SZTKG v Minister for Immigration
[2014] FCCA 1473
•11 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTKG v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1473 |
| Catchwords: MIGRATION – Review of a decision by the Refugee Review Tribunal – whether or not there has been jurisdictional error. |
| Legislation: Judiciary Act 1903 (Cth), s.39B Migration Regulations 1994 (Cth) r 2.01. Federal Circuit Court Rules 2001 (Cth) Schedule 1 |
| Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 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 Waterford v The Commonwealth (1987) 163 CLR 54 Reg v The District Court; Ex parte White (1966) 116 CLR 644 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 |
| Applicant: | SZTKG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2517 of 2013 |
| Judgment of: | Judge Kemp |
| Hearing date: | 6 June 2014 |
| Date of Last Submission: | 6 June 2014 |
| Delivered at: | Sydney |
| Delivered on: | 11 July 2014 |
REPRESENTATION
| Applicant: | Self Represented |
| Solicitors for the First Respondent: | DLA Piper Australia |
| Solicitors for the Second Respondent: | Sparke Helmore Lawyers |
THE COURT ORDERS THAT:
The applicant’s application filed 16 October 2013 be dismissed.
The applicant pay the first respondent’s costs in the sum of $6,324.20 within 60 days.
The matter is, otherwise, removed from the active pending cases list.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2517 of 2013
| SZTKG |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 16 October 2013 by SZTKG (“the applicant”) 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 (“the RRT”)(the second respondent) dated 26 September 2013 (“the decision”) naming the Minister for Immigration and Border Protection as the first respondent.
The applicant is a male citizen of India, and states that he fears harm if he returns to India, on a number of bases, namely:
a)That he was a Sikh from a religious family, but had been rejected by his father and told not to return to India after he had told his parents in June 2012 that he had converted to Christianity in 2011. The applicant also claimed that his father had informed him that he would not have a home in India and threatened to seriously harm and even kill him.
b)That 3 men he stabbed in self-defence in Australia (for which he was acquitted in June 2012), came from the same district in Rajasthan in India and had family and brothers in India that wanted to kill him for being “let off” for the stabbing, and also due to his conversion to Christianity (news of which, the applicant claimed, had already spread to Rajasthan).
c)That at the departmental interview, his agent summarised the applicant's claims, noting that the applicant feared return to India as a Christian and will be harmed as a result of damaging his family's reputation, that Christians are a minority in India and many churches have been burned down, that the applicant is fearful of the men he stabbed and their family as they have connections with a corrupt police force and can use their influence to harm the applicant, and that the applicant cannot relocate in India as he has no real connections elsewhere.
d)That before the RRT, he raised that he was bisexual and had been harmed for this reason in the past and would be harmed if returned to India.
The RRT did not accept that if the applicant was to return to India now or in the reasonably foreseeable future, there was a real chance that he would be seriously harmed for the reason of his race, religion, nationality, political opinion or membership of any particular social group, so as to satisfy the refugee criterion in s.36(2)(a) of the Act and, accordingly, the RRT was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under the Refugee Convention (“the Convention”).
The RRT was further, not satisfied that it had substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there was a real risk that he would suffer significant harm, so as to satisfy the refugee criterion in s.36(2)(aa) of the Act and, accordingly, was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under the Convention.
The RRT further recorded that there was no suggestion that the applicant satisfied the refugee criterion in s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfied s.36(2)(a) or (aa) and who holds a protection visa.
The RRT, in the circumstances of 3, 4 and 5 above, affirmed the decision of the Delegate of the first respondent (“the Delegate”) in refusing to grant the applicant a Protection (Class XA) visa under s.65 of the Act.
Background
The applicant arrived in Australia on 26 April 2009 having departed legally from India on a passport (document number G250055L) issued in his own name and on a student visa issued 14 April 2009.
The applicant was born on 30 June 1989 and is, at the time of hearing, aged 24 years.
