SZTWD v Minister for Immigration & Border Protection
[2014] FCCA 1189
•30 May 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTWD v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2014] FCCA 1189 |
| 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) s.36 Federal Circuit Court Rules 2001 (Cth) r.44.12, 44.13 |
| Cases Cited: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 |
| Applicant: | SZTWD |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 308 of 2014 |
| Judgment of: | Judge Emmett |
| Hearing date: | 30 May 2014 |
| Date of Last Submission: | 30 May 2014 |
| Delivered at: | Sydney |
| Delivered on: | 30 May 2014 |
REPRESENTATION
The applicant appeared in person with the assistance of an interpreter.
| Solicitors for the Respondents: | Ms Baggart (DLA Piper) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 308 of 2014
| SZTWD |
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 21 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 12 February 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 background to this matter, the applicant’s claims, and the decision of the RRT are set out in the written submissions of the first respondent, as follows:
“Background
2. The applicant is a male citizen of Thailand. The applicant first arrived in Australia on 5 May 1990 as the holder of a V10 visa which enabled the applicant to remain in Australia for one month.[1] After the cessation of this visa the applicant remained unlawfully in Australia for the next five years.
3. On 26 February 1996, the applicant lodged his first Protection (Class XA) visa application. The delegate refused the application on 29 March 1996 and, on 29 July 1996, this decision was affirmed by a differently constituted RRT.
4. On 14 May 1998, the applicant re-entered Australia using a false passport which contained a Visitor (Class TR) Subclass 676 visa.[2]
5. The applicant applied again for a Protection (Class XA) visa on 18 June 2013.[3] The application was refused on 9 September 2013.[4]
6. The applicant applied to the RRT for review of the delegate's decision on 17 September 2013.[5]
7. The applicant gave oral evidence before the RRT on 4 November 2013.[6] The RRT handed down its decision on 20 January 2014.[7]
The applicant’s claims
8. In his visa application, the applicant claimed that he was a homosexual and that his sexuality was not accepted in his community. The applicant claimed that, prior to coming to Australia, he was in a relationship with a man named Mr Narong-Kaewtung who was a local drug dealer. The applicant claimed that he looked after Mr Narong-Kaewtung's cash and that he was robbed of some of the money. The applicant claimed that Mr Narong-Kaewtung accused him of taking the money and threatened to kill him unless he paid the money back. The applicant claimed that if returned to Thailand the he would be killed by Mr Narong-Kaewtung.
9. The applicant further claimed that if returned to Thailand he would be imprisoned for reason that he departed Thailand using another person's identification.
10. At the hearing, the applicant stated that he no longer feared persecutory harm for reason of his sexual orientation. The applicant confirmed that if returned to Thailand that he would be killed by Mr Narong-Kaewtung. The applicant also confirmed that he would be jailed for his illegal departure and, further claimed, that he would be at risk in jail for reason of his sexual orientation.
[1] CB 39-40.
[2] CB 41.
[3] CB 2-27.
[4] CB 62-74.
[5] CB 76-81.
[6] CB 124-126.
[7] CB 145-163.
The decision of the Tribunal
11. The RRT did not find the applicant to be a credible witness,[8] and found that the applicant was a person who was prepared to supply false information to obtain a favourable immigration outcome.[9]
11.1. The RRT found that some of the applicant's claims were vague and noted that there were inconsistencies between the oral evidence provided at the hearing and what was provided to the delegate.[10] The RRT also found that the applicant's delay of 14 years in applying for protection casted doubt over the credibility of his claims. The RRT did not accept the applicant's explanation that he was not aware that he could apply for protection as it noted that the applicant had previously made an application for protection in Australia.[11]
11.2Ultimately, the RRT did not accept that the applicant was accused of stealing the money from Mr Narong-Kaewtung or that the applicant was ever threatened by him. Consequently, the RRT was not satisfied that there was a real chance the applicant would suffer serious or significant harm if he were to return to Thailand for reason of his claimed dispute with Mr Narong-Kaewtung.[12]
12. The RRT accepted that the applicant departed Thailand using a fraudulently altered passport and, consequently, as the applicant acted in contravention of Thai laws he could be persecuted under these laws if returned to Thailand.[13] The RRT found that these laws were of general application and were not discriminatory in their terms. Consequently, the RRT found that the applicant would not suffer harm under the Refugees Convention.[14] Further, on the basis of country information, the RRT did not accept that the penalty the applicant may face for breaching the laws amounted to serious harm.[15]
21.1 Although the RRT was not satisfied on the country information before it that the applicant would be imprisoned,[16] it was not satisfied that, if the applicant was imprisoned, that there was a real risk that the applicant would suffer significant harm in prison for reason of the prison conditions,[17] or his sexual orientation.[18]
[8] See [49] at CB 155.
[9] See [55] at CB 157.
[10] See [51] - [52] at CB 156.
[11] See [53] at CB 156.
[12] See [55] at CB 157.
[13] See [56] at CB 157
[14] See [63] at CB 158 and [73]-[74] at CB 159.
[15] See [73] at CB 159.
[16] See [82] at CB 161.
[17] See [87] at CB 162.
[18] See [83] at CB 161 and [87] at CB 162.
The applicant was unrepresented before the Court this morning, although had the assistance of a Thai interpreter.
On 19 May 0214, 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 26 May 2014. The applicant was also directed to file and serve written submissions in support of the grounds of his application by 26 May 2014.
