SZTGX v Minister for Immigration

Case •

[2014] FCCA 1847

•

21 July 2014

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTGX & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1847
Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal – alleged failure to afford the applicants procedural fairness – allegation of bias – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 414, 424A, 425, 429A, 476

Federal Circuit Court Rules 2001 (Cth)
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12; (2004) 78 ALJR 992
Minister for Immigration and Citizenship v SZIAI & Anor [2009] HCA 39; (2009) 259 ALR 429
Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
First Applicant: SZTGX
Second Applicant SZTGY
First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 2178 of 2013
Judgment of: Judge Nicholls
Hearing date: 21 July 2014
Date of Last Submission: 21 July 2014
Delivered at: Sydney
Delivered on: 21 July 2014

REPRESENTATION

Applicants: First applicant in person and on behalf of second applicant
Appearing for the Respondents: Ms S Given
Solicitors for the Respondents: Sparke Helmore

ORDERS

  1. The application made on 16 September 2013 is dismissed.

  2. The applicants pay the first respondent’s costs set in the amount of $6,000.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2178 of 2013

SZTGX

First Applicant

SZTGY

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

  1. I have before me today an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 16 September 2013 which seeks review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 16 August 2013, which affirmed the decision of the Minister’s delegate to refuse protection visas to the applicants.

Background

  1. Before me in evidence is the Court Book (“CB”) which is a bundle of relevant documents filed by the Minister. The following background can be derived from that material.

  2. Both the applicants before the Court are citizens of India, and are husband (“the applicant”) and wife (“the applicant’s wife”) (CB 1, CB 13 and CB 27). They arrived in Australia on 3 April 2012 as visitors (CB 13). They applied for protection visas on 18 May 2012 (CB 1 to CB 32). Only the applicant made any claims to protection. The applicant’s wife applied as a member of his family unit (CB 26 to CB 32). 

  3. The applicant’s claims to protection were initially set out in a written statement that accompanied the application for the protection visa (CB 33 to CB 35).

  4. The applicant claimed to fear harm if he were to return to India because he had borrowed money from a money lender who subsequently threatened him, or caused threats to be made to him when he was unable to make the necessary repayments in 2009 (CB 33 to CB 34). Further, the applicant provided a copy of an Indian Court document in support of his claims (CB 58 to CB 69). The document appears to be a complaint filed by the applicant with an Indian Court concerning dealings with the money lender. The applicant also made claims in an interview with the Minister’s delegate (CB 80).

  5. The delegate refused the grant of the visas on 18 October 2012 (CB 71 to CB 86). The applicants applied for review to the Tribunal on 14 November 2012 (CB 87 to CB 92). I note that, although both applicants were invited to the hearing, only the applicant attended. He gave evidence, initially by video link and then by telephone (CB 102 to CB 103).

  6. The Tribunal accepted that the applicant had owned and operated a jewellery business, had some difficulties, borrowed money from a money lender, and was unable to make the required repayments from about March 2009 ([49] at CB 113 to CB 114). However, the Tribunal rejected the applicant’s claims regarding the harm he said he suffered as a result of this inability to make the repayments, and rejected his claim that he would suffer harm on return ([50] at CB 114).

  7. The Tribunal did so on the basis of a number of adverse credibility findings that it made, and these included inconsistencies between the applicant’s written statement and oral evidence to the Tribunal


    ([51] – [53] at CB 114). Further, the Tribunal found that the Indian Court document that the applicant had provided was not genuine ([58] at CB 115), and in any event, relied on inconsistencies between that document and the applicant’s oral evidence ([58] – [61] at CB 115).

  8. The Tribunal rejected the applicant’s factual assertion that he had been physically harmed or threatened, and further rejected that there was a real risk that he would be harmed, in the reasonably foreseeable future, if he were to return to India ([66] – [68] at CB 116).

