SZTAO v Minister for Immigration and Border Protection

[2014] FCA 232

FEDERAL COURT OF AUSTRALIA

SZTAO v Minister for Immigration and Border Protection

[2014] FCA 232

Citation:	SZTAO v Minister for Immigration and Border Protection [2014] FCA 232
Appeal from:	SZTAO V Minister for Immigration [2013] FCCA 1724
Parties:	SZTAO v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	NSD 2287 of 2013
Judge:	RARES J
Date of judgment:	26 February 2014
Legislation:	Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth)
Cases cited:	Bienstein v Bienstein (2003) 195 ALR 225 applied SZTAO v Minister for Immigration [2013] FCCA 1724 referred to
Date of hearing:	26 February 2014
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	18
Counsel for the Applicant:	The appellant appeared by telephone
Counsel for the First Respondent:	Mr P Knowles
Solicitor for the First Respondent:	Sparke Helmore

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 2287 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZTAO
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE OF ORDER:	26 FEBRUARY 2014
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant 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 2287 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZTAO
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE:	26 FEBRUARY 2014
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

1. This is an application for leave to appeal from a decision of the Federal Circuit Court dismissing the applicant’s application to that Court for constitutional writ relief against the decision of the Refugee Review Tribunal given on 12 June 2013 that affirmed the decision of the Minister’s delegate not to grant the applicant a protection visa. His Honour did so on the basis that the application did not disclose any arguable case pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth): SZTAO v Minister for Immigration [2013] FCCA 1724.

   The applicant’s claims

2. The applicant is a citizen of India and is of Sikh ethnicity.  He claimed to be entitled to a protection visa on the basis that he feared persecution by reason of his ethnicity, religion and political opinion.  The applicant had made a detailed statement in his application for a protection visa outlining his claims.  But he did not attend any interview with the Minister’s delegate, who found that he was not entitled to the visa.  He had claimed to have been involved in the Akali Dal (Mann) party, to have agitated for the establishment of an independent Sikh state, to have sought investigations and commissions of inquiry as to mistreatment of Sikhs in India and to have been active and prominent in a political campaign associated with those activities while in India.  He claimed that, as a result of his activities, he had become quite famous and prominent and that threats were made to his parents, that he was himself kidnapped, bashed and had had his jaw broken, and that the police had arrested him without charge and only released him after the payment of substantial bribes. 

3. He claimed that the Indian police came to his parents’ house one day, threatened them with a gun and told him to stop his activities or else they would kill him.  The applicant also claimed that he became scared and ceased to speak against the Indian authorities but that, every time there was a crime in his area, the police would pick him up, torture him in jail and then throw him out of a vehicle near his house.  He claimed that, as a result, he had to change his identity, cut his hair, and move to another city, but that the authorities still pursued him so much so that he had to leave India and ultimately came to Australia.  He claimed that if he were returned to India he would continue to be subjected to similar activities and feared that he would either be left in jail for his life or killed because of his religion and his desire to bring to justice those responsible for injustices against the Sikhs, including the large numbers of persons killed at the siege of the Amritsar Golden Temple in 1984. 

4. In support of his application for a visa, the applicant provided the Department with a substantial number of documents referred to in his statement about the activities of the party with which he was associated, its members' harassment by officials, the Golden Temple siege and the various alleged atrocities committed against Sikhs by officials in India.  His application for review was the only document before the Tribunal additional to the material that the applicant had provided with his initial application for a visa.

   The Tribunal’s decision

5. The Tribunal noted that it had written to the applicant at his last notified address for correspondence on 16 May 2013 and invited him to appear before it on 11 June 2013 to give evidence and present arguments.  The Tribunal’s letter informed the applicant that it had considered all the material before it relating to his application but was unable to make a favourable decision on that information alone and that, if he did not attend the hearing, it may make a decision on his case without taking any further action to allow or enable him to appear before it.

