SZTBG v Minister for Immigration & Border Protection

[2014] FCCA 1468

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTBG v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 1468

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal considered all corroborative evidence – whether the Refugee Review Tribunal considered all claims made by the applicant – whether the Refugee Review Tribunal’s findings were open to it – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 91R, 411, 422B, 425, 474
Migration Regulations 1994 (Cth), reg.2.01

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51

Applicant: SZTBG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1597 of 2013

Judgment of: Judge Emmett

Hearing date: 9 July 2014

Date of Last Submission: 9 July 2014

Delivered at: Sydney

Delivered on: 9 July 2014

REPRESENTATION

The applicant appeared in person with the assistance of an interpreter.

Solicitors for the Respondents: Ms Michelle Stone
(DLA Piper)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1597 of 2013

SZTBG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 28 June 2013 and handed down on the same date (“the RRT”).

2. The applicant claims to be a citizen of India and of Hindi faith and Ror ethnicity, who fears harm from the Congress Party of India and its members due to his political involvement in opposition to the Congress Party.

3. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a protection visa, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the RRT’s review and decision.

Background

1. The applicant arrived in Australia on 24 October 2011 having departed legally from India on a passport issued in his own name and a Subclass 456 (Temporary Business) visa issued on 12 October 2011 .

2. On 6 January 2012, the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”).

3. On 29 June 2012, the Delegate refused the applicant’s application for a protection visa.

4. On 18 July 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.

5. On 28 June 2013, the RRT affirmed the decision of the Delegate not to grant a protection visa.

6. On 15 July 2013, the applicant filed an application in this Court seeking judicial review of the RRT’s decision.

Legislative framework

1. Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

3. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

4. Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.

5. Section 36(2)(aa) of the Act provides that:

   “(2)  A criterion for a protection visa is that the Applicant for the visa is:

   (aa)  a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”

6. Section 36(2A) of the Act defines “significant harm.”

7. Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.

8. The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act).

9. Under s.474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

10. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision. (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The applicant’s application for a protection visa

1. The applicant provided a statement in support of his protection visa application in which he stated:

   a)The applicant became involved in the political activities of the Smajwadi Jnata Party (“the SJP”). The applicant became a member of the party, and upon his graduation from university in 1993 became an assistant media speaker and fund collector for the local branch.

   b)In January 1995, the applicant gave a speech against the former Haryana State Congress chief. The Congress Party was angered by the applicant’s speech and attacked him on his return home with hockey sticks, iron rods and a sword. The Congress Party members beat the applicant and tried to kill him. The applicant was left badly injured.

   c)The applicant fled to the state of Orissa in India, where he lived with a friend. The applicant made regular contact via telephone with people in his home town so as to keep abreast of the political situation. His location was traced by the police.

   d)The applicant was arrested, charged under the National Security Act and imprisoned for 10 months. The applicant paid a bribe to secure his release, but did not return home for fear of being killed. Instead, the applicant hid in Delhi until 1999.

   e)In July 1999, the applicant’s political party, the Indian National Lok Dal Party (“the INLD”) came to power in his home district. The applicant returned to his home town and recommenced work as a media speaker. The applicant also undertook fund raising and collection for the party. The party was remained in power following the 2000 elections.

   f)The applicant continued his work and became a “headache” for the opposition Congress Party because of his growing status.

   g)In 2005, the Congress Party returned to power. The applicant fled to Delhi and started a company.

   h)In September 2005 while attending a political meeting at his home, the applicant was attacked by members of the Congress Party. The applicant sustained a sword wound to his head as a result of the attack.

   i)The applicant ran to China in September 2006 for seven days to hide, and to Thailand in March 2007 for thirteen days. Following each visit, the applicant returned to India. The applicant’s wife separated from him in August 2007 because of the associated risk to her life of being married to the applicant.

The Delegate’s decision

1. On 29 June 2012, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention and does not meet the alternative complementary protection criterion.

2. The Delegate found the applicant’s evidence to be vague, lacking in detail or verifiable fact in respect of his duties, activities and position within the SJP and INLD, and was generally lacking in credibility.