At the directions hearing, the applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.
The matter was listed today for a hearing pursuant to r.44.12 of the Rules and a copy of that rule was given to the applicant.
On 23 May 2014 and 28 May 2014, the applicant filed 2 documents that appear to be identical. The documents are in the nature of submissions, and were accepted on that basis.
The applicant confirmed that he relied on the grounds of his application for judicial review, filed on 12 February 2014, as follows:
“Grounds of Application:
1. Appeals RRT’s decision for refusing to grant the requested visa.
2. Never intended to break the law of any country
3. Decided to break several laws in both Thailand and Australia out of necessity for fear of my life
4. Life at Villawood Detention Centre is safer than any Thai prison. I believe I will definitely be harmed at the Thai prison.”
The grounds of the application were interpreted for the applicant and the applicant was invited to make submissions in support of the grounds.
The only submission made by the applicant in support of the grounds of the application was that he was in fear for his life.
None of the grounds of the applicant’s application identify any error capable of review by this Court. I have perused the RRT’s decision record and whilst I make no final finding as to whether or not it is affected by jurisdictional error, none is apparent on the face of the RRT’s decision record, and none is identified by the applicant.
The RRT’s decision record commences with identifying the relevant law against which the applicant’s claims are to be assessed. The RRT then provided the identity and immigration history of the applicant and his claims. The RRT summarised the delegate of the first respondent’s decision (“the Delegate”) in refusing the applicant a protection visa and referred with specificity to country information to which it had regard. The RRT then summarised the applicant’s claims as maintained before the RRT and summarised exchanges that it had with the applicant about those claims. The RRT noted various concerns about the applicant’s evidence that were put the applicant and noted the applicant’s responses.
Ultimately, the RRT did not find the applicant to be a credible witness and comprehensively rejected his claims insofar as they related to his association with an ex-gangster and his reasons for fear of harm from that person should he return to Thailand .
The RRT then considered the consequences that may flow to the applicant if he returned to Thailand having left Thailand illegally. The RRT accepted that the applicant may well be punished on return to Thailand pursuant to the laws of general application. The RRT found that such punishment was not discriminatory and did not enliven any Convention nexus.
The RRT accepted the applicant’s evidence about his homosexuality, however did not accept that he would suffer harm in Thai gaols in the terms expressed in s.91R of the Act. The RRT noted that it informed the applicant that there was no country information before it to indicate that gay men would be at particular risk of harm or significant harm if they were in prison in Thailand. The RRT invited the applicant to refer it to any such country information that would support the applicant’s claim that he would face harm for these reasons in gaol. The RRT noted the applicant’s response that related to his treatment in Australia which he said was different from the treatment in Thailand. The RRT noted that, at the close of the hearing, the applicant was provided with further time to provide further submissions in support of his claims, including his claim that he would face harm in prison because of his sexual orientation. No further material was provided.
The RRT noted that on 23 December 2013, it wrote to the applicant inviting him to comment on particular country information, to which no response was made. The RRT decision record states that:
“[68] On 23 December 2013, the Tribunal wrote to the applicant inviting the applicant to comment on advice from DFAT (received on 18 December 2013) that: ‘Post is not aware that gay male prisoners are particularly targeted for harm within Thai prisons. Thailand is a comparatively forward-leaning country with regard to LGBT [Lesbian, Gay, Bisexual, and Transgender) rights and gay male prisoners would normally be expected to be treated by the same standards as other male prisoners.’
[69] The applicant was also invited to comment on advice from DFAT dated 18 Dec4ember 2013 that, in respect of the possible penalties that might be imposed on first time offenders: ‘Each case depends on the recommendation of immigration police and is subject to decisions in criminal courts. Anecdotal advice suggests that for first time offenders, a suspended sentence and a fine might be imposed on Thai nationals in passport-related matters. More generally, judicial authorities may impose alternatives to custodial sentences for non-violent offenders.’”
The RRT accepted that the most likely penalty the applicant would face in relation to his illegal departure was a fine and/or a suspended sentence.
However, the RRT did consider whether the applicant was at risk of significant harm in considering whether the applicant met the complementary criterion found at s.36(2)(aa) of the Act. The RRT found that there was no credible evidence before it to suggest that if convicted of a passport-related offence that the applicant was at risk of significant harm in Thai gaol.
The RRT based its finding and conclusions on country information before it. It is well settled that the country information to which the RRT has regard and the weight it gives that information is a matter for the RRT (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).
The RRT dealt in some detail with the issue of whether there is a real risk that the applicant will suffer significant harm and whether he otherwise met the complementary criterion at s.36(2)(aa) of the Act.
The RRT’s findings and conclusions that he neither satisfied the refugee criterion at s.36(2)(a) of the Act or the complementary criterion at s.36(2)(aa) of the Act would appear to be open to the RRT on the evidence and material before it and for the reasons he gave.
It is well established that the RRT is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the RRT have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).
The RRT’s credibility findings are a matter par excellence for the RRT including its adverse findings. (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
As stated above, the grounds of the applicant’s application and the oral submissions made by the applicant this morning do not identify any error that suggests it is capable of review by the Court or raises any assertion of jurisdictional error.
As stated above, I make no final decision as to whether or not the RRT’s decision is affected by jurisdictional error, however 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 12 February 2014, should be dismissed pursuant to r.44.12(1)(a) of the Rules, with costs.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 6 June 2014
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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