SZSTT v Minister for Immigration and Border Protection

[2014] FCA 270

FEDERAL COURT OF AUSTRALIA

SZSTT v Minister for Immigration and Border Protection [2014] FCA 270

Citation:	SZSTT v Minister for Immigration and Border Protection [2014] FCA 270
Appeal from:	SZSTT v Minister for Immigration & Anor [2013] FCCA 2136
Parties:	SZSTT v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number(s):	NSD 2432 of 2013
Judge(s):	YATES J
Date of judgment:	28 March 2014
Catchwords:	MIGRATION – application for protection visa – whether error demonstrated in judgment of Federal Circuit Court dismissing application for judicial review
Legislation:	Migration Act 1958 (Cth) ss 36, 424A, 424AA
Cases cited:	SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
Date of hearing:	5 March 2014
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	32
Counsel for the Appellant:	The Appellant appeared in person through an interpreter
Solicitor for the Respondents:	Mr R Ray, Clayton Utz Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 2432 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZSTT
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	YATES J
DATE OF ORDER:	28 MARCH 2014
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 2432 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZSTT
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	YATES J
DATE:	28 MARCH 2014
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of the Federal Circuit Court of Australia (the Federal Circuit Court) given on 14 November 2013.

2. The Federal Circuit Court dismissed an application for judicial review in relation to a decision given on 18 March 2013 by the second respondent, the Refugee Review Tribunal (the Tribunal).  This decision affirmed a decision of the delegate of the Minister for Immigration and Border Protection (the Minister), not to grant the applicant a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

   Background

3. The appellant is an Indian citizen.  He was born in February 1979.  He is a Sikh.  He departed India legally on 26 August 2008 from Delhi airport.  He travelled on an Indian passport that had been issued on 12 July 2002 and was valid until 11 July 2012.  He entered Australia on 27 August 2008 holding a student visa which had been issued on 13 August 2008 and which was valid until 15 March 2013.  That visa was subsequently cancelled. 

4. Prior to his travel to Australia, the appellant travelled to Thailand and Cambodia for short visits in January 2004. 

5. The appellant applied for a protection visa on 4 May 2012.  In his application he claimed protection for the following reasons:

   ·He was a member of the All India Sikh Student Federation (AISSF).

   ·His father was involved with the Khalistan movement.

   ·He was followed by government authorities and interrogated by the intelligence branch in circumstances where he was blindfolded and tortured.

   ·He left India to avoid persecution.

   ·The Hindu Nationalist Party accused him of being a foreign agent.

   ·If he were returned to India, he feared that he would be harmed by the government as well as by others because of his association with the Sikh movement.

   ·He would not be protected by Indian police.  In the past, he has been tortured by the police under the guise of interrogation.

6. On 9 August 2012, the Minister’s delegate refused to grant the appellant a protection visa.  The appellant applied for a review of the delegate’s decision. 

   The Tribunal decision

7. The Tribunal considered that the appellant had made claims that it was unable to accept, on the basis of his lack of credibility.

8. By way of summary, the Tribunal found that the appellant:

   ·made a new and significant claim at the hearing (namely, that his brother had been poisoned by the police), about which he was only able to provide vague and changing evidence;

   ·provided an implausible reason for not having made this claim previously;

   ·seemed concerned about making money in Australia as opposed to fearing harm in India;

   ·made excuses to the Tribunal that were inconsistent with his actions in another Tribunal, and

   ·gave vague, changing and inconsistent evidence in relation to matters central to his claims.

9. The Tribunal considered that, in order to remain in Australia, the appellant had fabricated his protection visa claims and his responses to concerns that the Tribunal raised with him in that regard. 

10. Significantly, at the hearing, the appellant gave his main reason for not wanting to return to India as a financial one.  He explained that his parents had come up with plans to send him to Australia, including selling their land, and that he had been sending money back to India.  The Tribunal said:

    … [I]f, as claimed, in his protection visa application, the applicant had a real fear of persecution when he left (in 2008) from the authorities and other organisations, and if he had a continuing real fear of persecution or harm, he would have told the Tribunal that this was his main fear upon return, as opposed to referring to his financial/moral obligations towards his family. The Tribunal considers that this undermines his claim that he did indeed have a fear of persecution when he left India, and that he has a fear of persecution upon return.

11. The second reason given by the appellant for not wanting to return was that his father had been in the Khalistan movement in the 1980s.  The appellant did not mention his own claimed involvement in the AISSF until later.  The Tribunal said:

    … When the Tribunal noted that he had failed to mention this as a reason why he should not return, he said he didn’t refer to it because it was in his application form.  The Tribunal does not accept this explanation, noting that it had told him in the introduction that it was important to tell the Tribunal all the reasons why he did not want to return;  and the Tribunal had also specifically asked him for the reasons why he did not wish to return, yet he did not mention his claimed involvement in the AISSF/Sikh Student Federation.  The Tribunal considers that if he did fear harm because he had been a member of the AISSF/Sikh Student Federation, he would have told the Tribunal this when asked, and his failure to refer to it undermines his claims that he was a member of the AISSF/Sikh Student Federation, and that he fears harm for this reason.

12. The Tribunal commented on the appellant’s delay of almost four years in seeking protection after entering Australia, despite previously having engaged a migration agent in relation to an application for review lodged with the Migration Review Tribunal in 2010 concerning the decision to cancel his student visa.  When asked at the hearing whether he had previously engaged a migration agent, the appellant insisted that he had not done so prior to January 2012.  The Tribunal considered that this was a deliberate untruth. 

13. The Tribunal found that not only did this untruth undermine the appellant’s credibility, it also undermined his claim that he was unaware until January 2012 that he could lodge a protection visa application.