6. The Tribunal stated that the applicant neither appeared before it nor contacted it at all.  It noted that the documentary evidence provided by the applicant suggested that certain Sikhs, acting in the manner that he had claimed to have acted, might in the past or might in the future be subjected to adverse treatment in India.  But it found that it was not satisfied on the basis of his assertions, his statement and the documentary evidence that his own claims were true.  It said that it was not satisfied as to the timing, nature or details of the applicant’s claimed involvement in the activities of the party and his other claims about his activities in India.  It was also not satisfied as to why he had not claimed asylum when he arrived in Australia, legally, on 30 July 2009 or after his student visa had expired in November 2011, what his activities in Australia were.  The Tribunal was also not satisfied as to how he had managed to have his passport reissued at the Indian consulate in Canberra on 18 June 2010 if, as he had claimed, he was an enemy of the Indian state and, indeed, why he had approached the Indian authorities in Australia whilst having such a fear of them and why he now feared that he would be harmed in India now and in the future.

7. Accordingly, the Tribunal found that it was not satisfied that there was a real chance that the applicant would face serious harm for the purposes of the Refugee Convention, either now or in the reasonably foreseeable future, if he returned to India and that he did not have a well-founded fear of persecution within the meaning of the Convention. The Tribunal also found that, on the evidence, it was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to India, there was a real risk that the applicant would suffer significant harm for the purposes of the complementary protection criterion in s 36(2)(aa) of the Migration Act 1958 (Cth).

   The proceedings in the Federal Court

8. The applicant’s amended application before the trial judge set out four grounds, namely:

   “1.RRT has erred in their decision, as given on 01/05/2012 [sic]. As the applicants matter was not dealt in accordance with the principles of the natural justice, the learned member of the RRT himself confessed that the applicant has suffered the harassments, and his many of close relations were killed during the Sikhs uprisings in India, and the applicant is undergoing the stress and the persecutions by the hands of the authorities back in India.

   2In the recent times the Amnesty International also quoted many stories regarding the state killings of the Sikhs in India, moreover there are so many reports given in human rights commission regarding the amount of the persecution and the killings of the Sikhs, it is submitted that many reports which appears in the international reports are not quoted in the matters of the Sikhs uprisings, it appears that the various governments are only hesitant to quote the Indian persecution , and do not quote them , because according to them the India is a secular Country , but in fact it is not so . Although the constitution looks to be secular, but in the practical it is a theoretic state. It is respectfully submitted that the RRT has beyond its jurisdiction and has committed an error of law as to why the applicant was pi point by some other claim, to which the applicant has no information, but this very finding of the RRT has resulted in a grave miscarriage of justice, putting the applicant in the shoes of some other refugee claimant.

   3.May the case was same; RRT is under legal obligation to ask the information from the applicant, regarding the above set finding. This means that the RRT has gone into statement and claims of some other applicant. The applicant is not concerned with claims of others,

   4.It is widely understood that All India Sikh student federation is banned by the Indian authorities like many other Sikh organisation, information regarding ASIIF is available on the Khalistan movement website. Moreover, the applicant party in known nationalist Party.”  (errors in original)

   Those grounds were accompanied by a threepage narrative by the applicant that largely rehearsed the claims that he had made in his protection visa application and elaborated on them.

9. His Honour considered the amended application in the context of a show cause application filed on 9 July 2013.  The applicant appeared before his Honour by telephone from Leeton in south-western New South Wales where he lives, assisted by an interpreter, as he has done again today.  The trial judge noted that the applicant had told him that he had responded to the Tribunal’s written invitation to appear, that he had written a letter indicating that he had been unable to attend the Tribunal hearing due to his remoteness from Sydney and that the letter had been returned to him, unopened, together with the Tribunal’s decision.