On 23 April 2013, the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Border Protection (“the Department”). The applicant records his relationship status as divorced in 2011. The applicant had lodged two prior applications for a protection (Class XA) visa on 7 June 2012 and 3 September 2012 which were both considered invalid by the Department. In those prior applications, the applicant claims to have married an Australian citizen, Susan Ann Kavanagh on 16 April 2010 in Dubbo, New South Wales and that she has “refused to come with [him] to India”. Nothing turns on this with respect to his current application.
On 11 July 2013, the Delegate refused the applicant’s application for a protection visa.
On 15 July 2013, the applicant lodged an application for review of the Delegate’s decision by the RRT.
On 17 September 2013, the applicant gave oral evidence at a hearing before the RRT.
On 26 September 2013, the RRT made its decision and affirmed the decision of the Delegate not to grant the applicant a protection visa.
On 16 October 2013, the applicant filed an application in this Court seeking judicial review of the RRT’s decision.
The first respondent filed its response on 31 October 2013 seeking orders that the applicant’s application be dismissed with costs.
The second respondent filed a submitting appearance on 30 October 2013 submitting to any order of the Court, save as to costs.
Legislative framework
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).
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”).
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.”
Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.
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.”
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.
The requirements of the natural justice hearing rule are stated in Division 4 of Part 7 of the Act. Division 4 Part 7 includes ss.424A and 425, which provide that:
“424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.
425 Tribunal must invite Applicant to appear
(1) The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”
Section 424AA of the Act permits the RRT to give orally to an applicant clear particulars of any information that the RRT considers would be the reason or part of the reason for affirming the decision under review. The RRT must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The RRT must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.
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.
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
The applicant provided a documentary statement in support of his protection visa application by way of a statutory declaration completed on the letterhead of BMA Lawyers and prepared by Jagrup Pangly, a registered migration agent 1276962 and legal practitioner, in which the applicant stated:
a)That he was a 23 year old male, born in Vijaynagar, Rajasthan in India of Punjabi ethnicity and of Christian faith.
b)That the document provided a summary of his claims which were not exhaustively stated and that further information would be provided in his interview with the Department.
c)That his parents and younger brother continue to reside in India and that he had been previously married and divorced in 2010. [This date is inconsistent with that set out in paragraph 9 above]
d)That after his arrival in Australia in April 2009, “all [his] problems started”.
e)In 2011, he embraced the Christian faith and that Christians continue to be persecuted in India as a minority.
f)In June 2012, he informed his parents about his conversion to Christianity. He says that given that his family were “quite religious” and his grandfather was the head of the local gurdwara (Sikh place of worship), his act of conversion was akin to committing a sin and he was told by his father not to return to India. His father threatened to seriously harm him and even kill him.
g)In June 2012, he was acquitted of stabbing 3 men on the grounds of self-defence. Those men were from the same district in Rajasthan as the applicant and were aware of his conversion to Christianity and had spread the news in Rajasthan of his conversion. That the “brothers and family of those men in India were already wanting to kill [him] for having injured their brothers and having been found innocent”. That in accordance with the Punjabi culture, these people would seek retribution against him by torturing and killing him to honour their reputation. That he was aware that these men had been “previously involved in violence in India” and that he was, therefore, “aware of their capabilities”.
h)That he was fearful of the community in Rajasthan including the family of the men identified in (g) above, his own family (having a “really bad relationship with [his] father”) and other non-Christian Indians.
i)That the Indian government could not protect him in India as “they are all involved in corruption and bribery”.
j)That he could not relocate to any other area in India because as a Christian and a convert from Sikhism he would be persecuted and relocation was not easy in India without family support (which he no longer has) and he has no stable connections to any other area or the capability of living anywhere else.
k)That he had lodged a prior protection visa application in 2012 with the assistance of a migration agent but that when he had realised the application contained a different story than that which he now claimed, he did not proceed to complete the mandatory fingerprints and, therefore, his application was returned as invalid.
l)That he was proficient in the English language and did not require the assistance of an interpreter or translator in having the contents of his statutory declaration read out to him.
