SZSYD v Minister for Immigration

Case •

[2014] FCCA 900

•

4 April 2014

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSYD v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 900
Catchwords:
MIGRATION – Application for review of decision of the Refugee Review Tribunal – no arguable case for the relief sought – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 65, 424A, 425, 476

Federal Circuit Court Rules 2001 (Cth)
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379
Minister for Immigration v Khawar [2002] HCA 14; 210 CLR 1; 187 ALR 574
Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1
MZ RAJ v Minister For Immigration And Multicultural And Indigenous Affairs [2004] FCA 1261
SZBBE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 264
Applicant: SZSYD
First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 1349 of 2013
Judgment of: Judge Nicholls
Hearing date: 4 April 2014
Date of Last Submission: 4 April 2014
Delivered at: Sydney
Delivered on: 4 April 2014

REPRESENTATION

Applicant: In Person
Appearing for the Respondents: Ms H Dejean
Solicitors for the Respondents: Australian Government Solicitor

ORDERS

  1. The title of the first respondent is amended to read “Minister for Immigration and Border Protection”.

  2. The application made on 17 June 2013 is dismissed.

  3. The applicant pay the first respondent’s costs set in the amount of $6,000.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1349 of 2013

SZSYD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

  1. I have before me today an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 17 June 2013 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal) made on 21 May 2013 which affirmed the decision of the delegate of the first respondent to refuse a protection visa to the applicant.

Background

  1. Before the Court is a bundle of relevant documents filed by the Minister (“the Court Book” – “CB”). The following relevant background can be derived from these documents. 

  2. The applicant is a citizen of India who arrived in Australia in February 2008 as a student (CB 3 and CB 31). The visa that he held at that time expired in September 2008 (CB 70). After a number of departures from and subsequent arrivals in Australia, he ultimately remained in Australia without a visa. In April 2011, the applicant was taken into “Immigration Detention”. In May 2011, he was released from detention after having been granted a “Criminal Justice Visa” (“CJV”). That visa was subsequently cancelled on 19 July 2012 (see variously CB 55, CB 70 and CB 103).

  3. The applicant applied for a protection visa on 6 July 2012 (CB 1 to CB 23). He claimed that he had been granted the CJV to give evidence against someone he described as an “accused murderer” in Australia. The applicant claimed that that case was ongoing as at 6 July 2012. Further, that those accused of the murder had made various threats towards him and his family in India (CB 7). This included that they would be killed by the “accused murderer’s” family, who were said to be influential people in India (CB 7 and CB 8). It appears from his protection visa application that there were three people who had been variously charged in relation to the particular incident in Australia that led to his being given a CJV. 

  4. The applicant did not attend at an interview arranged with the Minister’s delegate. Ultimately, the delegate found the applicant’s written claims to be vague and unsubstantiated and the application for the visa was refused (CB 74 and CB 78).

The Tribunal

  1. The applicant applied for review of the delegate’s decision to the Tribunal on 1 November 2012 (CB 85 to CB 90). He appeared at a hearing before the Tribunal on 10 April 2013 (CB 113). I should note, relevant to some of the grounds the applicant has put before the Court, that despite opportunity provided by orders made at the first Court date, the applicant has not provided any evidence to challenge what the Tribunal says occurred at the hearing. In particular, with reference to what the applicant now says otherwise occurred at the Tribunal hearing.

  2. By letter dated 16 April 2013, the Tribunal wrote to the applicant inviting his comments, or response to, certain information that it said would be the reason, or a part of the reason, for affirming the delegate’s decision (CB 116 to CB 117). In essence, this information was contained in a media report relating to the criminal proceedings referred to above, and the disposition of the prosecution of three persons who were charged in connection with that criminal proceedings. One of these persons, who it appears was subsequently acquitted, was the person in respect of whom the applicant had assisted the police in Australia.

  3. In light of the applicant’s grounds put before the Court, it is important to note the following matters referred to by the Tribunal as having been discussed at the hearing.  The Tribunal reports that the applicant told it that, he had not received any threats ([25] at CB 124). Further, “that his family did not tell him anything”, therefore, they did not confirm to him that they had received any threats, as had been claimed in his written protection visa application ([26] at CB 124).  The applicant also explained to the Tribunal that the protection visa application had been completed “with the help of friends who added some lines” ([25] at CB 124).

