SZUBU v Minister for Immigration & Border Protection
[2014] FCCA 1498
•3 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUBU v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2014] FCCA 1498 |
| 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: Federal Circuit Court Rules 2001 (Cth) r.44.12. |
| Abebe v Commonwealth of Australia (1999) 197 CLR 510 |
| Applicant: | SZUBU |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1164 of 2014 |
| Judgment of: | Judge Emmett |
| Hearing date: | 3 July 2014 |
| Date of Last Submission: | 3 July 2014 |
| Delivered at: | Sydney |
| Delivered on: | 3 July 2014 |
REPRESENTATION
| The applicant appeared in person with the assistance of an interpreter. |
| Solicitors for the Respondent: | Mr Andras Markus (Australian Government Solicitor) |
.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1164 of 2014
| SZUBU |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application by the applicant pursuant to r.44.12 of the Federal Circuit Court Rules2001 (Cth) (“the Rules”), for an order requiring the respondent to show cause why the Court should not grant the relief sought in the application.
The applicant attended a directions hearing before me on 2 June 2014, at which he was unrepresented, although had the assistance of a Punjabi interpreter. On that occasion I explained to the applicant the role of this Court, and that the grounds of his application presently made bare assertions unsupported by particulars, and did not by themselves disclose an error capable of review by this Court. I explained to the applicant that, in circumstances where the grounds of the application did not raise a mountable case for the relief claimed, the application may be dismissed pursuant to the Rules.
The applicant confirmed that he wished to continue with his application for judicial review of a decision of the Refugee Review Tribunal (“the RRT”) dated 24 April 2014, and for that reason was given leave to file and serve an amended application, together with evidence and submissions in support by 18 June 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, as well as copies of the relevant costs schedule and r.44.12 of the Rules. The matter was then set down for hearing today pursuant to r.44.12 of the Rules.
The applicant confirmed to the Court this morning he had not filed any further documents, either in accordance with my directions or otherwise. The applicant had some documents that he sought to provide to the Court, but which he acknowledged post-dated the RRT’s decision, and were not documents that were provided to the RRT.
I explained to the applicant that in such circumstances, those documents could not be relevant to the only issue before this Court, being whether or not the decision of the tribunal is affected by a mistake that goes to its jurisdiction.
The applicant confirmed that he relied on the grounds expressed in the application filed on 30 April 2014. Those grounds are as follows:
“1. I have more evidence & enough information for fair complimantry [sic] protection review.
2. Trying to send me back home will result in jeopordising [sic] my life. Pushing me into life threating, [sic] physical & mental torture.
3. The RRT deprived me of natural justice.
4.The decision made by the member in RRT is wrong.
5. The secondry respondent [sic] made an error of law by not considering.”
Ground 1 refers to the further evidence that the applicant wished to provide, to which I have referred above. In those circumstances, ground 1 does not disclose an arguable case for the relief claimed.
Ground 2 asserts simply the consequences that the applicant says may occur if he was returned to his home country. Such a complaint does not disclose an error capable of review by this Court.
In ground 3, the applicant asserts that the RRT deprived him of natural justice. I asked the applicant in what way the tribunal denied him natural justice, and the applicant responded that he would be persecuted if returned. The applicant otherwise made no relevant submission in support of ground 3.
Ground 4 is a wholly unparticularised assertion made by the applicant. The applicant agreed that ground 4 was his expression of his disagreement with the RRT’s decision. Such a complaint invites merits review which this Court cannot undertake (see 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 5 asserts that the RRT failed to consider something, which I understood the applicant to assert was the breach of his privacy on the internet. In relation to that issue, the RRT’s decision record makes clear that the applicant told the RRT that his personal information had been disclosed. However, the RRT, in considering that assertion found that the applicant’s name, date of birth and other limited details had been disclosed, but that country information before it indicated that failed asylum seekers from India are not subjected to persecution in India for reasons of having claimed asylum in Australia. For that reason, the RRT found that there was no real chance that the applicant would face persecution in India for that reason.