The Delegate’s decision
On 10 May 2013, the applicant attended an interview with the Delegate.
On 11 July 2013, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant was not a person to whom Australia has protection obligations under the Convention and did not meet the alternative complementary protection criterion.
The RRT review and decision
On 15 July 2013, the applicant lodged an application for review of the Delegate’s decision by the RRT.
On 12 August 2013, Parish Patience Immigration Lawyers advised the RRT that they were then appointed as the applicant’s representative and authorised recipient.
On 14 August 2013, BMA Lawyers advised the RRT that they had ceased acting for the applicant as he had found alternative legal representation.
On 2 September 2013, Parish Patience Immigration Lawyers advised the RRT that the applicant had withdrawn his previous authorisation for them to act as his representative and appointed Mr Alosio Waininau, Pastor, of the Hillsong Church to be his representative/authorised recipient. There is nothing before the Court to indicate Mr Waininau was competent to represent the applicant and nor did he do so.
The decision of the Tribunal
The RRT found that the applicant was not a truthful, reliable or credible witness [50] (being the paragraph references in the RRT’s decision as referred to in paragraph 46 below). The RRT based this adverse credibility finding on a number of matters, as set out at paragraph references [29] - [49], in particular:
a)The RRT found that the applicant's claim (raised for the first time at the hearing) that he was bisexual and had been harmed for this reason in the past, and would be harmed if he returned to India, had been fabricated.[29]
b)The RRT found that the applicant had provided conflicting and changing evidence at the hearing in relation to when he discovered he was bisexual and when his father discovered that the applicant was bisexual and when he claimed he had been evicted from the family home as a result of that discovery. The RRT did not accept the applicant’s explanation that he had an inability to provide any dates and that he had memory problems. The RRT held that the applicant's conflicting and changing evidence further indicated that this claim and evidence was a fabrication [31].
c)The RRT found that the applicant had provided contradictory, developing and/or implausible evidence concerning where he lived in India and for how long [32] - [33]. The RRT was also concerned that the evidence given at the hearing was internally inconsistent and was inconsistent with his Protection visa application [33].
d)The RRT noted that the applicant had been living his own life, defiant of his family’s wishes and his religion and yet his family continued to pay for him to live in the same town and they did not cause him any harm. The RRT also noted that the applicant had then raised for the first time at the hearing that his family had continuously, seriously harmed him due to the applicant's defiance of the Sikh religion, causing him injuries, approximately 70 - 80 times during the five years prior to the applicant coming to Australia. The applicant had initially said he couldn’t remember how many times this harm had occurred. The RRT was of the view that the applicant had made this claim up in answer to questions it had asked the applicant [34-38] and that it would have expected the applicant to have mentioned this continuous harm in his statement in support of his Protection visa application and in his interview with the Delegate, if it had occurred.
e)The RRT found that the applicant had fabricated his claim of being attacked by the community when it was discovered in India that he was bisexual. The RRT based this finding on the contradictory, developing and/or implausible evidence about his claimed bisexuality, which was raised for the first time before the RRT [40].
f)The RRT expressed concerns with respect to the applicant's desire to return to India in 2011 given he claimed to be aware at the time that his father, grandfather and the people he stabbed in Australia ‘would not let him live’ and considered his then willingness to return was indicative that the claimed circumstances did not exist [41].
g)The RRT noted that the applicant's Baptism certificate from a Hillsong church dated 19 May 2013 (9 days after his interview with the Department), was obtained for the purposes of his claims and not because he is a genuine Christian/Catholic/Hillsong follower [46].
h)The RRT’s concerns about the applicant’s claimed devotion and conversion to Christianity were heightened by the applicant’s vague and changing evidence about when he started going to church and how long it took him to make the decision to convert [47].
i)The RRT was also concerned about the delay in the applicant applying for protection, noting that he arrived in Australia in April 2009, but did not make enquiries about claiming protection until May 2012 [48-49].