Application Before the Court

  1. The application before the Court, made on 16 September 2013, has five grounds as follows:

    “1. The Tribunal denied the applicant procedural fairness by reaching adverse conclusions that certain aspects of his claims were implausible, being conclusions that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.

    2. The Tribunal’s decision was unjust and made without taking into account the full gravity of applicant’s circumstances and consequences of claims. The Tribunal did not consider the applicant who had been under immense and intimidating pressure from Money lender, not able to access effective protection because of his affiliation with Congress party.

    3. The tribunal had no jurisdiction to make the said decision because its ‘reasonable satisfaction’ was not arrived in accordance with the provisions of the Migration Act.

    4. The applicant satisfy the key elements of Convention definition as detailed in page 2,3 and 4 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.

    5. The Tribunal failed to investigate applicant claim, specially grounds of persecution in India. Therefore, the Tribunal decision dated 19 August 2013 was effected by actual bias constituting judicial error.”

    [Errors in the original.]

Before the Court

  1. At the hearing today, the applicant appeared in person.  He was assisted by an interpreter in the Gujarati language. Ms S Given appeared for the first respondent. The applicant’s wife did not appear. The applicant explained that she knew that he was coming to Court today, and that he would speak on her behalf. Before the Court were written submissions filed by the Minister. The applicant had filed nothing further in support of his application.

  2. The applicant was put on notice at the first Court date in this matter that, in effect, the Court could only be concerned with whether there was any legal error on the part of the Tribunal in its decision record. However, the applicant’s only complaint before the Court today reveals that he has not understood the nature of the proceedings that he has sought to institute. 

  3. The applicant explained he understood the Tribunal’s decision, but that he would nonetheless face difficulties if he were to return to India. He said that he had come to Court to “get a visa”. As I sought to explain to the applicant, the Court has no power to grant him a visa. That is, it is not within the Court’s jurisdiction to grant him a protection visa.

  4. Further, to the extent that it may be said that the applicant’s complaint about the Tribunal’s decision was really a complaint about the findings and conclusion arrived at by the Tribunal, then the Court has no power in the circumstances to intervene and substitute its own findings for those of the Tribunal (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”).

  5. Nothing that the applicant has said today before the Court, therefore, suggests jurisdictional error on the part of the Tribunal, let alone makes any attempt to make it out.

Consideration

  1. Turning to each of the grounds of the application before the Court. Ground one asserts a denial of procedural fairness. There appear to be two elements to this complaint. First, that the Tribunal’s findings were not reasonably open to the Tribunal to make. That is, it was not open to the Tribunal to make adverse findings in relation to his evidence. Second, that the applicant was not given the opportunity to comment in respect of the Tribunal’s findings. 

  2. In relation to the first element, the applicant has not explained to the Court why he says the Tribunal’s findings were not reasonably open to it to make. The Tribunal’s analysis, as set out in its decision record, reveals that its findings were reasonably open to it on what was before it (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407). The Tribunal gave reasons for its findings and conclusions, which were probative of the material which had been placed before it.

  3. In these circumstances, the applicant’s complaint in ground one is an attempt to challenge the Tribunal’s adverse credibility findings. Such findings of fact in the circumstances were made in the jurisdiction that the Tribunal had been given. The applicant’s ground, therefore, seeks impermissible merits review by this Court (Wu Shan Liang). 

  4. The Tribunal is under no obligation to uncritically accept any aspect of the applicant’s claims or evidence (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437). An analysis of the applicant’s evidence, that is the weight to be assigned to his evidence, is a matter for the Tribunal as the relevant finder of fact, and is within the proper exercise of its jurisdiction.

  5. The second element, that the applicant was not given an opportunity to comment in respect of the Tribunal’s findings, similarly cannot be made out. The evidence reveals that the applicant and his wife were invited to a hearing before the Tribunal pursuant to s.425 of the Act. As stated above, it appears that the applicant wife did not take up the opportunity provided to her to attend. However, the applicant certainly took that opportunity (CB 102). Although he was not physically present at the same location as the Tribunal member, the Tribunal conducted the hearing using the communication methods available to it, pursuant to s.429A of the Act.

