SZTDX v Minister for Immigration

[2014] FCCA 535

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTDX v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 535

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed to consider all the evidence before it, gave inappropriate weight to certain evidence, failed to conduct a proper review, failed to apply the Convention tests, failed to seek out additional information and failed to permit the applicant to supply further information.

Legislation:

Migration Act 1958, ss.36, 414, 425, 426A, 474

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: SZTDX

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1808 of 2013

Judgment of: Judge Cameron

Hearing date: 21 February 2014

Date of Last Submission: 21 February 2014

Delivered at: Sydney

Delivered on: 21 February 2014

REPRESENTATION

The Applicant appeared by telephone.

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $4,800.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1808 of 2013

SZTDX

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of India who arrived in Australia on 25 December 2008 as the holder of a student dependent visa.  On 26 October 2012 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that he feared persecution in India because of an altercation he had had with several men in that country.  On 4 March 2013 the applicant’s application was refused by a delegate of the first respondent (“Minister”).  The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Background facts

1. The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 2-3 of the Tribunal’s decision which, to the extent relevant, I will summarise.

2. The applicant made the following claims in his protection visa application:

   a)he had been involved in a fight in a bar with some drunken men after they had made “inappropriate comments” to his girlfriend.  The men had guns and some shots were fired.  He was beaten and had a gun pointed at him “many times”.  When the police arrived, the men blamed the applicant but before they could put him in gaol he came to Australia.  The men were the sons of politicians and therefore had the police on their side;

   b)the police would not protect him because they were corrupt, took bribes, would not protect people like him and they, along with the men, would kill him;

   c)he had documentary evidence that supported his claims and would provide it later as “they” were going overseas; and

   d)he had thought he was going to stay in Australia permanently and applied for his protection visa after his student visa was cancelled.

3. At the interview with the delegate the applicant relevantly provided the following additional information and claims:

   a)he had married in India on 1 October 2008 and arrived in Australia on 25 December 2008.  He separated from his wife on 7 November 2010;

   b)the fight occurred in January or February 2007 at a restaurant and there had been six men involved;

   c)he had been injured in the fight and received treatment at a clinic;

   d)he lodged a first incident report with the police, but they did not accept it as it was lodged more than two months after the incident and they blamed the applicant for the incident;

   e)“they” had arranged for him to leave India and had found a girl for him to marry.  He had first heard about the student visa on 20 December 2008;

   f)when it was put to him that there were inconsistencies in his claims which indicated that he was not a credible witness, he replied “That’s fine”; and

   g)when it was put to him that his four year delay in applying for a protection visa indicated that he was applying in order to prolong his stay in Australia, he said that he had applied because his life was in danger.

The Tribunal’s decision and reasons

1. On 10 May 2013 the Tribunal wrote to the applicant pursuant to s.425 of the Act to advise him that it had considered all the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to a hearing on 17 July 2013 to give oral evidence and present arguments. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal might make a decision on his application without further notice. No response was received from the applicant and he did not appear before the Tribunal on the day and at the time he was scheduled to appear. In these circumstances, and pursuant to s.426A of the Act, the Tribunal proceeded to make a decision on the review without taking any further action to enable the applicant to appear before it.

2. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons:

   a)it considered that the claims made in his interview with the delegate were significantly different from the claims he had made in his protection visa application.  In particular, the Tribunal noted that no reference had been made to guns, gunshots or the police in his delegate interview.  The differing versions of the altercation indicated to the Tribunal that the applicant’s claims had been fabricated and that he was not a credible witness; 

   b)it considered that as the incident had occurred more than six years earlier, it would have been reasonable to consider that those involved had moved on and were not interested in the applicant.  It also noted that the applicant had remained living without incident at the same address in India for two years after the alleged altercation; and

   c)the applicant had stated in his protection visa application that he had documents to support his claim yet had not provided any such evidence in the ten months between lodgement of that application and the Tribunal’s decision.

Proceedings in this Court

1. In the application commencing these proceedings the applicant alleged:

   1.The Tribunal failed to accord “Procedural Fairness” to the Applicant because of:

   1.1its failure to carry out its role in an Inquisitorial Manner when it should have considered all of the evidence before it rather than make a contrary finding when it said:

   “… the incident happened over 6 years ago and in such circumstances it would be reasonable to consider that those involved have moved on and are not interested in the applicant.

   … his remaining in India and living at the same address for nearly 2 years following the incident and nothing happening to him.

   … in the interview with the delegate no mention is made of guns or shots being fired during the fight in early 2007, nor is there mention of the police attending the incident.” (RRT decision para.13)

   1.2the weight it gave to the claims of the Applicant in his application for a protection visa despite the Applicant providing an honest explanation of these claims when it said:

   “… his remaining in India at his home address … indicated he did not have a genuine fear of harm in India and further that waiting for 2 weeks after the student visa was granted before leaving Iida (sic) also indicated this.