  4. The Minister has filed written submissions in these proceedings. In my view the report in the Minister’s submissions of the Tribunal’s reasoning and conclusions is a fair reading of the Tribunal’s decision record and I adopt that part of the Minister’s written submissions for the purposes of this judgment ([12] – [13] of the Minister’s written submissions):

    “[12] The Tribunal relevantly reasoned and concluded as follows:

    a. The claims made in the PV application are false. The Tribunal did not accept that the accused murderer had threatened either the applicant or his family in India: RD 124 at [27]

    b. The Tribunal was satisfied that the murder case was not ongoing, based on the press report and the applicant’s own evidence that his criminal justice visa was cancelled: RD 125 at [32]

    c. The report that the person identified by the applicant had been acquitted was evidence that he had been released. The applicant had not received any threat since the release, and there was no claim that the applicant was scared of either of the two accused who pleaded guilty: RD 125 at [35]

    d. The applicant has lived in the same house and worked in the city where the murder occurred, without receiving any threats: RD 126 at [37]

    e. The reasons given for applying for a PV were his job responsibilities and not a fear of what the accused might do to him: RD 126 at [41]

    f. The applicant’s link to the criminal case was remote. He was not in fact a witness, did not give evidence in court, and there were 99 other witnesses in the case. The accused was acquitted and released. The Tribunal was satisfied that there was no real chance the applicant would be targeted by the accused or the accused’s family as claimed for reasons of revenge or for any other reason: RD126-127

    [13] In considering the complementary protection provisions, the Tribunal found that, for reasons previously given, there were not substantial grounds for believing that as a necessary and foreseeable consequence of removal from Australia, there was a real risk the applicant would suffer significant harm on return to India: RD 127 at [47].

Before the Court

  1. The grounds of the application to the Court made on 17 June 2013 are in the following terms:

    “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 applicant who had been under immense and intimidating pressure from accused killer.

    3. The Tribunal failed to ask a question that it was, in the circumstances of this case, legally required to ask whether the Indian authorities provide a standard of protection comparable with international standards.”

  2. For the sake of completeness, as reminded by the Minister today, I also note [2] of the applicant’s affidavit that he filed at the time of making his application to the Court on 17 June 2013.  The applicant says there:

    “I left India because of persecution and I fear that the persecution would continue if I have to return back to India…”

  3. Before the Court today the applicant appeared in person. He was assisted by an interpreter in the Punjabi language. Ms H Dejean appeared for the Minister.

  4. The grounds of the application remain unamended before the Court. This is despite the opportunity that was given to the applicant in July of last year, when I made orders for the conduct of the applicant’s case before the Court, to file any further amended application or written submissions. The grounds are formulaic and general, and remain unexplained. They lack particularity and, it must be said, that, in large part they are expressed in terms similar to grounds pleaded in a number of other cases of this type seen before this Court.

  5. I should also note that the matter raised in the applicant’s affidavit (see above at [12]) is merely a repeat of his general claim made to the Tribunal that he feared “persecution” in India if he were to return there. That does not assist the applicant in revealing jurisdictional error on the part of the Tribunal.  The Tribunal plainly understood that this was the general complaint that the applicant was making. It addressed the applicant’s claims in this regard. It made certain findings of fact on which it based its conclusion that the applicant was not a person who had a well-founded fear of persecution if he were to return to India.

  6. In circumstances where the Tribunal’s findings were reasonably open to it on what was before it, and noting that the Tribunal gave reasons probative of the material that had been put before it, no legal error is revealed. 

  7. When asked whether he had anything to say to the Court today, the applicant said that he had “nothing” to say. I drew his attention to the grounds of the application and gave the applicant the opportunity to speak directly to those grounds. The applicant merely stated that the Indian Government would not provide protection to him. I saw that as being a matter that arises from, or falls within, ground three of the application [see further below]. 

Consideration

  1. Ground one of the application, at best for the applicant, may be seen as some complaint that it was not open to the Tribunal to find that it could not reach the requisite level of satisfaction, such that the protection visa must be granted to him. Given the reference in the ground to reasonable satisfaction, it can only be assumed that this is a reference to s.65 of the Act and, in context, s.36(2) of the Act (see SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225, NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 and Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).

  2. Ground two, again, at best for the applicant, can only be seen as a challenge to the Tribunal’s finding that he was not under threat from the accused person against whom he gave a statement to the police in Australia.

  3. The following relates to both grounds. First, there is no particularity as to what part of the Act the Tribunal was said to have breached as asserted at ground one, nor is any such breach apparent on the material that is before the Court.

