SZTJT v Minister for Immigration

[2014] FCCA 689

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTJT & ORS v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 689

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.36, 424AA, 501

SZSRN v Minister for Immigration [2013] FCA 751

First Applicant: SZTJT

Second Applicant: SZTJU

Third Applicant: SZTJV

Fourth Applicant: SZTJW

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2476 of 2013

Judgment of: Judge Driver

Hearing date: 7 April 2014

Delivered at: Sydney

Delivered on: 7 April 2014

REPRESENTATION

The First Applicant appeared in person

Counsel for the Respondents: Ms S Given

Solicitors for the Respondents: Sparke Helmore

INTERLOCUTORY ORDERS

1. Order 3 made on 12 November 2013 is amended as follows:

   Pursuant to Division 11.2 of the Federal Circuit Court Rules 2001 (Cth), the first applicant is hereby appointed litigation guardian for the fourth applicant.

2. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

3. The first, second and third applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2476 of 2013

SZTJT

First Applicant

SZTJU

Second Applicant

SZTJV

Third Applicant

SZTJW

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (Tribunal).  The decision was made on 23 August 2013.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas.

2. There are four applicants, those being the applicant father, the applicant mother and their two children.  The first applicant, the applicant father, claimed protection on the basis of his political beliefs.  The second applicant, the applicant mother, claimed protection on the basis of her kidney disease and her need for dialysis treatment.  The remaining applicants claimed protection as members of the family group of their parents.  The fourth applicant is a minor, and the first applicant was appointed in these proceedings as his litigation guardian. 

3. The first applicant claims to be a Maoist.  He claimed past harm in India on account of his political beliefs.  The Tribunal found those claims to be not credible.  First, the Tribunal noted that the first applicant undertook substantial overseas travel from 2009, which afforded him various opportunities to seek protection.  He did not do so.  Secondly, the Tribunal noted that the applicant claimed to have been looking for protection as early as 2009, but his claims of past harm did not arise until 2011.  Thirdly, the Tribunal did not accept as credible the first applicant’s claim that his political enemies could not locate him.  Fourthly, the Tribunal was concerned about the changing nature of the first applicant’s evidence.  Fifthly, the Tribunal was concerned about inconsistent evidence as between the first and second applicants in relation to their financial circumstances.

4. The Tribunal found that the first applicant was not a credible witness in relation to his political claims.  The Tribunal did not accept that he was a Maoist at any time.  Neither did the Tribunal accept that he undertook activities on behalf of the Maoists as he claimed, including extorting money from people at gun point.  Had the Tribunal been minded to accept those claims, it seems to me that it would have been necessary for the Tribunal also to consider the exclusion clauses in the Refugees Convention[1], and there may also have been an issue concerning the first applicant’s character[2].  The Tribunal found, however, that there was no basis for the first applicant’s claims to fear protection on the basis of his actual, or any imputed political opinion.

   [1] see Article 1F

   [2] see s.501 of the Migration Act 1958 (Cth) (Migration Act)

5. The Tribunal accepted that the second applicant suffers from kidney disease, which requires haemodialysis.  Having considered the available country information, the Tribunal found that appropriate treatment would be available in India.  The Tribunal did not accept that the applicants would be unable to afford that treatment. 

6. The Tribunal also considered the applicants’ claims to complementary protection.  Having rejected the first applicant’s factual claims based on his political opinion, the Tribunal found that he did not qualify for complementary protection.

7. The Tribunal gave substantial consideration to the second applicant’s claims to complementary protection based upon her kidney disease. Again, based upon its factual findings, the Tribunal found that the second applicant would not be arbitrarily deprived of her life in India, nor would any pain or suffering that she may incur in India be intentionally inflicted upon her there. The Tribunal found also that she would not be subject to any act or omission in India which would cause, and be intended to cause, extreme humiliation. The Tribunal found that the act of removal itself would not meet the definition of “significant harm” in s.36(2A) of the Migration Act[3].  For those reasons, the Tribunal affirmed the delegate’s decision. 

   [3] SZSRN v Minister for Immigration [2013] FCA 751

8. These proceedings began with a show cause application filed on 14 October 2013.  The applicants continue to rely upon that application.  The application contains three grounds in general terms:

   1. The Tribunal failed to exercise its jurisdiction under the Migration Act.

   2. The Tribunal made error of law being jurisdictional errors in that it did not put any weight to my request to lodge further documents in support of my claims.

   3. The Tribunal failed to uphold my natural justice.

9. The grounds are repeated in an affidavit which accompanied the application.  I received that affidavit as a submission. 

10. The only evidence I have before me is the court book filed on 26 November 2013. 

11. In procedural directions I gave on 12 November 2013, I gave the applicants the opportunity to file and serve and amended application and additional evidence.  They have not taken up that opportunity.

12. Only the first applicant attended today’s show cause hearing.  I invited him to expand upon the grounds in his application.  He was concerned that the Tribunal placed emphasis on his lack of knowledge of the leader of the Maoist Party.  This was only one of numerous concerns held by the Tribunal about the applicant’s claims and his evidence.  However, it seems to me that the Tribunal’s attention focused more particularly on the Tribunal’s lack of knowledge and the name of the political party which he adhered to.  The problem was not just the leader’s name but also the name of the party[4].

    [4] Tribunal at [24], court book, page 146

13. I asked the first applicant to expand upon the second ground.  He said that he wanted to submit medical documents concerning his wife’s illness.  The Tribunal states at [44] of its reasons[5], that no medical evidence had been submitted about the wife’s alleged illness in India.  However, the Tribunal accepted on the basis of a medical certificate from Concord Hospital that the second applicant suffers from kidney disease requiring haemodialysis.

    [5] court book, page 149

14. The applicants had the opportunity to submit such further documents as they may have wished to following the Tribunal hearing.  In the event, it seems to me that the Tribunal went to significant trouble to research the issue of medical treatment available in India.  That research is footnoted on pages 149 and 150 of the court book.  The applicants’ principal concern in relation to the second applicant’s illness is their asserted inability to afford necessary health care in India.  The Tribunal found that appropriate treatment would be available at an annual cost of approximately A$3,000.  The Tribunal found that the applicants would be able to afford that treatment.  I see no error in relation to the Tribunal’s approach to that issue. 

15. At [34] of its reasons[6], the Tribunal recounts disclosure of adverse information pursuant to s.424AA of the Migration Act. This related, in particular, to inconsistencies between what the applicants had put on their visitor visa applications and what they had said in their protection visa applications. The applicants have not, in these proceedings, raised any issue in relation to that disclosure. I have no transcript of the hearing before the Tribunal and, hence, am not able to consider in detail the sufficiency of the Tribunal’s compliance with the statutory obligation. It appears, however, that the Tribunal was alive to its potential obligation of disclosure and sought to comply with it.

    [6] court book, page 148

16. The Tribunal also considered at [25]-[28] of its reasons[7], apparent changeability and inconsistency in the first applicant’s evidence, both before the Tribunal and before the delegate. It is not clear whether the Tribunal went through any process of purported disclosure pursuant to s.424AA in relation to that consideration. Neither, however, is it apparent that such disclosure was required. The issue appears to have been one of changeability of evidence and inconsistency between various pieces of evidence. The Tribunal appears not to have regarded anything said to the delegate as adverse in itself.

    [7] court book, page 146

17. I am not persuaded that there is any arguable case of jurisdictional error by the Tribunal. I will order that the application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

18. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the court scale.  The first applicant indicated through the interpreter that he had no quarrel with such an order.

19. I will order that the first, second and third applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  11 April 2014