   … It was put to him this indicated he was not a credible witness.” (RRT decision para.10)

   The Applicant submits that the Tribunal erred in not assessing the Applicant’s claims in a manner that was required as mandatory under sec.414 of the Migration Act 1958, and this gave rise to jurisdictional error.

   2.The Tribunal acted in a “unreasonable” manner towards the Applicant when dealing with the Applicant’s claims because of it’s failure to consider the claims in accordance with the UN Convention relating to Status of Refugee, due to the following conclusions:-

   2.1“It was put to him that his claims and details of the incident as made at the interview contradicted his claims as in his written application.

   … It was put to him that his not applying for a protection visa until 4 years after arrival indicated he did not have a genuine fear of persecution.” (RRT decision para.10)

   2.2“The Tribunal is not satisfied, … that the applicant has a well founded fear of persecution for a Convention reason.” (RRT decision para.14)

   2.3“Nor is the Tribunal satisfied that there are substantial grounds for believing that, … there is a real risk that the applicant will suffer significant harm.” (RRT decision para.14).

   The Applicant submits that the Tribunal acted in an unreasonable way when dealing with the Applicant’s claims and failing to consider the aspect of persecution or serious harm which had to be satisfied in order to determine whether the Applicant has a well founded fear of serious harm.  The Tribunal’s failure to observe this obligation amounted to a jurisdictional error.

   3.The Tribunal fell into jurisdictional error in failing to request more information regarding the Applicant’s persecution.

2. At the hearing of this application the applicant also submitted that the Tribunal had not given him an additional opportunity to advance his evidence or give his evidence.

Introductory Matter

1. At the hearing of this application, the applicant said that he had not received the bundle of relevant documents filed by the Minister on 21 August 2013.  However, as the Minister did not tender that document or rely on it, the applicant’s complaint has no significance.  The only evidence before the Court dealing with the Tribunal’s decision was the decision itself, a copy of which was annexed to the applicant’s affidavit sworn 31 July 2013. 

Ground 1

1. The first ground of the application alleged a denial of procedural fairness and contained two sub-elements.  The first of these was an assertion that the Tribunal had failed to consider all the evidence however, the applicant did not identify the evidence which he said the Tribunal had not considered.  The applicant did not suggest that the Tribunal’s summary of the evidence before it was incorrect or incomplete and it was that evidence which the Tribunal considered in para.13 of its reasons.  I am not persuaded that the Tribunal had evidence in its possession which it failed to consider. 

2. The second sub-element of the first allegation concerned the weight which the Tribunal gave to evidence before it.  Matters such as that are ones solely for the Tribunal and this aspect of the allegation did not raise any arguable case of jurisdictional error on the Tribunal’s part. 

3. It was also alleged in the first ground of the application that the Tribunal breached s.414 of the Act. That section provides:

   414   Refugee Review Tribunal must review decisions

   (1)Subject to subsection (2), if a valid application is made under section 412 for review of an RRT‑reviewable decision, the Tribunal must review the decision.

   (2)The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under subsection 411(3).

4. In that regard, I am not persuaded that the evidence supports an inference that the applicant provided the Tribunal with any information which had not been before the delegate. Consequently, it is not surprising that the Tribunal’s considerations were limited to the information which had failed to satisfy the delegate that the applicant was entitled to protection. Although the Tribunal unsurprisingly reached the same decision as the delegate, it did so as a result of its own consideration of the available material. I find that it did conduct a review as required by s.414 of the Act.

Ground 2

1. The burden of the second ground of the application was that the Tribunal failed to apply the relevant tests when determining the applicant’s Convention-based claims.  A reading of the Tribunal’s decision indicates that it had an understanding of the Convention, even if it did not go into a lengthy discussion of it.  Presumably that was because the question of the Convention’s operation and application never really arose as the applicant was disbelieved on the facts.  As his claims were not believed, the question of serious harm befalling him in India for the reasons he advanced also did not arise. 

Ground 3

1. The third ground of the application alleged that the Tribunal erred by not making inquiries of the applicant or into his case.  As to the former contention, the Tribunal was not required to invite the applicant to provide information or arguments which he had failed to provide on his own initiative.  As to the latter contention, the Tribunal’s obligation to make inquiries is limited to a narrow range of circumstances, none of which were present in this case.

2. The Tribunal was not required to “request more information” and so this ground fails. 

Allegation at hearing

1. In his submissions at the hearing of this application the applicant submitted that he had wanted to make submissions to the Tribunal and that the Tribunal had not given him any “other” opportunity to give evidence. 

2. The applicant did not suggest why the Tribunal should have rescheduled its hearing or appointed another hearing date.  Specifically, he did not suggest that notification to him of the hearing scheduled for 17 July 2013 was defective in any way or that he had asked the Tribunal for a further date. 

3. The applicant has not shown that the Tribunal’s decision to proceed to a decision without hearing from him was made in error.

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date: 19 March 2014