The RRT considered various documents submitted by the applicant, at paragraph references [6], [23], [37], [43], [45]-[46], [52]-[53], [60] in its decision and recorded its conclusions as follows:
a)It accepted on the basis of those documents that the applicant had been baptised in a Hillsong church on 19 May 2013 and he has attended church services since he was detained.
b)It accepted that the applicant stabbed up to three Indian persons, that he was charged on 26 April 2012, and that he was acquitted on the basis of self-defence in June 2012.
c)It did not accept that the applicant had read the Bible, attended services, or had been baptised other than for the purposes of strengthening his claims for protection.
d)It gave no weight to the two letters from Father Paul McGee and Pastor Alosio Waininau, which were provided to the RRT by the applicant at the hearing, in light of its adverse credibility finding.
e)It accepted that the applicant had lived with his family at the family home without wearing a turban and whilst cutting his hair, before he came to Australia, which acts were contrary to the strict Sikh faith, but notwithstanding that, the applicant had not been subjected to any harm or rejection by his family or the community due to his lack of strict adherence to the Sikh faith.
f)It did not accept that the applicant was a bisexual in India, or at all, that his father or the community discovered he was bisexual and as a result harmed him, or that he was forced to come to Australia because of his bisexuality [57].
g)It did not accept that the applicant had converted, nor that the three men he stabbed wanted revenge for that reason. Due to the adverse credibility finding, the RRT did not believe that the applicant feared revenge from these men [61 -63].
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
On 5 February 2014, the applicant attended a directions hearing in this Court before Judge Barnes. On that day, the following orders and directions were made:
1The Applicant file and serve any affidavit containing additional evidence relied upon, including any transcript of the Tribunal hearing, and any amended application setting out each ground of review relied upon and complete particulars by 2 May 2014.
2The First Respondent file and serve any affidavit evidence by 16 May 2014.
3Apart from the Court Book, all evidence relied upon by a party must be in the form of an affidavit. Any party wishing to rely on the evidence of a Refugee Review Tribunal hearing must file and serve a copy of a transcript of that hearing annexed to an affidavit.
4All documents required to be filed must continue to be filed at the Registry of the Court, which is located at Level 17, Law Courts Building, Queens Square, Sydney.
5A show cause hearing pursuant to Rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) is hereby dispensed with.
6The Application is listed for final hearing at 10:15am on Friday 6 June 2014 ... Estimated length of hearing is two hours.
7The Applicant must file and serve a written outline of submissions and any list of authorities 14 days before the final hearing.
8The First Respondent must file and serve a written outline of submissions and any list of authorities 7 days before the final hearing.
9Any party who is represented at the time of the hearing must provide the Court with copies of any cases relied upon or legislation referred to, other than the Migration Act 1958 (Cth).
10Either party has liberty to apply to the Court for a listing for further directions. The other party must be given 3 days clear notice of the time, date and place of that listing.
11Costs of today are costs in the proceedings.
The applicant was self-represented before this Court and appears by video link from this Court’s Perth, Western Australia Registry.
The first respondent was represented at the hearing by Ms Ardita, solicitor.
The applicant confirmed that he required the assistance of an interpreter in the Hindi language and such assistance was provided by Ms Bindiya Manchanda.
On 6 June 2014, at the commencement of the hearing, the applicant then sought an adjournment for approximately 2 weeks in order to get legal representation stating that his “life [is] threatened, and if I go back they will kill me, so I am desperate to get a lawyer because it is a matter of life”. The first respondent opposed the adjournment on a number of bases including that the applicant had not, at any earlier point alerted the first respondent to his proposed application and that the first respondent had incurred substantial costs in preparing for the hearing on the basis that it would proceed and the matter was listed for final hearing that day.
The Court refused the applicant’s oral application for an adjournment and gave its oral reasons for so doing, and then commenced the hearing.