  4. Second, the Tribunal’s letter dated 16 April 2012, to which I referred earlier, was sent to the applicant plainly pursuant to s.424A(1) of the Act. It concerned the media report to which I made earlier reference. In the circumstances presented, the letter complied with all of the relevant statutory requirements.

  5. Third, I note that the applicant was invited to a hearing pursuant to s.425 of the Act. He was given the opportunity to give his evidence. The issues that can be said to be dispositive of the review (with reference to SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592) were raised at the hearing. I note again, that the only account before the Court of what occurred at the hearing is contained in the Tribunal’s references in its decision record.

  6. It must be said that both grounds ignore the fact that the applicant gave evidence to the Tribunal that the claim that he was under threat was “not true” (see [24] ‑ [27] at CB 124).  In these circumstances, it is difficult to see how the Tribunal can be said, as the applicant now generally asserts, to have failed to consider his claim of being under “pressure” from the accused killer. On the evidence before it, it was plainly and reasonably open to the Tribunal to find that the claims, as had been initially presented, “were false” ([27] at CB 124).

  7. It was also reasonably open to the Tribunal to reject the applicant’s subsequent claims that he had achieved “fame” because of his statement to the police, and that there were “consequences” as the result of having achieved this status ([29] at CB 125 and [42] at CB 126). The Tribunal, it must be said, gave cogent reasons probative of the evidence before it as to why this would not lead to “serious” or “significant” harm if the applicant were to return to India.

  8. As grounds one and two are expressed, and in the absence of any particularity and any further explanation from the applicant, it can only be said that the grounds seek impermissible merits review from the Court. As I explained to the applicant earlier, the Court cannot substitute its own findings as to the merits of his claims to protection (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259). Grounds one and two are not made out.

  9. Ground three states that the Tribunal failed to consider whether the Indian authorities provide an appropriate level of protection comparable with international standards.

  10. As the Minister submits, in my view correctly, given that the Tribunal found that the applicant did not have any subjective fear of persecution the question of state protection under the Refugees Convention did not arise in those circumstances (see Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 and Minister for Immigration v Khawar [2002] HCA 14; 210 CLR 1; 187 ALR 574). But even if it did, while it is the case that the High Court joint judgment in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1 provides a basis for the proposition that “international standards” may be used as a benchmark of adequate state protection levels, the Tribunal was not required to identify the “international standards” against which to assess the relevant state’s capacity in relation to a claimed fear of persecution, as in this case, by non-state agents (the “accused murderer’s” family) (see MZ RAJ v Minister For Immigration And Multicultural And Indigenous Affairs [2004] FCA 1261 at [26] and SZBBE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 264). Ground three also is not made out.

  11. I should note, as I said earlier, I adopted the Minister’s representation of the Tribunal’s findings, and its conclusion for the purposes of this judgment. Therefore, I do not need to recite at length, separately or additionally, what the Tribunal reasoned and found in its decision record.

  12. Having regard, however, to what the Tribunal did give as the reasons for its decision, I cannot see that the Tribunal fell into any error in the exercise of its jurisdiction, such as to assist the applicant now. The Tribunal dealt with each of the applicant’s claims as they were presented, and as they were developed before it by the applicant.

  13. It dealt with the applicant’s relevant evidence and his various explanations. Its expression of, and subsequent application of, the relevant law was orthodox. It made findings of fact relevant, reasonable, and probative of the material before it. In light of those findings of fact, the Tribunal considered whether the applicant met either of the criteria for the grant of a protection visa as set out at s.36(2) of the Act. The Tribunal’s assessment and conclusion in relation to each of those criteria does not reveal any legal error such as to assist the applicant today.

Conclusion

  1. For the applicant to succeed today, the Court would, at the very least, need to find some jurisdictional error in the Tribunal’s decision. As no such error is apparent on what is before the Court, both in the application to the Court and what was said today in oral submissions, it is appropriate that the application made to the Court be dismissed. I will make that order accordingly. 

  2. It is also appropriate that an order for costs be made in this matter in the usual way. The applicant has, when given the opportunity, put nothing before the Court to argue against the making of the order.  Nor can I see any other circumstances such as not to make the order.  As to the amount, I note that it is below the amount set out in the relevant Schedule to the Federal Circuit Court Rules 2001 (Cth), commensurate with an application of this type having reached a final hearing. I am guided by that. However, I am otherwise satisfied that the amount sought is a reasonable amount in all the circumstances.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  5 May 2014

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