10. His Honour said that he had made orders on 31 July 2013, including an order that gave the applicant an opportunity to file and serve affidavit evidence, but that he had not done so.  The trial judge recorded that he had enquired whether the applicant could fax to the Court the letter he had allegedly sent to the Tribunal.  The applicant told his Honour that he was not in a position to do so.  His Honour observed that the assertions about the returned letter were surprising and contrary to the Tribunal’s findings.  He found that, on the basis of the evidence before him, the applicant did not respond to the invitation to attend that the Tribunal had issued to the applicant pursuant to ss 425 and 425A of the Act.  That finding was inevitable in the circumstances.

11. His Honour rejected the first ground in the amended application on the basis that the applicant’s assertions of a breach of the Tribunal’s obligations to afford him procedural fairness could not be sustained on the basis of the Tribunal’s decision record.  He said that the third ground appeared to assert that the applicant’s claims had been confused with those of other persons. He found that there was no foundation in the Tribunal’s decision record to support such an allegation.

12. His Honour found that the balance of the amended application simply raised a contest over the merits of the Tribunal’s decision, which was beyond the jurisdiction of the Federal Circuit Court.  He also rejected the applicant’s allegation that the Tribunal’s decision was vitiated by an apprehension of bias.  The trial judge found that there was no evidentiary support for that allegation.  Accordingly, his Honour found that the applicant had failed to persuade him that there was any arguable case of jurisdictional error by the Tribunal.

    The application 

13. The applicant filed an affidavit in support of his application for leave to appeal that recited a number of criticisms of the reasoning process of the Tribunal and then set out in substance the basis of his claims to a protection visa.  His draft notice of appeal asserted that the trial judge’s decision “suffers from legal errors” and that “it is pertinent to note that the applicant never received any letter from RRT for Interview”.  The grounds then went on to argue the merits of the applicant’s claim to a protection visa and refer to some decision of the Tribunal given on 24 September 2012, which is plainly not the decision in respect of which the applicant sought judicial review in the Court below.  The grounds in the draft notice of appeal bear all the hallmarks of a recycled precedent that has no relationship to the facts of the applicant’s claims in these proceedings.

14. The applicant also made a detailed written submission in support of his application asserting that the trial judge disposed of his case in an arbitrary way.  The submission argued that the Tribunal had not considered his claims and that the trial judge had simply relied on the decision of the Tribunal which was, so he said, in error.  The submission then went on to argue the merits of the applicant’s claim to a protection visa that were properly for the Tribunal to decide.  In his oral argument today, the applicant asserted that he sought that the Court review all of the material before the Tribunal and contended that he should not be sent home to India because he still faced persecution.

15. The principles that govern the grant of leave to appeal are well established.  They are that an applicant for leave, first, must establish that the decision in question is attended with sufficient doubt to warrant the grant of leave and, secondly, must show that substantial injustice will result from a refusal of leave to appeal:  Bienstein v Bienstein (2003) 195 ALR 225 at 231 [29] per McHugh, Kirby and Callinan JJ.

16. I am satisfied that the trial judge’s reasons were undoubtedly correct and that there is no prospect of an appeal succeeding.  The Tribunal fulfilled its statutory function under ss 425 and 425A of the Act by inviting the applicant to appear before it.  The invitation informed him that this was because the Tribunal did not consider that it could decide the review in his favour on the basis of the material he had provided to the Department and it up to that point.  The Tribunal had power to make a decision on the review without taking any further action to allow or enable the applicant to appear before it pursuant to s 426A if, as happened, he did not appear on the day and at the time and place at which he was scheduled to appear in accordance with an invitation given under ss 425 and 425A.

17. Morever, the Tribunal’s reasons disclose no possible case of jurisdictional error in its explanation as to why the material the applicant had provided it failed to satisfy it that he was entitled to a protection visa.  There was no denial of natural justice or breach of the rules of procedural fairness in the Tribunal’s process.  It complied with the process mandated by the Act.  I am unable to perceive any basis on which it could be argued that his Honour came to an incorrect conclusion when he found that there was no arguable case identified in the amended application.

    Conclusion

18. For these reasons, the application must be dismissed with costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:       18 March 2014