysian Muslim in India was a risk of harm from radical Hindus, and not able to access effective protection.”

8. When the matter returned to Court this morning, the applicant confirmed that he relied only on the ground of the amended application. That ground was interpreted for the applicant and he was invited to say whatever he wished in support. The applicant confirmed that he had not filed any further evidence or submissions in support of his application.

9. The first respondent read the affidavit of Sharon Manpreet Sangha, sworn 29 October 2013 and filed on 30 October 2013, annexing various extracts of independent country information in relation to the applicant’s right to reside in India.

1. The applicant told the Court this morning that if he went to India, he would be at risk of persecution by extremist Muslims. However, a fair reading of the applicant’s claims in support of his visa application, his interview with the Delegate and his hearing before the RRT made clear that the only reason ever given by the applicant as to why he did not wish to go to India was because of the climate and cultural differences, and that he felt happy in Australia.

2. On the last occasion the applicant appeared before me on 24 September 2013, the applicant said that the situation in India did not suit him because he often got sick. He said he stayed in India for five months but found it very hot and the climate did not suit him.

3. Those statements do not give rise to a claim that squarely arose on the material before the RRT that the applicant feared persecution in India from Muslim extremists as asserted to the Court for the first time this morning. 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).

4. The RRT found that the applicant has a presently existing and legally enforceable right to enter and reside in India and referred to the country information upon which it relied in making that finding. In particular, the RRT found that the applicant could enter and reside as a person of Indian origin, either as a spouse of an Indian national and/or because his grandparents or parents held Indian citizenship. The RRT found that the applicant is married to an Indian national and that his grandparents were Indian. The evidence annexed to the affidavit of Ms Sangha attaches country information that confirms the RRT’s findings.

5. Further, the RRT found that the applicant had not taken all possible steps to avail himself of the right to enter and reside in India. As stated above, the RRT had asked the applicant if he had applied for a Person of Indian Origin card in India and noted the applicant’s unresponsive answer that he could not live in India or in Malaysia, but was happy in Australia.

6. In the circumstances, the RRT’s findings that the applicant has a right to  enter and reside in India and has not taken all possible steps to avail himself of that right, were open to it on the evidence and material before it and for the reasons it gave.

7. Having found that the applicant falls within s.36(3) of the Act, in that he is a non-citizen who has not taken all possible steps to avail himself of a right to enter and reside in India, the RRT considered the qualifications in ss.36(4), (5) and (5A) of the Act.

8. The RRT found that there was no evidence before it to suggest that the applicant has a well-founded fear of persecution for a Convention reason in India or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant availing himself of a right mentioned in s.36(3) of the Act, there would be a real risk that he will suffer significant harm in relation to India. In reaching that finding, the RRT referred to the applicant’s evidence that he entered and left India of his own accord because he did not like it. The RRT noted that the applicant did not report any harm, or fear of harm, in India.

9. Accordingly, the RRT also found that neither ss.36(5) or s.36(5A) of the Act applied to the applicant in light of the evidence before it and the claims made by the applicant.

10. Having found that the applicant failed to satisfy s.36(3) of the Act, the RRT correctly held that Australia does not have protection obligations to the applicant. Therefore, the RRT was correct in finding that it was not required to consider if the applicant’s protection visa application met the refugee criterion in s.36(2)(a) of the Act or the complementary protection criterion in s.36(2)(aa) of the Act in relation to the applicant’s claims to have a well-founded fear of persecution in Malaysia for a Convention related reason.

11. Whilst the applicant confirmed this morning that he no longer relied on the grounds of his initiating application, for completeness, those grounds are dealt with below.

12. At the hearing before the Court on 24 September 2013, the applicant made no relevant submission in support of any of the grounds and none of the grounds were supported by particulars, evidence or submissions. I do not understand any of those grounds to suggest a complaint beyond the ground in the amended application. In the circumstances, the complaints in the grounds of the initiating application are more in the nature of a disagreement with the findings and conclusions of the RRT.

13. In the circumstances, the grounds of the initiating application do not identify any jurisdictional error on the part of the RRT. The complaints made in those grounds 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).

14. 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.”

15. To the extent that Ground 3 of those initiating grounds suggests that the RRT should have investigated the applicant’s claims, there is no general obligation on a tribunal to investigate an applicant’s claims (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ in joint judgment).

16. The duty imposed on the RRT by the Act is a duty to review and not a duty to enquire (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

17. Accordingly, none of the grounds, either of the applicant’s initiating application or his amended 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; and, had regard to all material provided in support. The RRT put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The RRT also 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 sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  5 November 2013