SZTEU v Minister for Immigration & Border Protection

[2014] FCCA 149

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTEU v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 149

Catchwords:
MIGRATION – Refugee Review Tribunal.

PRACTICE & PROCEDURE – Whether applicant raised an arguable case for relief claimed – application dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth).

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), Pt8.Div2, ss.91R, 189
Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13

Cases Cited:
Abebe v Commonwealth of Australia (1999) 197 CLR 510
SZJSB v MIMIA [2004] FCAFC 225
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

Applicant: SZTEU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1932 of 2013

Judgment of: Judge Emmett

Hearing date: 4 February 2014

Date of Last Submission: 4 February 2014

Delivered at: Sydney

Delivered on: 4 February 2014

REPRESENTATION

The applicant appeared in person with the assistance of a Tamil interpreter

Solicitor for the Respondents: Ms Katherine Hooper
(DLA Piper)

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 1932 of 2013

SZTEU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”), the applicant seeks judicial review of a decision of the Refugee Review Tribunal dated 16 July 2013 and handed down on 17 July 2013 (“the RRT”).

2. The first respondent seeks an order pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), that the proceeding before this Court, commended by way of application on 19 August 2013, be dismissed on the basis that the applicant has not raised an arguable case for the relief claimed.

3. Rule 44.12 of the Rules provides as follows:

   “(1)  At a hearing of an application for an order to show cause, the Court may:

   (a)  if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

   (b)  if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c)  without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

   (2)  To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”

4. Relevantly, r.44.13 of the Rules provides:

   “(1)  At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”

5. On 8 November 2013, the applicant attended a directions hearing before me. I explained to the applicant that this Court has no power to interfere with the decision of the RRT, unless the Court is satisfied that the RRT’s decision is affected by a mistake going to the jurisdiction of the RRT. I also explained to the applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court.

6. At the directions hearing, the applicant was provided with a copy of the applicable costs schedule of the Court and I explained to the applicant the consequences that would flow to him if a costs order was made against him. Namely, that whilst any costs order remains unpaid, it becomes a debt to the Commonwealth of Australia. As such, the applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected.

7. The applicant confirmed that he wished to continue with the 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, by 20 December 2014.

8. At the directions hearing, the applicant was provided with the contact details of legal services providers and interpreting and translating services, in documents headed in his own language. The applicant also elected to participate in the Court’s legal advice scheme, and received free legal advice in accordance with that scheme on 20 November 2013.

9. The first respondent was granted leave at that directions hearing to return the matter to the Court’s list for a show cause hearing pursuant r.44.12 of the Rules after 3 January 2014, on 3 days’ notice to the applicant. On 29 January 2014, the first respondent applied to return the matter to the Court’s list and the matter was listed today for a show cause hearing pursuant to r.44.12 of the Rules.

10. There have been no documents filed by or on behalf of the applicant, either in accordance with the directions made by the Court on 8 November, or otherwise.

11. The applicant was unrepresented before the Court this morning, although had the assistance of a Tamil interpreter.

12. At the outset of the hearing this morning, the applicant sought an adjournment of the hearing, and stated that it was his understanding that the matter was to be heard on 7 November 2014, in accordance with the directions made by me on 8 November 2013.

13. As stated above, in the event of no amended application or other documents being filed by the applicant in accordance with Orders made by me at the directions hearing, the first respondent was entitled to approach the Court to have the matter returned to the list for a hearing, pursuant to r.44.12 of the Rules.

14. The first respondent applied for a show cause hearing on the basis that the grounds of the applicant’s application do not raise an arguable case, that the Court should not be satisfied that the application has raised an arguable case for the relief claimed, and that in the circumstances, the applicant’s proceeding commenced by way of application on 19 August 2013 for judicial review of the RRT’s decision, should be dismissed.

15. In the applicant’s application for judicial review, filed on 19 August 2013, the applicant identified a single ground for review as follows:

    “1. RRT did not accept my main case and the reasons given by the RRT are not with satisfactory evidence.”

16. There is nothing on the face of the RRT’s decision record to suggest that its findings were not open to it on the evidence and material before it, and for the reasons it gave.

17. The grounds for review were interpreted for the assistance of the applicant and he was invited to make submissions in support of the grounds and in support of the application generally.