In light of those findings by the RRT, ground 5 cannot be made out as a failure by the RRT to consider that claim made by the applicant.
The first respondent filed written submissions on 26 June in this matter that identify the background, and claims, and RRT decision, as follows:
“Background and claims
2. The applicant, a national of the Republic of India, first arrived in Australia as the holder of a student visa on 1 October 2007. He overstayed his visa and was taken into immigration detention on 22 August 2013 after being located as an unlawful non-citizen. He was interviewed in relation to his compliance issues (Relevant Documents (RD) 1-8, 232).
3. On 26 September 2013, he applied for a protection visa (RD 9 ff). He claimed that he faced harm in India due to threats from the family of a Jat Sikh woman, who he claimed he had a relationship with in 2006, because he was from a low caste, the Ramdasia. He claimed that as a result of their threats his family arranged the funds for him to study in Australia (RD 38). At interview with the delegate, the applicant also claimed to be bisexual (RD 235-238). The delegate did not accept the veracity of the applicant’s claims and found that his claims were strongly suggestive of an attempt by the applicant to remain in Australia by any means (RD 238). On review to the Tribunal, the applicant also claimed that due to the disclosure of personal information relating to him by the Department of Immigration on its website in February 2014, he should be granted protection (RD 400 [46]).
Tribunal decision
4. In a decision, dated 24 April 2014, the Tribunal accepted the applicant was a national of India. It did not otherwise accept the applicant’s claims (RD 400-402).
5. The Tribunal found that if the applicant had feared returning to India due to the relationship, caste or sexual orientation he would have mentioned these matters at the compliance interview with the Department.
6. The Tribunal found the applicant’s claims in relation to his caste, his claimed inter-caste relationship and his sexual orientation and fear of harm resulting from these were not credible and there was insufficient credible evidence upon which to make a finding that the applicant is either a Convention refugee or owed any form of protection obligations (RD 400 [51]-[52]). The Tribunal also found that the absence of documentary evidence to corroborate his claims further seriously undermined the applicant’s credibility (RD 400 [53]). The Tribunal noted that the applicant’s own evidence was that he had had no contact with the woman he claimed to have had a relationship with for years and last saw her in 2007. It found the claim that the woman’s family would have continued interest in him and would harass his family implausible (RD 401 [54]).
7. The Tribunal rejected the applicant’s claim to be bisexual on credibility grounds (RD 401 [55]). The Tribunal considered but rejected any claim that the applicant would face harm on the basis of his caste, noting the applicant’s history was that he had not suffered serious harm in India on that basis and his educational history (RD 401 [56]). The Tribunal then considered whether the applicant might face harm due to the disclosure of his information on the Department’s website including whether he therefore may be harmed due to being a failed asylum seeker but found, in light of country information and an absence of country information supporting the claim, that he would not face harm for this reason (RD 401 [57]-[58]).
8. The Tribunal then considered whether the applicant fell within the complementary protection provisions. It repeated its finding that the applicant is not credible in relation to the central elements of his claims regarding his caste, inter-caste marriage and sexual orientation. It also found that there are not substantial grounds for believing that there is a real risk that the applicant will suffer significant harm in India for reasons of his having applicant for protection in Australia and some of his particulars being published on a departmental website. It noted its findings that the applicant would not face harm in India for that reason and then considered whether the applicant would face any of the forms of significant harm in the Act. It was not satisfied that there was a real risk of such harm (RD 402 [60]).
9. The Tribunal therefore affirmed the decision under review.”
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).
Further, there is nothing on the face of the RRT’s decision record to suggest that its findings and conclusions were not open to it on the evidence and material before it, and for the reasons it gave.
Whilst 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 RRT’s decision record, and none has been identified by the applicant, either in the written grounds of his application filed on 30 April 2014, or in his oral submissions to the court this morning. In the circumstances, the Court is 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 filed on 30 April 2014, should be dismissed with costs.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 11 July 2014
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