SZSTT v Minister for Immigration

[2013] FCCA 2136

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSTT v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2136

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it failed to comply with s.424A of the Migration Act 1958, failed to make enquiries and discouraged the applicant from placing evidence before it.

Legislation:

Migration Act 1958, ss.36, 424A, 424AA, 474

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190

Applicant: SZSTT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 803 of 2013

Judgment of: Judge Cameron

Hearing date: 14 November 2013

Date of Last Submission: 14 November 2013

Delivered at: Sydney

Delivered on: 14 November 2013

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs, fixed in the amount of $6,646.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 803 of 2013

SZSTT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of India who arrived in Australia on 27 August 2008 as the holder of a student dependent visa.  On 4 May 2012 he lodged an application for a protection visa alleging that he feared persecution in India because of his political opinion.  On 9 August 2012 the applicant’s application was refused by a delegate of the first respondent.  The applicant then applied to the second respondent for a review of that departmental decision.  The applicant was unsuccessful before the Tribunal and has applied to this court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Background facts

1. The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-12 of the Tribunal’s decision which I will summarise as relevant.

2. The applicant made the following claims in his protection visa application:

   a)he left India because he was a member of the All India Sikh Student Federation and his father was involved in the Khalistan movement.  He had been followed by government authorities and interrogated and tortured by the intelligence branch;

   b)he feared returning to India because he had been involved with the Sikh Student Federation and the Hindu Nationalist Party had accused him of being a foreign agent;

   c)the BJP, the RSS and BHP would try to harm him because of his association with the Sikh movement; and

   d)the police could not protect him.  He had been tortured and interrogated by the police in the past.

3. The applicant made the following claims at a Tribunal hearing on 8 March 2013: 

   a)the main reason he did not want to return to India was that his financial situation was weak.  The second one was that his father was involved in the Khalistan movement; 

   b)his father had been a member of the Khalistan movement in 1984 and had been arrested and beaten by the police.  When he was growing up the authorities had continued to arrest, question and torture his father.  The police had arrested him and his brother too.  His father’s last contact with the authorities was in 2000;

   c)in 2000 he was accused of being a member of the Sikh Student Federation and of having a weapon.  He was detained and beaten for a week.  He was released after his family gave money to the police;

   d)he had been a member of the Sikh Student Federation for a year and a half, commencing in 2000 when he started college.  He stopped attending college because his family told him to, after he had made mistakes in his second year, and after he was picked up by the police.  As a member he had educated people about the Sikh religion;

   e)in 2003 while he was going to a place of worship, he was stopped and his car was searched.  He had pictures of Sikh people in his car and when asked if he was a “true” Sikh, he said yes.  His friends were released, but he was detained;

   f)in 2006 or 2007 he witnessed a group of boys fighting and was falsely accused of being involved in the fight.  He was not detained, but had seen papers which accused him of many things.  Someone had sorted the issue out for him;

   g)on every occasion he was arrested he paid a bribe to be released;

   h)four or five months after his arrival in Australia his brother was poisoned and could no longer walk or talk.  The applicant then said that this occurred in June 2009 and that his brother had been arrested in December 2008 and in June 2009.  After first saying he did not know why his brother had been poisoned, the applicant later said that the police had asked about his, the applicant’s, whereabouts and guessed that he had gone to Pakistan so they took his brother instead.  His brother was found on the road, poisoned, presumably by the police.  His family had not provided him with all the details of the incident;

   i)he had not mentioned in his application his claim that his brother had been poisoned because he had been tense, could not work out what to do, had limited English skills and had been told by a friend that he could mention the claim at his departmental interview;

   j)his brother had told the police that he was in Australia and he feared that they would think that he was receiving training;

   k)he felt bad because his parents had sold their land in order to enable him to travel to Australia and as a result his brother was unable to get proper treatment;

   l)he obtained his passport in 2002 because his situation had not been good.  He travelled to Thailand and Cambodia in 2004 but did not stay there because he had not known anyone, had not had money and could not apply for protection in those countries.  He knew in 2004 that there was something called protection which could be applied for, but he had not known the details;

   m)in November 2010 his wife told him that his visa had been cancelled.  The applicant then said that his wife had told him of his visa cancellation in December 2011;

   n)he first knew that he could apply for a protection visa in January 2012;

   o)in January 2012 a friend took him to a lawyer, but that lawyer did not handle protection visa applications.  Prior to January 2012 he had never had contact with a migration agent; and

   p)he and his family had always lived on their family farm while in India.  His parents and brother continue to live there.