3. The Delegate formed the opinion that if the applicant’s claims were to be believed, given his claimed long time active association with the SJP and INLD in an active media role, there should be a wealth of photographic and documentary evidence of his work. The Delegate noted that regular party members could probably not provide such evidence, but in the applicant’s circumstances the lack of corroborating evidence weighed heavily against the veracity and credibility of his claims.

4. The Delegate did not accept the applicant’s claims that he was a political target for the Congress Party from 1995 to the present. The Delegate found it implausible that the applicant had been a target for such a major action by the Congress Party as claimed that he would not have been killed by them following the two serious assaults. The Delegate found it similarly implausible that the applicant would have been threatened by the Congress Party in 2006, rather than killed, given that the perpetrators had the opportunity to do so.

5. The Delegate noted the applicant’s extensive travel outside of India since September 2006 and the applicant’s failure to avail himself of protection on those occasions, or to gather materials to support a claim for protection in that time.

6. The Delegate also noted that the applicant returned to India eight times following overseas travel since September 2006.

7. The Delegate also noted that the applicant returned to India following the grant of a temporary business visa while the applicant was in Bangkok in October 2011. The Delegate did not accept that the applicant would have returned to India at this time if he held a genuine and well-founded fear of persecution.

8. Accordingly, the Delegate found that the applicant did not hold a well-founded fear of persecution for a Convention related reason.

9. On the basis of the same credibility findings, the Delegate found that there were not substantial grounds for believing that the applicant was at a real risk of significant harm were he to return to India.

The RRT’s review and decision

1. On 18 July 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.

2. On 31 October 2012, the RRT wrote to the applicant informing him that the RRT had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 3 January 2013 to give oral evidence and present arguments.

3. On 3 January 2013, the applicant attended the RRT hearing and gave evidence.

4. The RRT noted that it had before it the Department’s file and the Delegate’s decision record.

5. The RRT explored the applicant’s claims with him in some detail at the hearing and put to him concerns it had about his evidence, noting his responses.

6. The RRT found that the applicant was not a credible witness on the basis of a number of concerns it had with the applicant’s evidence. In particular, the RRT noted:

   a)The inconsistencies between the applicant’s written claims and his oral evidence to the RRT;

   b)The inconsistencies between the applicant’s account of events and the details contained in his documentary evidence; and

   c)The applicant’s frequent returns to India following overseas travel following the alleged attack in 2006 as being inconsistent with a claim to fear harm in India.

7. The RRT had regard to documentary evidence produced by the applicant, including the applicant’s INLD identity card and his letter of appointment as officer in charge of media, but found these had little evidentiary value. The RRT was not satisfied that the applicant had been involved in political activities for the INLD or its predecessor, the SJP.

8. The RRT was also not satisfied that the applicant had been attacked, threatened, harmed, searched, arrested or imprisoned because of his political activities, or that the applicant had to hide within India or travel overseas for these reasons.

9. The RRT was not satisfied that the applicant would be involved in the INLD or other political activities in the event that he returned to India and was therefore not satisfied that the applicant would be harmed in the reasonably foreseeable future for reason of his political activities.

10. The RRT found that the applicant’s claim of persecution was not well founded and that there was no evidence to support a finding that the applicant would suffer harm for a Convention related reason were he to return to India. Accordingly, the RRT concluded that the applicant was not a person to whom Australia owed protection obligations pursuant to s.36(2)(a) of the Act.

11. The RRT also considered whether the applicant met the alternative criterion for complementary protection under s.36(2)(aa) of the Act and concluded that he did not. Accordingly, the RRT found that there are not substantial reasons for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, India, there is a real risk that the applicant would suffer significant harm.

12. Accordingly, having determined that the applicant did not satisfy the refugee criterion in s.36(2)(a) of the Act, or the alternative criterion in s.36(2)(aa) of the Act, the RRT affirmed the decision under review.

The proceeding before this Court

1. The applicant was unrepresented before this Court, although had the assistance of a Hindi interpreter. 

2. On 19 September 2013, the applicant attended a directions hearing before me.

3. The applicant confirmed that he wished to continue with his application for judicial review. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the RRT hearing, as well as submissions in support.

