SZTVA v Minister for Immigration & Border Protection
[2014] FCCA 1122
•29 May 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTVA v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2014] FCCA 1122 |
| Catchwords: PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed. |
| Legislation: Judiciary Act 1903 (Cth) s.39B Migration Act 1958 (Cth) ss.36, 422B Federal Circuit Court Rules 2001 (Cth) rr.44.12, 44.13 |
| Cases Cited: Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 |
| Applicant: | SZTVA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 202 of 2014 |
| Judgment of: | Judge Emmett |
| Hearing date: | 29 May 2014 |
| Date of Last Submission: | 29 May 2014 |
| Delivered at: | Sydney |
| Delivered on: | 29 May 2014 |
REPRESENTATION
The applicant appeared in person.
| Solicitors for the Respondents: | Ms Burnett (Clayton Utz Lawyers) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 202 of 2014
| SZTVA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”), the applicant seeks judicial review of a decision of the Refugee Review Tribunal dated 8 January 2014 (“the RRT”).
The first respondent seeks an order pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), that the proceeding before this Court, commenced by way of application on 29 January 2014, be dismissed on the basis that the applicant has not raised an arguable case for the relief claimed.
Rule 44.12 of the Rules provides as follows:
“(1) At a hearing of an application for an order to show cause, the Court may:
(a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or
(b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or
(c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.
(2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”
Relevantly, r.44.13 provides:
“(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”
The applicant was unrepresented before the Court this morning.
On 5 May 2014, the applicant attended a directions hearing before me. I explained to the applicant that this Court has no power to interfere with the decision of the RRT, unless the Court is satisfied that the RRT’s decision is affected by a mistake going to the jurisdiction of the RRT. I also explained to the applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court.
I also explained to the applicant that in circumstances where the grounds of the application did not raise an arguable case for the relief claimed, the application may be dismissed pursuant to the rules of this Court.
At the directions hearing, the applicant was provided with a copy of the applicable costs schedule of the Court and I explained to the applicant the consequences that would flow to him if a costs order was made against him. Namely, that whilst any costs order remains unpaid, it becomes a debt to the Commonwealth of Australia. As such, the applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected.
The applicant confirmed that he wished to continue with the application for judicial review of the RRT’s decision. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, by 16 May 2014. The applicant was also directed to file and serve written submissions in support of the grounds of his application by 16 May 2014.
At the directions hearing, the applicant was provided with the contact details of legal services providers and interpreting and translation services.
The matter was listed for hearing today pursuant to r.44.12 of the Rules, a copy of which was provided to the applicant.
The applicant’s application for judicial review, filed on 29 January 2014, stated the grounds of review as follows (reproduced in the original):
“Grounds of Application:
1. The Tribunal was in error because it had made the decision in denial of procedural fairness and denial of natural justice to me.
2. The Tribunal had constructively failed to exercise jurisdiction.
3. The Tribunal had failed to take into account relevant and material considerations.
4. The Tribunal had ignored relevant details.
5. The Tribunal had failed to ask relevant questions prescribed by law and its decision was beyond power.
6. The Tribunal misapplied the test of whether there was a real risk of significant harm to the Applicant if returned to his country of nationality.
Particular 1:
The applicant has been involved actively in the Gurkhaland movement in 1986-1992 in Darjeeling and expressed the fear that he would be at risk of significant harm in his country of nationality though they are not considered foreigners. Because of his involvement the Tribunal considered only that the applicant is not a credible witness, saying that the applicant’s was only detained and tortured and mistreated for only two days. The tribunal failed to consider that only mistreatment on fear of real risks of harm and worries will amount to torture and failed to consider that paragraph 36(2)(aa)of the Migration Act 1958 requires an objective of real risks to the applicant’s personally, taking into the account the reasonable foreseeability of future harm based on the entirely of the circumstances.
Particular 2:
Further more referring to the Particular 1, while in the Villawood detention Centre at the mental health assessment the IMHS (International Health Medical Service) the officer found out about the applicant’s torture and trauma and quickly referred to STARTS (Service For The Treatment And Rehabilitation Of Torture And Trauma Survivors) for further treatment and assessment which has been done on the 03/12/2013 and 14/01/2014, and the date of this report was given 19/01/2014, after the RRT interview was held on the 18/12/2013. Which they found the applicant still need to be assessed furthermore clinical examinations, which can submit these reports to the Federal Circuit Court.”
The grounds of the application were interpreted for the applicant and the applicant was invited to make submissions in support of the grounds.
On 14 May 2014, the applicant filed a document headed ‘Submissions.’ This document attached an immense amount of material, but appeared largely to restate, in greater detail, the applicant’s complaints already stated in the grounds of his application.
Ground 1 asserts that the RRT denied the applicant procedural fairness and natural justice. In support, the applicant’s written submission asserted that the RRT accepted everything that he had claimed, but still reached an adverse conclusion and that in doing so, the RRT denied the applicant natural justice.
The RRT’s decision record, which was attached to the applicant’s submission, makes clear that the RRT explored with the applicant at a hearing the applicant’s claims of a fear of persecution because of his involvement in the Gurkhaland Movement in India between 1986 and 1992. The RRT accepted that the applicant was mistreated in 1987 and 1988 by reason of his involvement in the Gurkhaland Movement that he was involved with clashes with communists in that period, and that he narrowly missed being shot during that period. The RRT also accepted that the applicant may experience some trauma as a result of those incidents.
However, the RRT noted that nothing further flowed from those events in terms of a police record and was not satisfied that the applicant would be of interest in the Indian authorities on his return to India at this time, being some 10 years later. The RRT further found that nothing flowed from the brief period of detention 10 years ago, and thereafter the applicant continued to reside in India.