On the hearing in this Court, the applicant confirmed that:
a)He had not filed any amended application;
b)He relied on the grounds contained in his application filed 16 October 2013 and set out in paragraphs 45 and 46 below;
c)He had filed on 16 October 2013 and served an affidavit sworn/affirmed on 15 October 2013 attaching the decision record of the RRT;
d)He had not filed any further affidavit evidence in support of his application;
e)He had no further documents to present to the Court in support of his application;
f)He had no further written submissions in support of his application;
g)That he had had access to the documents contained in the Court Book filed 8 November 2013, being Exhibit Court “1”.
h)That no transcript of the RRT hearing had been provided to the Court and that he did not suggest that the RRT’s decision record was not accurate.
The Court accepts as accurate the RRT’s decision record (pages 238 to 254 of Exhibit “Court 1”) as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (see NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).
The Court had each of the grounds relied upon by the applicant interpreted for the applicant and the applicant was invited to make any oral submissions in support of those grounds and in support of his application generally.
The Court sets out the applicant’s identified grounds as follows:
a)Ground 1: There are some jurisdictional errors in the RRT’s decision;
b)Ground 2: The RRT member did not assess [his] claim for complementary protection properly;
c)Ground 3: The RRT deprived [him] of natural justice;
d)Ground 4: Trying to send [him] back home will result in jeopardising [his] life, putting [him] into a life threatening situations, being physically harmed, mentally tortured and emotionally unstabled [sic] for the rest of [his] life;
e)Ground 5: The RRT member made an error of law since the decision the RRT member made regarding [his] case is wrong.
f)Ground 6: The RRT member made an error of law for not considering any relevant documents which are important in [his] case;
g)Ground 7: The situation had [he] had to go back home would be very critical and life threatening to [himself] also [he] will be tortured for the rest of [his] life;
h)Ground 8: The RRT member made an error of law by not considering evidence[s] which were significant and critical to the decision under review; and
i)Ground 9: He attached a newspaper article [stabbing in “self-defence” reported in the Daily Mercury on 6 June 2012] which comprehends that people are waiting to persecute [him] if he happened to be sent back home.
In respect of each of the above identified grounds, the applicant in his oral submissions stated:
a)Ground 1: I rely on the article from the Daily Mercury [dated 6 June 2012] in Exhibit “Court 1” being the newspaper article regarding the stabbing of which I was acquitted on the basis of self-defence and that as the RRT interviewed me and took me back into my past story of my life and put some allegations and given the picture of what happened in my life, they said I had not informed Immigration and was changing my story. … When the RRT interviewed me they said I changed statements. I refer to 9.1 on page 3 [the written submissions of the first respondent] and I had no intention of giving incorrect answers.
b)Ground 2: The people I stabbed are involved in a gang in India and they are waiting for me in India and they will kill me.
c)Ground 3: No oral submission made.
d)Ground 4: I am emotionally upset and mentally tortured. The whole of ground 4 is going to happen if I am returned to India.
e)Ground 5: The RRT member has said they had no evidence about the people that I stabbed here. Those people will kill me. I question their decision. When the RRT believes that I am saying the truth, I will be dead by then.
f)Ground 6: My grandfather back at home is the head of the Sikh temple and the whole of my family members are waiting for me and they are going to kill me because I have become a Christian. The people who want to take revenge, and all the people who are after my life are people relating to that.
g)Ground 7: If I go back, the people in the gang are not going to leave me under any circumstances and my family is also waiting for me to go back and will kill me the instant I am there.
h)Ground 8: Keeping in consideration the relevant information the RRT member did not consider them significant enough and critical for my life.
i)Ground 9: The people that I have talked about are aware that I changed my religion to Christianity and they have a gang and are going to kill me irrespective and they will make a religious issue out of this whole thing.
When asked by the Court if he had anything further to tell the Court, the applicant said that he was “not aware of the laws and I do not have a lawyer, please help me and guide me and advise me”.