4. At the hearing the Tribunal put certain information to the applicant pursuant to s.424AA of the Act. Part of that information was that after the applicant’s student dependent visa was cancelled he had lodged an application for review with the Migration Review Tribunal (“MRT”) and in October 2010 had been represented by a migration agent during his MRT proceedings. The Tribunal noted that that information contradicted the applicant’s evidence to it, that he had never had a migration agent acting for him. The applicant’s response was that it was a “common thing”.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons:

   a)the Tribunal found that the applicant lacked credibility, that his claims were not true and that he had fabricated them in order to remain in Australia.  It found that he had given vague, changing and inconsistent evidence in relation to matters central to his claim.  The Tribunal also found that the applicant made new and significant claims at his hearing about which he was only able to provide vague and changing evidence and did not provide plausible explanations for not having made the claims earlier.  In this connection:

   i)the Tribunal noted that despite claiming that he left India because he feared persecution, the applicant had waited for four years following his arrival in Australia to seek protection.  It found, contrary to the applicant’s contention that he had not consulted a migration agent until January 2012, that he had in fact engaged a migration agent to represent him in 2010 in an application to the MRT.  The Tribunal found the applicant’s answers to its questions concerning why he had not inquired earlier about his immigration status evasive, vague and contradictory.  It also noted that the applicant had given evidence that he had known in 2004 that he could apply for protection in other countries.  The Tribunal found disingenuous the applicant’s evidence that he had not known until January 2012 that he could seek protection; 

   ii)the Tribunal noted that the applicant had claimed at his hearing that his main reason for not wanting to return to India was financial.  The Tribunal found that if the applicant had had a real fear of persecution when he left India, he would have mentioned that as his main fear about returning there as opposed to mentioning his financial and moral obligations to his family; 

   iii)the Tribunal noted that the applicant’s second stated reason for not wanting to return to India was that his father had been in the Khalistan movement and that he had not mentioned his claimed involvement in the Sikh Student Federation until later in its hearing.  The Tribunal did not accept the applicant’s explanation for his failure to mention that claim until after he was prompted, that he had not referred to it because it had been in his application form;

   iv)the Tribunal noted that the applicant gave vague and changing evidence about why his brother had been poisoned and considered that his evidence undermined his claim that his brother had been poisoned, deliberately or otherwise.  In this regard, it noted that although that was the most recent event which the applicant claimed caused him to fear harm, he had been unable to provide a reasonable and unchanging account about why it happened, gave inconsistent evidence about when it happened and had not raised the claim in his application.  The Tribunal did not accept the applicant’s explanation that his family had wanted to shield him and found that, given his reliance on it for his protection claims, if the event had occurred, he would have known more about it.  It also did not accept his explanations for failing to raise the claim earlier;

   v)the Tribunal noted in the applicant’s evidence that he and his family had continued to live in the same house and in the same village.  It found that if the events claimed by the applicant had occurred and led him to fear persecution or harm such that he needed to leave India, it expected that he would not have continued to live in his home and village where he could have been easily located.  The Tribunal found the applicant’s claims about him and his family being targeted and harmed inconsistent with them having lived long-term on the family farm in their village; and

   vi)the Tribunal did not accept that the vagueness, changes and inconsistencies in the applicant’s evidence were explained by any nervousness he might have felt in having to attend a hearing;

   b)the Tribunal rejected all the applicant’s claims and did not accept that he had any reason to fear persecution or significant harm if he returned to India. 

Proceedings in this Court

1. In the application commencing these proceedings the applicant alleged:

   1.My point is that despite having attended in the hearing, it became imperative that, before the Tribunal member made up its mind dismiss the application, such information was required to be sent to me in written to make a comments, in order to fully compliance of s.424A as decided the majority judge of the High Court in SAAP.

   2.The Tribunal had no jurisdiction to make the said decision because its reasonable satisfaction was not arrived in accordance with the provisions of the Migration Act.

   3.The Tribunal’s decision was unjust and made without taking into account the full gravity of applicants circumstances and consequences of the claim.

