SZTAZ v Minister for Immigration
[2014] FCCA 2225
•1 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTAZ v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2225 |
| Catchwords: MIGRATION – Application seeking review of decision Refugee Review Tribunal – refusal to grant applicant a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 91R(2)(a), 91X |
| Minister for Immigration and Citizenship v SZIAI & Anor (2009) 259 ALR 429 Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 258 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 |
| Applicant: | SZTAZ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1576 of 2013 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 24 September 2014 |
| Delivered at: | Sydney |
| Delivered on: | 1 October 2014 |
REPRESENTATION
| The Applicant: | The Applicant appeared by teleconference with the assistance of a Punjabi interpreter. |
| Solicitor for the First Respondent: | Ms L Buchanan of Australian Government Solicitor |
| The Second Respondent: | The Second Respondent filed a submitting notice. |
ORDERS
The name of the First Respondent be amended to “Minister for Immigration and Border Protection”.
The Application filed on 11 July 2013 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the Application.
The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym SZTAZ.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1576 of 2013
| SZTAZ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application under the Migration Act 1958 (Cth) (the “Migration Act”) seeking judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”), being RRT Case Number 1220392, a decision of Tribunal Member S. Roushan dated 13 June 2013, affirming the decision of a delegate of the Minister for Immigration and Border Protection (the “Minister”) to refuse to grant the applicant a Protection (Class XA) visa.
The solicitors for the first respondent, the Minister, filed on 5 August 2013 a folder which was indexed, labelled and paginated, containing all documents which may be relevant to the hearing. The volume of material provided is identified as the Court Book (“CB”) and has been marked Exhibit “A”.
The applicant was granted leave on 20 August 2013 to file and serve any amended application, affidavit evidence, written submissions or list of authorities upon which he sought to rely, however, elected not to do so.
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the Minister. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book, each item contains a reference (“CB”) for that material.
The applicant is a citizen of India (CB 27) born in 1975 (CB 16). He arrived in Australia on 30 June 2009 as the holder of a Student visa (CB 40). He left Australia to travel to India in March 2010 before returning in May 2010.
On 26 July 2012 the applicant lodged his application for a Protection visa with the Department of Immigration (CB 1). A delegate of the Minister refused his application on 27 November 2012.
Applicant’s Claims
The applicant claimed to be a member of the Congress Party (CB 7). He claimed to have been attacked in 2004 (or 2005) and 2007 by supporters of the Akali Dal Party (CB 76 at [16]). He claimed that if he returned to India Akali Dal Party supports would try to harm or kill him because of his work for, and office held with, the Congress Party. Other than the statements contained within the applicant’s Protection visa application, there were no other documents provided by the applicant in support of his claims, before the delegate or the Tribunal.
Tribunal’s Decision
The applicant lodged his application for review of the delegate’s decision with the Tribunal on 21 December 2012 (CB 54). On 6 June 2013 the applicant attended a hearing before the Tribunal (CB 70).
The Tribunal affirmed the delegate’s decision to refuse to grant the applicant a Protection visa on 13 June 2013 (CB 74-81).
The Tribunal accepted the applicant was a Congress Party supporter (CB 80 at [35]). It accepted the applicant was attacked in 2007 (CB 80 at [36]), however, it observed that he did not claim he had been attacked since that incident and that he lived in India for a protracted period of time thereafter (CB 80 at [36]). The Tribunal also noted that the applicant returned to India in 2010, during which time he lived with relatives near his home and facilitated the sale of his house (CB 80 at [36]).
The Tribunal concluded that there was no evidence of continued adverse interest in the applicant by anyone (CB 80 at [37]). It therefore rejected the applicant’s claims under the Refugees Convention (CB 80 at [41]) and also found he was not entitled to complementary protection (CB 81 at [42]).
Current Proceedings
The application filed in this Court on 11 July 2013 pleads the following three grounds of review:
1. The Tribunal failed to consider properly the test whether the applicant would suffer serious harm as per sec.91R(2)(a) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do), if they asked to relocate in India. The Tribunal failed to satisfy this statutory obligation was a serious jurisdictional error caused by the Tribunal.