4. At the directions hearing, the applicant was referred to the Court’s Legal Advice Scheme for free legal advice. The applicant has participated in the Court’s Legal Advice Scheme and received free legal advice.

5. At the commencement of today’s hearing, the applicant confirmed that he has not filed any amended application, evidence or submissions in support of his application. However, the applicant filed in Court this afternoon a written outline of submissions.

6. The applicant confirmed that he relied on the grounds contained in his application filed on 15 July 2013 as follows:

   “1. The member of the Refugee Review Tribunal did not consider the corroborative evidences which I have provided. In paragraph 118 the Tribunal states, “the identity card shows no date of issue or expiry. The letter of his appointment as officer-in-charge of media is dated 1999. They are of little evidentiary value.

   2. The Tribunal member failed to consider my job duties as officer-in-charge of media.

   3. The decision of the Refugee Review Tribunal is arbitrary, capricious, irrational and illogical.

   4. The Tribunal has made a statement in paragraph on my behalf stating in paragraph 120 that, “he will (not) be involved in political activities for the INLD or otherwise if he returns to India”. The Tribunal goes into this extent of forecasting an declares that, “the Tribunal is not satisfied that, in the reasonably foreseeable future, the applicant will be attacked, threatened or harmed or searched for or arrested or imprisoned or killed because of his political activities if he returns to India”. Such statements by the Tribunal are merely arbitrary and the member is not aware of the political environment of my country.”

7. Each of the grounds was interpreted for the assistance of the applicant and the applicant was invited to make submissions in support of each of the grounds and in support of the application generally. The applicant declined to make any submission in support of the grounds of his application beyond those addressed in his written submission.

Ground 1

1. Ground 1 asserts that the RRT did not consider the applicant’s corroborative evidence.

2. Ground 1 referred to the RRT’s finding that it placed little weight on the applicant’s identity card. The RRT stated in its decision record that it placed little weight on the identity card because the identity card showed no date of issue or expiry.

3. The RRT noted that the letter of his appointment as officer-in-charge of media is dated 24 September 1999. The RRT found that there was no other corroborating evidence of the applicant’s role in the INLD.  Further, the RRT found that the statement in the letter that the applicant had given “many years of service” to the INLD was not consistent with the applicant’s account of events. The RRT found that the applicant’s evidence revealed that he had not given “many years of service” to the INLD as alleged in the INLD letter. In particular, the RRT noted that he claimed to have been in jail for ten months in 1995 and then in hiding until after 24 July 1999.

4. The RRT also considered a medical certificate, dated 15 September 2006, provided by the applicant which stated that the applicant was taken to the doctor by his mother and brother. The RRT found that information to be inconsistent with the applicant’s claim to have been taken to hospital by a member of his party. Further, the RRT noted the applicant’s evidence that he obtained the medical certificate because his father wanted it for the police for court. However, the RRT noted that the applicant’s father’s death certificate provided to it by the applicant showed the date of his father’s death to be 13 February 2004.

5. The RRT comprehensively rejected the applicant’s claims of political affiliation with the INLD or his claims of harm for the reasons claimed on the basis of adverse credibility findings.  

6. The RRT’s findings were open to it on the materials and evidence before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the RRT (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). A credit finding is sound if it was “open to [the RRT] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility.” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547)

1. It is well established that the RRT is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the RRT have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

2. Accordingly, the applicant’s complaint in ground 1 that the RRT did not consider his corroborative evidence is not made out.

Ground 2

1. Ground 2 alleges that the RRT failed to consider the applicant’s job duties as officer-in-charge of media with the INLD.

2. The RRT’s decision record makes clear that the RRT explored in some detail with the applicant his claim to be an assistant media speaker for the INLD. The RRT referred to the letter dated 24 September 1999 to that effect. As stated above, the RRT placed little weight on the applicant’s evidence in support of that claim for the reasons referred to in ground 1 above.

3. As stated above, those findings were open to the RRT on the evidence and materials before it and for the reasons it gave.