  6. There appear to have been some difficulties with the video link. It appears that, from the material before the Court, that the applicant was physically in the Magistrates Court office in Mildura, which was close to where he then lived. Nonetheless, the Tribunal completed the hearing by use of telephone (CB 103):

    “Bat phone used as a better alternative.”

  7. In any event, both methods of communication are methods allowed pursuant to s.429A of the Act. Importantly the applicant has not complained, let alone provided any evidence, that he was denied the opportunity to be heard because of the use of the communication methods as allowed by s.429A of the Act or any difficulties with the video link connection.

  8. At the directions hearing in February of this year, I made a number of orders which gave the applicant the opportunity to file any evidence in support of his grounds. Relevantly, the applicant has not filed any evidence or any transcript of the Tribunal hearing to support his claim that the Tribunal did not give him a meaningful opportunity to address the case put against him. The only account, in evidence before the Court, of what occurred at the Tribunal hearing is the Tribunal’s own account, as set out in its decision record. That account reveals that the issues dispositive of the review were discussed at the hearing, such that the applicant was on notice of them (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152).

  9. The evidence before the Court also reveals that the Tribunal gave the applicant the opportunity, on a number of occasions during the hearing, as to whether he wanted it to conduct another hearing. The Tribunal’s reported several references of another hearing opportunity to the applicant were put to ensure that the applicant was content with the conduct of the hearing. He declined that offer.

  10. In all the circumstances, there is no evidence before the Court to say that the applicant was denied a meaningful opportunity to give his evidence and present his case. In any event, it appears that the focus of the complaint by the applicant in ground one is that the Tribunal did not give him the opportunity to comment on the adverse views the Tribunal had reached in relation to certain aspects of his claims.

  11. However, contrary to that complaint, the Tribunal’s account reveals that the matters adverse to the applicant were put to him for comment at the hearing. In these circumstances, the Tribunal was not obliged to give the applicant a further opportunity or, indeed, to seek comment on a draft of its ultimately published reasons [neither s.424A or s.425 of the Act reveal any obligation on to Tribunal to do so]. In all, ground one is not made out.

  12. Ground two asserts that the Tribunal’s decision was “unjust” because the Tribunal did not accept that he had been under “pressure” from the money lenders. In the circumstances, it seeks to cavil, or take issue with the Tribunal’s conclusion that the applicant's claims did not satisfy either of the criteria at s.36(2) of the Act for the grant of a protection visa. As such, it mirrors the applicant’s complaint before the Court today, that the Tribunal did not find in his favour, such that he would be given the visa. Ground two, therefore, is also not made out as it also seeks impermissible merits review by this Court.

  13. Ground three lacks any particularity and is formulaic in expression. The applicant was unable to assist the Court to explain the exact complaint that he purports to make at ground three. There is nothing before the Court to indicate that the Tribunal failed to conduct the review, as it was required to do, pursuant to s.414 of the Act, or that any of its obligations set out in Division 4 of Part 7 of the Act were not met.

  14. To grant the visa the Tribunal was required to reach the requisite level of satisfaction that the applicant, amongst other matters, satisfied one of the criteria at s.36(2) of the Act. The Tribunal explained why it could not do so. It made findings reasonably open to it. At its highest, the ground, again, seeks to express the applicant's grievance with the fact that the Tribunal found adversely to him. This does not reveal jurisdictional error on the part of the Tribunal. Ground three is not made out.

  15. Ground four is similarly formulaic. There is nothing in the material before the Court to say that the Tribunal misunderstood, or misapplied, the relevant law in conducting its task. As the applicant said to the Court today, he believes, and contrary to the Tribunal’s finding, that he satisfied the elements of the Refugees Convention of a refugee, and met the criteria for the grant of the protection visa. Plainly, ground four is another repetition of that assertion made variously and dealt with earlier in this judgment. That is, again, the applicant has expressed dissatisfaction with the Tribunal’s decision without making any assertion of legal error on its part. As such, ground four is not made out.