18. In support of the application, the applicant’s affidavit, sworn on 19 August 2013 and filed on the same date, attached a copy of the RRT’s decision record.

19. The solicitor for the first respondent, Ms Katherine Hooper, tendered a bundle of relevant documents marked ‘Court Book’ and filed on 16 September 2013, which was marked Exhibit 1R.

20. The applicant claims to be a citizen of Sri Lanka and of Tamil ethnicity and Hindu faith.

21. The applicant departed Sri Lanka illegally by boat on 24 March 2012 and arrived at Christmas Island on 11 April 2012. The applicant was detained under s.189(3) of the Act as an irregular maritime arrival and was transferred to Scherger Immigration Detention Centre, where he was interviewed for the purpose of initial entry processing on 6 May 2012.

22. On 1 July 2012, the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”). He was interviewed in relation to this application at Scherger Immigration Detention Centre on 11 July 2012.

23. The applicant claimed to fear harm from the Tamil People’s Liberation Party, primarily because he refused to lend them his truck.

24. On 6 September 2012, a delegate (“the Delegate”) of the Department refused the applicant’s application for a protection visa.

25. On 10 October 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT. 

26. On 17 July 2013, the RRT affirmed the decision of the Delegate not to grant a protection visa.

27. The RRT expressed significant concerns regarding the credibility of the applicant’s claims due to various inconsistencies and unsatisfactory explanations provided by the applicant. The RRT found that the applicant had deliberately fabricated his claims, and did not accept that he was a witness of truth. 

28. The RRT’s decision record discloses that the applicant was invited to attend two hearings, and an opportunity was provided to his migration agent to provide further written submissions, which were also considered.

29. The RRT raised its concerns with the applicant during those hearings, and invited the applicant to respond. The RRT noted the applicant’s responses, but ultimately was not persuaded by those explanations. 

30. The RRT also considered the applicant’s further claims of a fear of harm as a failed asylum seeker who illegally left Sri Lanka. However, the RRT concluded that the applicant was not at risk of serious harm of the nature referred to in s.91R of the Act, for the reasons claimed, or for any other reason.

31. The RRT also considered whether the applicant was entitled to complementary protection. However, in the light of its factual findings, the RRT did not accept that the applicant was at risk of suffering significant harm in Sri Lanka, or that any such harm amounted to significant harm. 

32. The applicant declined to make any submissions in support of his application for judicial review.

33. The applicant’s grounds complain that the reasons given by the RRT were without “satisfactory evidence.” Such a complaint misunderstands the statutory context within which the RRT is required to operate.

34. 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).

35. It is for an applicant to satisfy the RRT, being the relevant decision-maker, that the applicant meets the criteria for being a refugee. As stated in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]:

    “…The proceedings before the [RRT] are inquisitorial and the [RRT] is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The [RRT] must then decide whether that claim is made out.”

36. Section 65(1)(b) of the Act mandates that if the RRT, as the relevant decision-maker, is not so satisfied the applicant must be refused a protection visa. In SZJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15], it was unanimously held by Ryan, Jacobson and Lander JJ that s.65(1) of the Act:

    "…does not require the decision maker to reach a decision to refuse to grant a visa only if a particular matter is established.  Rather, it requires a refusal if the decision maker is not affirmatively satisfied that the criteria for the grant of the visa in question have been satisfied."

37. While I make no final decision as to whether or not the RRT’s decision is affected by jurisdictional error, none is apparent on the face of the decision record. The RRT referred to the relevant law and explored the applicant’s claims with him at two hearings. The applicant was represented by a migration agent and the RRT considered the agent’s submissions. As stated above, there appears to be nothing on the face of the decision record to suggest that those findings were not open to the RRT on the evidence and material before it, including its adverse credibility findings, and for the reasons it gave. No error has been identified by the applicant.

38. On the face of the RRT’s decision record, and in the conduct of its review, there is nothing to suggest that it conducted its review other than in accordance with the statutory regime.

39. In the circumstances, I am not satisfied that the applicant’s application has raised an arguable case for the relief claimed.

40. Accordingly, the proceeding before this Court, commenced by way of application on 19 August 2013, should be dismissed pursuant to r.44.12(1)(a) of the Rules, with costs.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  21 February 2014