4. Accordingly, ground 2 is not made out.

Ground 3

1. Ground 3 asserts that the RRT’s decision is “arbitrary, capricious, irrational and illogical”. This ground was wholly unparticularised.

2. In his written submission provided to the Court this afternoon, the applicant stated for the first time that he had trouble getting his “message across” to the RRT and that he could not communicate exactly the way he wanted. He stated that he could not make the RRT understand the misery he had been through.

3. To the extent that these assertions are suggestive of complaints about the quality of interpretation, there was no transcript of the RRT hearing provided to this Court, nor did the applicant provide any evidence to this Court to suggest that the RRT’s decision record is not accurate. At the directions hearing on 19 September 2013 the applicant was given an opportunity to file a transcript of the RRT hearing. The applicant was also directed to give notice if he wished to rely on recordings of the hearing.

4. However, no step was taken by the applicant to rely on any such evidence. In the circumstances, the Court accepts as accurate the RRT’s summary of the oral evidence given by the applicant and exchanges it had with the applicant at the RRT hearing. The Court is entitled to accept the RRT’s decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).

5. The applicant’s written submission also made a general assertion that the RRT did not take into consideration the “general threat” posed against him by “the members of certain political party”. However, a fair reading of the RRT’s decision record makes clear that the RRT well understood the applicant’s claims to fear persecution from members of the Congress Party and explored those claims with the applicant in significant detail at the hearing. Ultimately, the RRT was not satisfied that the applicant had been involved in political activities with the INLD or its predecessor in India, or that he was attacked, threatened, harmed, searched for or arrested or imprisoned because of his political activities in India. The RRT was not satisfied that the applicant had to hide in India and travel overseas since 2006 for the reasons claimed.

6. Again, those findings were open to the RRT on the evidence and materials before it and for the reasons it gave. As stated above, those findings were based on the comprehensive rejection of the applicant as a credible witness for reasons that were open to the RRT.

7. The applicant’s written submission also asserts that he told the RRT that he could provide documents to prove that he was in detention for ten months in 1995. There is nothing on the face of the RRT’s decision record to suggest that the applicant asked the RRT, either at the hearing or subsequently, for additional time to provide any such documents. Moreover, the hearing before the RRT was on 3 January 2013, yet its decision was not made until 28 June 2013. There was no further evidence proffered by the applicant to the RRT of any kind in support of his claims in that intervening five month period.

8. Otherwise, the applicant’s written submission cavils with the RRT’s findings in relation to his travel history and frequent returns to India. Again, it was open to the RRT to have regard to that conduct in considering whether the applicant’s alleged fear was well-founded and in considering whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm.

9. A fair reading of the RRT’s decision record does not support the applicant’s bare, unparticularised assertion that its decision is arbitrary, capricious, irrational and illogical.

10. Accordingly, ground 3 is not made out.

Ground 4

1. Ground 4 complains about the RRT’s conclusions that it was not satisfied that, in the reasonably foreseeable future, the applicant would be attacked, threatened or harmed, searched for or arrested or imprisoned or killed because of his political activities if he returns to India. Ground 4 asserts that such a finding is “arbitrary”. However, the RRT’s statement is its conclusion of its consideration of the applicant’s claims, the findings it made, and its application of the relevant law to those findings. The RRT’s conclusion was open to it on the evidence and material before it and for the reasons provided above for its adverse credibility findings in respect of the applicant’s evidence.

2. In the circumstances, none of the grounds identify any jurisdictional error on the part of the RRT and appears more to be a disagreement with the findings and conclusions of the RRT. The applicant’s complaints, such as they are, invite merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] by North, Lander and Katzmann JJ:

   “It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”

3. Accordingly, ground 4 is not made out.

Conclusion

1. A fair reading of the RRT’s decision record makes clear that the RRT understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The RRT put to the applicant matters of concern it had about his evidence and noted the applicant’s responses.

2. The RRT then made findings based on the evidence and material before it. Those findings of fact were open to the RRT on the evidence and material before it and for the reasons it gave. A fair reading of the RRT’s decision record makes clear that the RRT reached conclusions based on the findings made by it and to which it applied the correct law.

3. In the circumstances, the RRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The RRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  9 July 2014