  16. Ground five has two elements. First, that the Tribunal failed to investigate his claims in India. It is not clear as to whether the applicant means that the Tribunal should have made inquiries with some unknown or unspecified person, or persons, in India. There is nothing in the material before the Court to indicate that he asked the Tribunal to make any such inquiry.

  17. In any event, as the Minister submits, it is for the applicant to make out his claims before the Tribunal. There is no general duty on the Tribunal to make further inquiries if it cannot reach the requisite level of satisfaction, such that ultimately the protection visa may be granted (Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12; (2004) 78 ALJR 992). Nor has the applicant pointed to any obvious inquiry about a critical fact in issue, and easily ascertained, that the Tribunal should have made (Minister for Immigration and Citizenship v SZIAI & Anor [2009] HCA 39; (2009) 259 ALR 429 at [25]).

  18. The second element of ground five is an assertion of actual bias. I agree with what the Minister said ([16] of the Minister’s written submissions):

    “…The applicants have made no attempt to meet the proposition that in order to make out this serious allegation it should be distinctly made and then clearly proven.” 

  19. It is the case that an application in these circumstances must show some conduct on the part of the Tribunal, as the relevant


    decision-maker, an expression of its reasons which would indicate that the Tribunal has been guilty of pre-judgment or was, in any way, biased (Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507, SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 at [43] per Tamberlin, Mansfield and Jacobson JJ, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425). It is a rare case that bias can be made out with reference only to the Tribunal’s published reasons (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J). Again, what is left is that the applicant’s assertion of actual bias, on the part of the Tribunal, is an expression of the applicant’s grievance that the Tribunal did not find in his favour notwithstanding what he had put to it. In all, ground five does not reveal any jurisdictional error on the part of the Tribunal.

Conclusion

  1. In all, I cannot see any jurisdictional error in what the Tribunal has done. No jurisdictional error arises from the applicant’s grounds, the applicant’s complaint, nor otherwise in the material before the Court. It is appropriate that the application be dismissed. I will make an order accordingly.

  2. The first respondent has made an application for costs. The first question is whether it is appropriate to make an order for costs in this case. I note, in that regard, that the principle that is usually applied is that costs follow the event.  That is, that a successful party should be able to receive some recompense for any legal costs that have been properly incurred. In the circumstances of this case, I can see nothing that would argue against the making of the order in the usual way. I note the applicant’s statement today that the amount is “very big” and that he is unable to pay. However, a lack of funds and a difficulty in payment are not sufficient reasons such as not to make the order.

  1. As to the amount, the Court must be guided by what is reasonable in all the circumstances. In the current case, I note that the amount sought by the Minister is below the amount that is set out in the relevant Schedule to the Federal Circuit Court Rules 2001 (Cth) as being indicative of what is reasonable for a matter of this type. Further, I am otherwise satisfied, having regard to the work that has actually been done by the Minister’s legal representatives, that the amount sought is a reasonable amount in the circumstances.

  2. I did consider whether the order for costs should be made as against the applicant’s wife, as well as the applicant. The applicant’s wife appears to have taken no “active” part in these proceedings. She has not appeared before the Court. However, I have no reason not to accept the applicant’s statement made today, that his wife knew of his presence in Court today, and that he would speak for her. In accepting the applicant’s submission, I am satisfied that the applicant’s wife sought to have her interests pursued through this application, and it is therefore appropriate that the order be made in respect of the applicant’s wife as well.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  18 August 2014

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Cases Citing This Decision

2

SZVMQ v Minister for Immigration [2015] FCCA 3325
SZTGX v Minister for Immigration and Border Protection [2014] FCA 1201