The first respondent’s response responded to the applicant’s identified grounds as follows:
a)Ground 1: The applicant makes broad un-particularised assertions of jurisdictional error and a denial of “natural justice”;
b)Ground 2: Same as (a);
c)Ground 3: Same as (a);
d)Ground 4: The applicant seeks impermissible merits review;
e)Ground 5: Same as (d);
f)Ground 6: The evidence in issue has not been identified;
g)Ground 7: Same as (d);
h)Ground 8: The evidence in issue has not been identified;
i)Ground 9: Same as (d); and
the first respondent says that the applicant, in the circumstances, has no arguable case for the relief sought.
The first respondent’s written submissions (which the applicant confirmed he had read) further responded to the applicant’s grounds as follows:
Grounds 1, 2 and 3
a)The applicant's allegation of ‘some jurisdictional errors’ is wholly un-particularised, and without further particulars, must fail.
b)The concept of natural justice is dealt with by Division 4 of Part 7 of the Act. On a fair reading of the RRT decision, there is nothing to suggest that the RRT has breached any of the relevant sections contained in Division 4, including section 425 of the Act. This section states:
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
c)The primary basis of the decision was that the RRT had concerns as to the applicant’s credibility having regard to inconsistencies in his claims and evidence and made an adverse credibility finding. The RRT's finding of adverse credibility is a finding reasonably open to the RRT to make, in the role of a decision-maker par excellence. Consequently, no error is revealed.
d)In relation to the applicant’s assertion that the RRT did not properly assess the complementary protection criteria, the first respondent notes that this was assessed by the RRT at [65]-[68] of its decision.
e)That there is no suggestion of improper assessment of complementary protection by the RRT, which did not accept that the applicant was a person to whom Australia has protection obligations under paragraph 36(2)(aa) of the Act.
Grounds 6 and 8
f)These grounds appear to contend that the RRT failed to consider evidence and documents, however the documents and evidence the RRT failed to consider have not been identified by the applicant.
g)At the hearing, the RRT had before it, inter alia, a newspaper article about the stabbing incident in Australia, a certificate of Baptism for the applicant from Hillsong Church dated 19 May 2013, and two letters provided to the RRT by the applicant.
i)The two letters from Father Paul McGee and Pastor Alosio Waininau were referred to and considered by the RRT at [6], [23], [37], and at [52]-[53] of its decision.
ii)The applicant's Baptism certificate was referred to and considered by the RRT at [6], [23], [43] and at [45]-[46] of its decision.
iii)The newspaper article was referred to and considered by the RRT at [6] and [60] of its decision.
h)Accordingly, absent further particulars from the applicant, this ground cannot be sustained on a factual basis.
Grounds 4, 5, 7 and 9
i)The applicant’s grounds essentially assert that the RRT decision was wrong, that the applicant will be subject to torture and life threatening situations in India, will be physical, mentally and emotionally harmed if he is returned to India, and refers to the newspaper article which was before the RRT to further argue that the persons he stabbed “are waiting to persecute [him] if [he] happened to be sent back home”.
j)That as the applicant is clearly seeking impermissible merits review, these grounds cannot succeed.
k)That the applicant’s application should, therefore, be dismissed with costs in a fixed amount.
In response to the applicant’s oral submissions, the first respondent made the following oral submissions:
a)Ground 1: The applicant had said this morning that he had no intention to give incorrect answers to the RRT. The first respondent contends that the applicant appears to be taking issue with the RRT’s factual findings, where issues dispositive of the review, were traversed with the applicant. The applicant has also made reference to paragraph 9.1 of the first respondent’s written submissions (see paragraph 34(a) above) and accordingly the Court should find that the primary basis of the RRT’s decision was that it had concerns regarding the applicant’s credibility and the inconsistencies in his evidence.
b)Ground 2: The applicant refers to the incident where he stabbed people. He alleges that those people are involved in a gang and waiting for him in India. That the Court should have regard to paragraphs 60 to 63 of Exhibit “Court 1”, pages 227 to 228. In particular the Court should have regard to paragraph 62, which makes reference to there being no independent evidence regarding any likely revenge. That the RRT accepted that the stabbing incident occurred, but found that it was not satisfied that the applicant feared revenge or that those people will harm him. The stabbing incident was again considered with the complementary protection application. Therefore, there is no evidence of jurisdictional error, nor is there an incorrect assessment of the complementary protection criteria.
