SZTRB v Minister for Immigration

[2014] FCCA 1717

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTRB & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1717

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – 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: SZTRB

Second Applicant: SZTRC

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3120 of 2013

Judgment of: Judge Driver

Hearing date: 1 August 2014

Delivered at: Sydney

Delivered on: 1 August 2014

REPRESENTATION

The First Applicant appeared in person

Solicitors for the Respondents:

Ms N Blake

Clayton Utz

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 3120 of 2013

SZTRB

First Applicant

SZTRC

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 20 November 2013.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas.  There are two applicants who are a husband and wife.  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 is from Gujarat state in India.  He made claims of political persecution because of his political activities in that state.  He operated a grocery business there and had been a member of the Congress Party for 10 to 12 years.  In around 2008, he started to work actively for the party.  His activities became known and BJP supporters started harassing his customers and taking items from his store without payment.  He was subjected to pressure to leave the party and became stressed.  On one occasion, he was injured and complained to the police.  In 2012, things started to go downhill because of harassment from BJP supporters.  He closed his business and came to Australia. 

3. The Minister’s delegate refused the visa applications and the applicants sought review before the Tribunal.  The Tribunal records that both applicants were invited to a hearing and the first applicant appeared on 15 October 2013 by videolink.  It appears that the applicant was located in Griffith, New South Wales and the Tribunal was located in Melbourne.  The hearing was conducted with the assistance of an interpreter in the Gujarati and English languages apparently located in Melbourne. 

4. The Tribunal accepted the bulk of the applicant’s factual claims.  In particular, the Tribunal accepted that the applicant had been involved with and was a member for 10 to 12 years of, the Congress Party in Gujarat.  The Tribunal accepted that he became active from 2007.  The Tribunal also accepted that he and his customers were harassed during the 2007 elections by BJP supporters.  The Tribunal also accepted that the police took no action.  The Tribunal also accepted that there were more similar problems in 2012.  However, the Tribunal did not accept that the harm experienced by the applicant, which was primarily verbal harassment, amounted to either serious harm or significant harm.  At [36] of its reasons[1], the Tribunal accepted that the applicant had been involved in one physical altercation.  This occurred in 2007.  The incident had not been repeated. 

   [1] Court Book (CB) 119

5. At [37][2] of its reasons, the Tribunal considered the future risk of harm to the applicant.  The Tribunal found that if the applicant returned to Gujarat and continued his political activities, he would not suffer harm amounting to serious or significant harm. 

   [2] CB 120

6. These proceedings began with a show cause application filed on 13 December 2013.  The applicant now relies upon an amended application filed on 28 April 2014. 

7. The applicant continues to rely upon his affidavit filed with his original application.  I received the affidavit subject to relevance.  The Minister’s solicitor tendered into evidence the court book filed on 24 February 2014. 

8. The amended application contains two grounds:

   1. 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.

   2. The Tribunal has failed to investigate applicant claim, specially the grounds of persecution in India.  Therefore, the Tribunal’s decision dated 20 November 2013 was effected by actual bias constituting judicial error. (errors in original)

9. Ground 1 suggests some breach of a provision of the Migration Act 1958 (Cth) (Migration Act) which is not specified. In his oral submissions, the applicant referred to the poor quality of the video link at the hearing. This amounts to an asserted breach of s.425 of the Migration Act. The applicant said that at times the video froze and then came good again. I asked the applicant if he made any complaint to the Tribunal during the hearing. He initially said that the problems were only minor and he did not mind them so made no complaint. Later on, however, he said that there were problems with both the vision and the audio and that he did mention from time to time, during the hearing, some problems. In particular, the applicant said that he asked for certain questions to be put again.

10. The applicant’s statements were made from the bar table and, as I pointed out to him, there is no evidence to support them.  There is nothing in the court book to support a contention of problems with the video link.  The Tribunal decision is silent in that regard apart from verifying at [3][3] that the hearing was by videolink. 

    [3] CB 114

11. I gave directions in this matter on 5 February 2014.  I gave the applicant the opportunity to amend his application and file and serve affidavit evidence.  The amended application makes no reference to problems with the videolink.  Neither has the applicant filed any affidavit evidence about it.  I asked the applicant whether he had listened to the audio recording of the Tribunal hearing.  He said that he had not although he does have the disk containing the audio recording.  Accordingly, he does not know whether the audio recording would corroborate his claim of technical problems.  Neither had the Minister’s solicitor listened to the audio recording.  Even if I had listened to the audio recording, it is entirely speculative whether it would reveal anything bearing on the assertion.  Among other things, if there had been a problem at the Griffith end of the videolink, that might not have been apparent at the Melbourne end, where the audio recording was made.

12. There is no indication that any claim made by the applicant at the Tribunal hearing was not understood or not considered.  The applicant’s factual claims were broadly accepted.  I think it most unlikely that the Tribunal was on notice of any asserted problems with the videolink as, if it had been, I would have expected some mention of the issue in the Tribunal’s reasons. 

13. On the basis of the material available to me, I am not persuaded that Ground 1 supports an arguable case of jurisdictional error by the Tribunal. 

14. Ground 2 is in what I described to the applicant as template terms.  I suggested to the applicant that that ground may have been suggested to him by someone else.  He denied that.  I asked the applicant to clarify what aspect of his claim was unconsidered, supporting the assertion of bias.  He told me that he had provided additional documents to the Tribunal after the hearing and they had not been considered.  I asked the applicant if those documents were contained in the court book, and he said that they were.  I asked him to identify them for me, and he referred to the documents reproduced on pages 106 to 111 of the court book.

15. The Tribunal records in its reasons at [32][4] that after the hearing the applicant submitted a number of documents.  Those documents were intended to corroborate his asserted political activities.  The Tribunal had some doubts about some of the documents, but nevertheless accepted the applicant’s account of his political activities.  It follows that the documents submitted by the applicant were considered and there is no substance to the assertion of bias. 

    [4] CB 118-119

16. The applicant has failed to demonstrate any arguable case of jurisdictional error by the Tribunal. 

17. Accordingly, I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

18. In consequence of my dismissal of the application, the Minister seeks an order for costs in accordance with the Court’s scale.  The applicant said that he could not think clearly at the moment.  I am satisfied that an award of costs in accordance with the Court’s scale would be appropriate.

19. 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 nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  11 August 2014