SZTQJ v Minister for Immigration

[2014] FCCA 1676

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTQJ & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1676

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

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.425

First Applicant: SZTQJ

Second Applicant: SZTQK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3058 of 2013

Judgment of: Judge Driver

Hearing date: 29 July 2014

Delivered at: Sydney

Delivered on: 29 July 2014

REPRESENTATION

The First Applicant appeared in person

Solicitors for the Respondents:

Ms E Warner Knight

Australian Government Solicitor

INTERLOCUTORY ORDERS

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

2. The 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 3058 of 2013

SZTQJ

First Applicant

SZTQK

Second 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 11 November 2013.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant’s protection visas.  There are two applicants who are a husband and wife from Gujarat State in India.  The relevant protection claims were made by the first applicant, the applicant husband.  References in this judgment to the applicant are intended to be references to him. 

2. The applicant’s claims for protection were based on account of problems with a business partner who turned out to have political connections with the Bharatiya Janata Party (BJP).  The applicant’s visa application was refused by the Minister’s delegate on 22 March 2013.  The applicants sought review before the Tribunal.  The applicants provided no additional material to that which had been before the Department, and they were invited to a hearing by the Tribunal.  The applicant husband attended that hearing.  The second applicant declined to attend due to illness.  The Tribunal dealt with those circumstances at [10] of its reasons[1].  No issue was raised in these proceedings about that manner of proceeding. 

   [1] Court Book (CB) 96

3. These proceedings began with a show cause application filed on 9 December 2013.  There are three grounds in that application:

   1. The Tribunal failed to consider an integer of the applicant’s claims, in failing to consider whether or not the applicant in India was at risk of harm from his business partner who is affiliated with Bharatiya Janata Party (BJP).

   2. The Tribunal failed to investigate applicants claim, specially the grounds of persecution in India.  Therefore, the Tribunal decision dated 11 November 2013 was effected by actual bias constituting judicial error.

   3. The Refugee Review Tribunal denied [the] applicant procedural fairness by reaching adverse conclusions that the account of events on which the protection visa claims were based is false, 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.

4. The application is supported by a short affidavit by the applicant.  I received that as a mixed statement of facts and submissions.  I also have before me as evidence the court book filed on 28 January 2014.  

5. Having considered the available material and having given the applicant the opportunity today to make oral submissions, I have concluded that there is no arguable case of jurisdictional error by the Tribunal.  The Tribunal’s decision turned on comprehensive adverse credibility findings.  Those findings are detailed on pages 97 to 100 of the court book.  Those adverse credibility findings also extended to the applicant’s asserted links with his business partner who had a political affiliation. 

6. There is no substance to the assertion in the application that the Tribunal failed to consider that integer of the applicant’s claims.  Neither is there any substance to the assertion of bias.  There was nothing in this case which called for some investigation by the Tribunal beyond the material provided by the applicants. 

7. The third ground is, in part, an assertion of procedural unfairness. There are two answers to that assertion. The first is that the applicant was given a fair opportunity pursuant to s.425 of the Migration Act 1958 (Cth) to provide information and give evidence to the Tribunal about his claims. The second is that the conclusions reached by the Tribunal were clearly open to it on the material before it. That material was the applicant’s claims and his oral evidence to the Tribunal.

8. I conclude that the applicants have failed to demonstrate an arguable case of jurisdictional error. Accordingly, I will dismiss the application, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

9. In consequence of the dismissal of the application the Minister seeks an order for costs in accordance with the Court’s scale. The applicant did not wish to be heard on costs. I will order that the 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 nine (9) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  31 July 2014