14. The Tribunal also commented on the appellant’s claim that his brother had been poisoned by the police, a matter which the applicant had not mentioned in his original application for a protection visa.  The Tribunal set out and analysed the appellant’s evidence on that matter, including his explanations for not mentioning the matter when making his original application.  The Tribunal said:

    … The Tribunal does not accept these explanations and considers that the applicant could have very easily mentioned that his brother had been poisoned in the application form, and also notes that the applicant had previously been through Tribunal proceedings (as put to him pursuant to s 424AA of the Act). For the same reasons, the Tribunal does not accept his other explanations (such as that he did not know what to do, and he only mentions things when he needs to).

15. There are other matters upon which the Tribunal commented.  It is not necessary to summarise them in these reasons.

16. The Tribunal was not satisfied that the appellant was a person in respect of whom Australia had protection obligations under the Refugees Convention. It concluded that the appellant did not satisfy the criterion set out in s 36(2)(a) of the Act.

17. Having concluded that the appellant did not meet the refugee criterion in s 36(2)(a), the Tribunal considered the alternative criterion in s 36(2)(aa). The Tribunal was not satisfied that the appellant was a person in respect of whom Australia had protection obligations under s 36(2)(aa) of the Act.

    The Federal Circuit Court judgment

18. In his application to show cause, filed in the Federal Circuit Court on 17 April 2013, the appellant raised four grounds: 

    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 s424A 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.

19. With respect to the first ground, the primary judge noted that the appellant appeared to be alleging that the Tribunal should have alerted him to its intention to dismiss his application so that he could have an opportunity to comment on it before the Tribunal did so. In this connection, the primary judge noted that the first ground raised the application of s 424A of the Act. The primary judge held, correctly, that the Tribunal’s obligation to provide information under s 424A does not include the Tribunal’s subjective appraisals, thought processes or determinations: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18].

20. The primary judge reasoned that if, alternatively, the appellant was seeking to refer to information upon which the Tribunal based its decision, the Tribunal’s obligations were subject to the exceptions found in s 424A(3) of the Act. The primary judge held that, with one exception, the information on which the Tribunal based its decision was information which fell within the matters referred to in s 424A(3). The exception was the information that the appellant had previously engaged a migration agent when lodging an application with the Migration Review Tribunal to review the decision to cancel his student visa. The primary judge correctly noted that this information had been put to the applicant pursuant to s 424AA of the Act, which had the effect of discharging the Tribunal’s obligations under s 424A(1) of the Act in respect of that information.

21. The primary judge concluded that the Tribunal did not breach s 424A of the Act. I can see no error in that conclusion.

22. With respect to the second ground, the primary judge noted that it was no more than an unparticularised allegation of jurisdictional error.  Absent any particulars, the allegation lacked meaningful substance.  I can see no error in that conclusion.

23. With respect to the third ground, the primary judge noted that the appellant had not identified any claims that had been overlooked.  Moreover, his Honour concluded that it was not apparent that any claims had been overlooked.  His Honour concluded, therefore, that this ground had not been made out.  I can see no error in that conclusion.

24. With respect to the fourth ground, the primary judge noted that it appeared to assume that the Tribunal had a general obligation to undertake inquiries and investigations into issues raised before it.  The primary judge noted, correctly, that no such general obligation exists and that it is only in limited circumstances that a failure to inquire can amount to a constructive failure to exercise jurisdiction.  His Honour concluded that the facts of the present case did not impose an obligation on the Tribunal to undertake further inquiries.  I can see no error in that conclusion.

    The appeal

25. The appellant’s notice of appeal filed in this Court on 4 December 2013 contains two grounds:

    1.The Hon. Judge failed to consider that the Tribunal’s decision was effected by the jurisdictional error in that the Tribunal failed to correctly apply the test in s36(2) of the Migration Act 1958.

    2.The Federal Circuit Judge failed to consider that the Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction“ was not arrived in accordance with the requirements of the Migration Act.

26. It is apparent that these grounds merely make generalised allegations of error on the part of the Federal Circuit Court. 

27. The appellant was unrepresented at the appeal hearing, as he was at the hearing before the Federal Circuit Court.  He had the assistance of an interpreter. The appellant had filed no written outline of submissions.

28. I invited the appellant to address me on his first ground of appeal.  His response was brief.  He said that his brother was sick and that he could get documents to show that fact.  I explained to the appellant that it is not the task of the Court in an appeal to make its own findings of fact.  I explained that the task of the Court is to determine whether there is error in the judgment from which the appellant had appealed.

29. I invited the appellant to address me on his second ground of appeal.  His response was that he had nothing to say. 

30. The Minister filed a written outline of submissions and relied on those submissions without further elaboration at the hearing.  The Minister submitted that the grounds of appeal, in truth, seek only to cavil with the merits of the Tribunal’s decision.  I accept this submission, especially given the appellant’s statement that his brother was sick and that he could obtain documents to show that fact.  It is certainly clear that the primary judge did not fail to consider the Tribunal’s decision with respect to the grounds of review that had been raised.  The appellant’s difficulty is that, as a matter of fact, the Tribunal simply did not accept his claims.  It advanced sound reasons for rejecting them.  The decision to which the Tribunal came was certainly open to it on the materials before it, as recorded in its decision record.

31. In the circumstances, the appellant has not demonstrated error in the judgment of the Federal Circuit Court.  Moreover, he has not established that the Tribunal’s decision was affected by jurisdictional error.

    Disposition

32. The appeal should be dismissed with costs.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates.

Associate:

Dated:       26 March 2014