c)Ground 3: That given that no submissions were made by the applicant, there was nothing further to add to the written submissions made.
d)Ground 4 to 8: That the applicant appears to be taking issue with the factual findings of the RRT and there is no jurisdictional error.
e)Ground 6: The applicant makes further oral submissions that family members are waiting to kill him because he has become a Christian. By reference to paragraph 61 of the RRT decision, the RRT did not accept that the applicant has converted (notwithstanding that it accepted that he had undergone a baptism, given its adverse findings as to credit) and, therefore, did not accept that the men or their families wanted to kill him. That this is a factual finding open to the tribunal to make and there was no jurisdictional error.
f)Ground 9: The applicant has stated that the people he stabbed were aware of his changing religion. That again the applicant refers to the newspaper article, which was considered by the RRT (see paragraphs 6 and 60 of the RRT’s decision). That given that the applicant had filed no amended application, affidavits or written submissions in support, the grounds of review should not succeed and no jurisdictional error has been established.
g)That the applicant’s application should, therefore, be dismissed with costs in a fixed amount as costs should, otherwise, follow the event.
h)That the fixed amount sought was 75% of the first respondent’s costs, calculated to be $6,324.20 which the first respondent said amounted to a party-party costs quantification. The first respondent noted that this sum was slightly less than the amount as provided in Schedule 1 of the Federal Circuit Court Rules 2001 which sets out a rate of $6,646.00 for proceedings concluded at a final hearing.
The applicant was given the opportunity to respond to the submissions made by the first respondent, but stated that he did not have anything further to say. The applicant made no submissions referable to the first respondent’s application for costs.
The Court finds:
a)The applicant has failed in Ground 1 to identify any jurisdictional errors in the RRT decision, and simply says the decision was wrong in Ground 5 as the basis for an asserted error of law. The complaint of the applicant, in these circumstances, simply invited some form of merits review which the Court cannot undertake. See Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] where North, Lander and Katzmann JJ stated:
“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.”
b)The applicant has failed in Grounds 2 and 3 to identify any basis for an assertion that the RRT failed to assess his complementary protection properly and or/deprived him of natural justice. The Court can find no basis for those grounds upon a fair reading of the decision record of the RRT.
c)The applicant has failed in Grounds 6 and 8 to identify any of the “relevant documents which are important in [his] case” or the “evidences which were significant and critical to the decision under review”, so as to ground any finding of jurisdictional error.
d)The application in Grounds 4, 7 and 9 does no more than cavil with the findings of the RRT and which would, in such circumstances, amount to a merits review, which as set out above, this Court cannot entertain. The Court specifically notes that the newspaper article provided to this Court as part of the applicant’s application was carefully considered in terms of paragraphs 60 to 63 of the decision of the RRT and the RRT determined that issue on the basis of a credibility finding adverse to the applicant’s claims, namely that he was not a truthful, reliable or credible witness (paragraph 50 of the decision of the RRT).
e)The findings of the RRT were open to it on the material and evidence before it.
Conclusion
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. The RRT identified information (including country information) to which it had regard. The RRT discussed with the applicant s.91R(3) of the Act in light of the documentary evidence he produced at the hearing in support of his claims to be a Christian. 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.
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.
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.
The proceedings before this Court should, therefore, be dismissed with costs.
The costs claimed by the first respondent are $6,324.20 as set out in paragraph 51(h) above. Given that such costs are less than the amount referred to in the relevant costs schedule (see paragraph 51(h) above), the Court will order that amount as sought by the first respondent to be paid by the applicant within a period of 60 days.
The matter should, otherwise, be removed from the active pending cases list.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Kemp
Associate:
Date: 11 July 2014