2. 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.
3. The [Tribunal] has failed to investigate applicant’s claims, specially the grounds of persecution, in India. Therefore, the Tribunal decision dated 13 June 2013 was effected by actual bias constituting judicial error.
The proceedings were originally listed for final hearing on 27 May 2014, however, were adjourned to 24 September 2014 due to the inability of the Court to hear the matter on that date.
Applicant’s Submissions
The applicant indicated to the Court that he required further time as he had been very sick for the preceding five months before the hearing and, as a result, had not been able to prepare for the hearing properly.
When asked if he had any oral submissions in chief, the applicant indicated he did not.
The applicant also indicated he had read the Minister’s written submissions, however, did not wish to make any comments in reply.
Minister’s Submissions
The Minister’s representative indicated to the Court at the hearing he was content to rely on his written submissions.
Ground 1
The Minister contends this ground appears to complain that the Tribunal erred in its consideration of whether the applicant could relocate within India. The Tribunal’s findings on relocation were not necessary in view of its rejection of the applicant’s Convention and complementary protection claims, and in light of its finding that there was no continuing adverse interest in the applicant in India (CB 80 at [36]; [38]). There was no error in the Tribunal’s finding that the applicant would not suffer serious harm in India in the reasonably foreseeable future.
Ground 2
The Minister submits that Ground 2 of the application asserts the Tribunal erred because it did not arrive at its “reasonable satisfaction” in accordance with the Migration Act. No jurisdictional error can be established without particulars of the matters in respect of which the applicant asserts error. Ground 2 appears to be a general challenge to the Tribunal’s findings, which would impermissibly invite merits review.
Ground 3
The Minster submits Ground 3 of the application contains two assertions. The first is that the Tribunal erred because it did not investigate the applicant’s claims. The second is that the Tribunal was biased.
As to the first assertion, the Tribunal was obliged to review the applicant’s claims, not to investigate them generally (see Minister for Immigration and Citizenship v SZIAI & Anor (2009) 259 ALR 429 at [25]). Although the Tribunal may be obliged, in limited circumstances, to make an obvious inquiry about a critical fact the existence of which is easily ascertained (see SZIAI (supra) at [25]), the applicant has not provided any particulars to support such an obligation. Nor is such an obligation apparent from the face of the Tribunal’s Decision Record.
As to the second assertion, an allegation of bias must be supported by probative evidence (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69], [127]). The applicant has not provided a transcript of the Tribunal hearing or any other evidence in support of this assertion. There is also nothing on the face of the Tribunal’s Decision Record that would substantiate an allegation of bias.
For these grounds, the Minister submits that Ground 3 of the application does not establish jurisdictional error on the part of the Tribunal.
The Minister submits the Tribunal’s decision was not affected by jurisdictional error and the application before this Court should be dismissed with costs.
Consideration
Immediately before the commencement of the hearing, the Minister’s representative provided to my associate correspondence sent to her by facsimile from the applicant on 21 September 2014. The facsimile contained a letter from the applicant addressed to the Court (though it appears not to have been received by this Court), a copy of correspondence sent from my chambers to the parties advising of the new hearing date and a medical certificate dated 22 September 2014 prepared by Dr H. Johar.
The facsimile letter stated:
Dear Sir,
I [SZTAZ], inform you that I have the hearing date on 24th September 2014. I am unable to attend that hearing, because I am still sick. So I request to you for another next available hearing date.
I will be very thankful to you. …
The medical certificate that was attached to the letter stated:
THIS IS TO CERTIFY THAT
Mr [SZTAZ]
IS RECEIVING MEDICAL TREATMENT AND FOR THE PERIOD
Monday, 22 September 2014 TO Friday, 26 September 2014 INCLUSIVE
He WILL BE UNFIT TO CONTINUE his USUAL OCCUPATION.
This Certificate was completed on 22/9/2014
Dr [H.] Johar
My associate contacted the applicant by telephone link and indicated to him that the Court would sit at the allocated time and it would hear any submissions he had in support of his seeking of an adjournment.