   4.The Tribunal has failed to investigate the claim, specially the grounds of persecution in India.  Therefore the Tribunal decision dated on 19 March 2013 was a judicial error.

2. At the hearing of this application the applicant also submitted that the Tribunal had discouraged him from placing evidence before it.  Additionally, he appeared to challenge the Tribunal’s decision on the merits of his visa application.

Ground 1

1. The first allegation in the application appears to allege that the Tribunal should have alerted the applicant to its intention to dismiss his application so that he could have an opportunity to comment before it did so, citing s.424A of the Act in support of that proposition. Section 424A(1) provides:

   (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; and

   (b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c)     invite the applicant to comment on or respond to it.

2. That subsection refers to the provision of “information” and it has been settled for some years now that the word “information” does not include the Tribunal’s subjective appraisals, thought processes or determinations but refers instead to evidentiary material or documents: SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 at 1196 [18].

3. Alternatively, the applicant may have been referring to the information upon which the Tribunal based its decision. If so, it is necessary to observe that the obligation found in s.424A(1) is subject to the exceptions found in s.424A(3) which relevantly provides:

   (3)    This section does not apply to information:

   (a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

   (b)that the applicant gave for the purpose of the application for review; or

   (ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; …

4. With one exception, the information on which the Tribunal based its decision was information which fell within the matters referred to in that subsection. The exception was information associated with the applicant’s student dependent visa, that he had previously engaged a migration agent. The Tribunal put that information to the applicant pursuant to s.424AA of the Act, which had the effect of discharging of its s.424A(1) obligations in respect of it.

5. For those reasons, I find the Tribunal did not breach s.424A of the Act.

Ground 2

1. The second ground of the application was really no more than an unparticularised allegation of jurisdictional error. Absent any particulars, for instance identified provisions of the Act which the Tribunal had not observed, the allegation lacks meaningful substance. That being so, it fails to demonstrate any basis on which the Tribunal’s decision should be set aside.

Ground 3

1. The third ground of the application alleged that the Tribunal failed to consider all the applicant’s claims and whether he would suffer persecution or significant harm if he were to return to India.  The applicant did not identify what claims had been overlooked and it is not apparent that any were.  In this regard, after discussing the applicant’s claims and evidence in some detail, the Tribunal rejected those claims, also in some detail, in para.94 of its decision.  I am not persuaded that any claims were overlooked. 

2. Because the Tribunal rejected the applicant’s claims, it was unnecessary for it to consider whether the applicant might be persecuted were he to return to India.  Even so, it was required to consider whether his circumstances might enliven Australia’s complementary protection obligations.  And it did so, finding a lack of substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there was a real risk that he would suffer significant harm. 

3. Consequently, the third ground of the application is not made out.

Ground 4

1. The fourth ground of the application appears to assume that the Tribunal has a general obligation to undertake enquiries and investigations into issues raised in reviews before it.  That is not correct; the Tribunal has no such general obligation.  In certain very limited circumstances, a failure to enquire may amount to a failure to review and a constructive failure to exercise jurisdiction.  However, the facts of this case do not meet the demanding test whose satisfaction enlivens that duty. 

Submissions at Hearing

1. At the first court date in these proceedings the applicant was ordered to adduce any further evidence, in particular any transcript of the Tribunal hearing, by affidavit.  The applicant filed no further evidence following the making of that order.  In the circumstances, I am not persuaded that conduct by the Tribunal led the applicant to not adduce further evidence before it because it would be treated as suspect.  In any event, scepticism on the part of the Tribunal does not prove that it had a closed mind on the genuineness of the documents which might be produced by the applicant or that it would not have considered on its merits the genuineness of any document submitted by him.  For these reasons, no denial to the applicant of a proper hearing has been made out. 

2. To the extent that the applicant’s submissions at the hearing invited the Court to disagree with the Tribunal’s decision on the merits of his visa application, as indicated earlier in these reasons and to the applicant at the hearing of this application, the Court is not empowered to rehear the applicant’s visa application or to enquire into the merits of that application. 

3. Consequently, the matters raised by the applicant at the hearing of his application did not disclose a basis upon which the Tribunal’s decision should be set aside. 

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated. 

2. Consequently, the application will be dismissed. 

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  11 December 2013