The RRT did not accept that there are persons who wished to take revenge on the applicant by reason of his involvement with the Gurkhaland Movement in 1987 and 1988. The RRT noted that the applicant remained in India for 10 years after his involvement with the Gurkhaland Movement and no harm befell him or his parents who have remained in Darjeeling.
The RRT noted that the applicant continued to live in Darjeeling until 1993, and then resided in Calcutta, where he worked and studied for the five years preceding his arrival in Australia. The RRT noted that the applicant did not recount any attempts to harm him during these 10 years. Accordingly, the RRT found it to be a remote possibility that the applicant would face harm, such as attempts to kill him or abduct him, on his return to India, now, or in the reasonably foreseeable future.
For those reasons, the RRT was not satisfied that the applicant met the protection criteria under the Convention and therefore did not satisfy s.36(2)(a) of the Act.
The RRT noted that the applicant had not made any other claims for protection and in such circumstances, did not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to India, there would be a real risk of the applicant suffering significant harm. For those reasons, the RRT was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the alternative protection criteria in s.36(2)(aa) of the Act.
Section 422B of the Act states that Part 7, Division 4 of the Act is an exhaustive statement of the natural justice hearing rule. That Part provides various obligations that the RRT must discharge in the conduct of its review and the making of its decision.
The failure by the RRT to find that the applicant met the criteria either under the Refugee Convention criterion in s.36(2)(a) of the Act or the complementary protection in s.36(2)(aa) of the Act, does not by itself demonstrate an error going to the RRT’s jurisdiction, nor does it suggest any failure of the RRT to comply with Part 7, Division 4 of the Act.
Ground 1 is no more than a complaint by the applicant with the findings and conclusions of the RRT that were adverse to him. The applicant’s complaints, such as they are, invite merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
Ground 2 states that the RRT constructively failed to exercise jurisdiction. In support, the applicant repeated several times that the RRT failed to consider relocation, protection and discrimination.
In relation to relocation, there was no obligation on the RRT to consider relocation in circumstances where its findings that the applicant’s fear of harm was not well-founded were not attenuated by doubt (see Randhawav Minister for Immigration, Local Government and Ethnic Affairs (1994) 125 ALR 265).
In relation to the applicant’s complaint that the RRT did not consider protection or discrimination, a fair reading of the RRT’s decision record does not bare out that complaint.
Grounds 3 and 4 assert that the RRT ignored relevant materials and considerations. In support, the applicant attached various materials that he asserted he had given to the RRT for consideration. As I understand the applicant’s complaint, it is that the RRT did not accept or place weight upon that material in considering the applicant’s claims.
However, the RRT referred in its decision record to country information to which it had regard. It is well established that the country information to which the RRT has regard and the weight it gives such material is a matter for the RRT (see: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).
In the circumstances, the failure by the RRT to place weight on the applicant’s material does not, by itself, demonstrate an error going to the RRT’s jurisdiction.
Ground 5 asserts the RRT failed to asked relevant questions prescribed by law and that its decision was beyond power. In support of that ground, the applicant said that the RRT did not ask all the questions it should have asked the applicant. I understand from that assertion that the applicant may have been intending to suggest that the RRT should have made further inquiries about the applicant’s claims and investigated his claims accordingly.
However, there is no general obligation on the RRT to investigate the applicant’s claims (see: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ in joint judgment). The duty imposed on the RRT by the Act is a duty to review and not a duty to enquire (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
In the circumstances, the mere assertion in ground 5 that the RRT should have investigated his claims does not establish jurisdictional error on the part of the RRT.
Ground 6 asserts that the RRT misapplied the test of whether there was a real risk of significant harm to the applicant if returned to India and appears to suggest that the RRT erred in its consideration of complementary protection.
That complaint is supported by two particulars. The first particular appears to reassert the applicant’s claims to have been involved actively in the Gurkhaland Movement in 1986 to 1992 in Darjeeling and that he had expressed a fear that he would be at risk of significant harm. That particular otherwise appears to cavil with the RRT’s finding that the applicant would not be at significant harm. Such a complaint seeks merits review which, as stated above, this Court cannot undertake.
The RRT found that the applicant’s fear of harm in India not to be well-founded, having regard to:
a)the length of time that has passed since the applicant experienced incidents of harm;
b)the fact that the applicant remained in India for a further ten years; and
c)that his parents continued to reside unharmed in Darjeeling as stated above.
Those findings would appear to be open to the RRT and were findings to which the RRT was entitled to have regard in considering whether the applicant met the criteria in s.36(2)(a), and, in the circumstances, were findings to which the RRT was entitled to have regard in considering the complementary protection criterion in s.36(2)(aa) of the Act.
The second particular ground 6 refers to a claim that appears to been made by the applicant which relies on matters subsequent to the RRT’s decision record. The failure of the RRT not to consider those claims cannot be an error going to the RRT’s jurisdiction in circumstances where those claims were not before the RRT to consider.
While I make no final decision as to whether or not the RRT’s decision is affected by jurisdictional error, none is apparent on the face of the decision record. The RRT referred to the relevant law and affirmed the decision under review. There appears to be nothing on the face of the decision record to suggest that those findings were not open to the RRT on the evidence and material before it and for the reasons it gave.
The applicant has not identified any error on the part of the RRT that is capable of establishing jurisdictional error on the part of the RRT.
In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed.
Accordingly, the proceeding before this Court, commenced by way of application on 29 January 2014, should be dismissed pursuant to r.44.12(1)(a) of the Rules, with costs.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 6 June 2014
Key Legal Topics
Areas of Law
-
Administrative Law
-
Immigration
Legal Concepts
-
Judicial Review
-
Natural Justice
-
Procedural Fairness
-
Jurisdiction
0
10
0