The applicant indicated he had been ill for approximately five months, however, gave no indication as to what the nature of his purported illness is/was. I note that the medical certificate (see [27] above) provides no clarification in that respect. I further note that, even if the applicant has been ill for this period, no evidence, amended application, or submissions were filed with him by 13 May 2014, which is the last date ordered by Judge Barnes on 20 August 2013 for the filing of any documents by the applicant in support of his application.
Accordingly, I was not satisfied that it was in the interests of the administration of justice for a further adjournment to be granted to the applicant when it was unclear what, if any, purpose that adjournment would serve. I indicated to the parties I intended to proceed to hear the matter on the allocated day and would grant leave for the applicant to appear by teleconference, noting no prejudice would be encountered by the applicant as there were no witnesses to be cross-examined.
The applicant indicated he had no oral submissions to make, either in chief or in reply, in support of his application.
Ground 1
I accept the Minister’s description of the claim alleged in Ground 1 of the application. At [36] of its Decision Record, the Tribunal stated:
36. … Given these factors, the Tribunal finds that there is no real chance that the applicant would face persecution now or in the reasonably foreseeable future having been a Congress party supporter or should he continue to be a Congress party supporter in India now or in the reasonably foreseeable future.
(CB 80)
The Tribunal then stated at [38] of the Decision Record:
38. Although unnecessary, given its finding that the applicant’s fear of persecution is not well-founded in his home village, the Tribunal would further find that that the applicant could also relocate safely in India …
(CB 80)
It is clear the Tribunal found the applicant did not have a well-founded fear of persecution which was open to it on the material before it. The Tribunal’s statement at [38] is written in the conditional tense and, in effect, a purely hypothetical statement as it had already found the applicant did not have a well-founded fear. There was no obligation for the Tribunal to consider whether the applicant would suffer serious harm if he relocated as it had already found there was no real chance he would at [36]. Accordingly, this ground must fail and should be dismissed.
Ground 2
This ground appears to complain that the Tribunal, in coming to its decision, had no jurisdiction as its “reasonable satisfaction” was not arrived at in accordance with the Migration Act. However, this ground has not been particularised and is unclear.
On a fair reading of the Decision Record, no error is apparent in the nature complained of in this ground. To the extent the applicant seeks to challenge the Tribunal’s findings generally, such a challenge would invite the Court to engage in impermissible merits review (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 258 at 280-282).
Accordingly, this ground must also fail and should be dismissed.
Ground 3
This first aspect of this ground alleges the Tribunal failed to properly investigate the applicant’s claims, particularly in relation to persecution in India.
In SZIAI (supra) their Honours French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ stated at [25]:
Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.
The applicant has failed to provide any particulars to support the claim that the Tribunal failed to make an obvious inquiry about a critical fact, the existence of which was easily ascertained, and made no oral submissions in this respect. Accordingly, this aspect of the ground must fail and should be dismissed.
The second aspect of the ground pleads actual bias on the part of the Tribunal without any particularisation. The applicant has also declined to make any further submissions in respect of this claim when given the opportunity at the hearing.
In Jia Legeng (supra) his Honour Kirby J stated at [127]:
Nevertheless, because of the seriousness of the alleged wrongdoing, that the minister had, in effect, given way to his animosity against Mr Jia and people like him or acted upon a prejudgment of his case, it is clear law that such allegations will only be upheld by a court where the accusations are distinctly made and clearly proved. In short, the accusation of such bias must be “firmly established”. At first instance, French J declined to draw that conclusion in Mr Jia's case. He recognised the stringent standard of proof required and held that, to make out such a case, Mr Jia had to prove that, at the time of the decision, the minister had “a closed mind to the issues raised and was not open to persuasion by the applicant's case”.
No evidence in support of an allegation of bias has been provided to the Court by the applicant and any such allegation must be supported by probative evidence. Further, there is nothing on the face of the Decision Record to support such an allegation.
Accordingly, I am satisfied that such an allegation cannot be sustained and should be dismissed.
Conclusion
None of the pleaded grounds in the application demonstrate any error on the part of the Tribunal. Further, a fair reading of the Court Book and Decision Record does not reveal any error. The application should be dismissed with costs awarded to the Minister.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 1 October 2014
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