SZUEK v Minister for Immigration

[2014] FCCA 2802

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUEK & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2802

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), ss.36, 411, 412, 425, 425A, 426, 426A, 441A, 441C

Migration Regulations 1994 (Cth)

Minister for Immigration v SGLB (2004) 207 ALR 12

Minister for Immigration v SZIAI (2009) 259 ALR 429

Minister for Immigration v Wu Shan Liang(1996) 185 CLR 259
Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407

First Applicant: SZUEK

Second Applicant: SZUEL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 975 of 2014

Judgment of: Judge Driver

Hearing date: 27 November 2014

Delivered at: Sydney

Delivered on: 27 November 2014

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms A Carr of DLA Piper

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, fixed in the sum of $3,326.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 975 of 2014

SZUEK

First Applicant

SZUEL

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 12 March 2014.  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.  The following statement of background facts relating to the applicants’ protection claims and the decision of the Tribunal on them, is derived from the Minister’s outline of legal submissions.   

2. The applicants are citizens of India and are husband and wife.[1]  The applicants arrived in Australia on 7 February 2013, as holders of Tourist (Subclass 676) visas, which ceased on 7 May 2013.[2]

   [1] Court Book (CB) 34 and 38.

   [2] CB 36 and 39.

3. The applicants applied for a protection (Class XA) visa on 15 March 2013.[3]  The applicant made his own claims for protection.[4]  The second named applicant applied as a member of the applicant's family unit.[5]  The applicant's claims for protection were set out in a statement accompanying the visa applications.[6]

   [3] CB 1-11.

   [4] CB 12-26.

   [5] CB 27-33.

   [6] CB 42-44.

4. The applicant claimed that he was a member of the Congress Party and, consequently, opposed the Bharatiya Janata Party (BJP).  The applicant claimed that threats were made by the BJP to extort money from him because he was a small business owner.  The applicant claimed that when he reported these threats to the police, the BJP attended his residence and assaulted him in front of his family and ransacked his shop.  The applicant claimed that he was depressed by the events in India and, consequently, he suffered ongoing physical and psychological effects.

5. The application was refused on 20 August 2013.[7]

   [7] CB 62-82.

6. The applicant applied to the Tribunal for review of the delegate's decision on 16 September 2013.[8]

   [8] CB 83-88.

7. The applicant gave oral evidence before the Tribunal on 11 March 2014.[9]  The Tribunal handed down its decision on 13 March 2014.[10]

   [9] CB 94-97.

   [10] CB 98.

The decision of the Tribunal

1. The Tribunal found that the applicant was not a credible witness.[11] Particularly, the Tribunal found that the applicant's oral evidence at the hearing was vague and changeable,[12] and in some parts his memory was selective and unreliable.[13]

   [11] See [14] at CB 102.

   [12] See [15] at CB 102.

   [13] See [17] at CB 102.

2. The Tribunal accepted that the applicant generally favoured the Congress Party,[14] however, it held significant concerns whether the applicant was a member or an active party worker^.[15]

   [14] See [18] at CB 102-103.

   [15] See [19] at CB 103.

3. In particular, the Tribunal found the applicant's political knowledge was general and was commensurate with someone of the public who generally favoured the party.[16]  In regards to the applicant's political activities, the Tribunal found the applicant's evidence was uncertain.[17]

   [16] See [19], third dot point at CB 103.

   [17] See [19], second dot point at CB 103.

4. Consequently, the Tribunal found that the applicant was not a member or an active party worker of the Congress Party.[18]  Further, the Tribunal did not accept that the BJP assaulted the applicant, or threatened him or his family in any way.[19]  In light of the inconsistencies in the applicant's evidence, and the vague and changeable nature of the evidence, the Tribunal found that the applicant had fabricated his claims to bolster his claims for protection.[20] Consequently, the Tribunal found that the applicant left India for reasons unrelated to his protection visa claims.[21]

   [18] See [20] at CB 104 and [23] at CB 106.

   [19] See [21] at CB 104-106.

   [20] See [22] at CB 106.

   [21] See [23]-[24] at CB 106.

5. Ultimately, the Tribunal was not satisfied that the applicant had a well-founded fear of Convention related persecution now or in the reasonably foreseeable future.[22]  In regards to complementary protection, the Tribunal noted that the applicant feared general violence and unrest in India.  However, the Tribunal found this did not involve significant harm as this was a real risk that was faced by the population generally.[23]

   [22] See [28] at CB 107.

   [23] See [29] at CB 107.

The present proceedings

1. These proceedings began with a show cause application filed on 9 April 2014.  The applicant continues to rely upon that application.  There are four grounds in the application:

   1.    The Tribunal denied the applicant procedural fairness by reaching adverse conclusions that certain aspects of his claims were implausible, 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.

   2.  The Tribunal's decision is unjust and made without taking into account the full gravity of the applicant's circumstances and consequences of claims.  The Tribunal did not consider the applicant who had been under immense and intimidating pressure from opposition.

   3. 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.

   4.    The applicant satisfy the key elements of the Convention definition as detailed in page 11, 12 and 13 of the Tribunal decision.  The Tribunal has not considered this aspect and therefore committed factual and legal error.

2. The application also asserts that the “Tribunal failed to investigate applicant claim, specially the grounds of persecution in India.  Therefore, the Tribunal decision dated 12 March 2014 was effected by actual bias constituting jurisdictional error”.

3. I received as a submission the applicant’s affidavit filed on 9 April 2014. 

4. I have before me as evidence the court book filed on 13 May 2014. 

5. The application asserts procedural unfairness and actual bias.  The affidavit suggests pre-judgement or bias.  No meaningful particulars have been provided.  I invited the applicant to make oral submissions in support of his case.  He asked me to intervene to provide him with protection.

6. I explained to him that the Court’s jurisdiction is limited to the legal issue of the validity of the Tribunal decision.  He repeated his need for protection and his desire not to return to India.  He did not make any submission on any legal issue. 

7. The Minister’s submissions deal comprehensively with the grounds of review advanced.  I agree with those submissions and adopt them for the purposes of this judgment.

Ground 1

1. The Minister submits that the Tribunal complied with Division 4 of Part 7 of the Migration Act 1958 (Cth) (Migration Act). I agree.

2. Pursuant to s.425 of the Migration Act, the Tribunal invited the applicants to attend a hearing before it to present arguments and evidence before it. This hearing invitation complied with all of the statutory and regulatory requirements.[24]

   [24] See ss.425, 425A, 426, 426A, 441A, 441C of the Migration Act and regulation 4.35D of the Migration Regulations 1994 (Cth)).

3. At the hearing, the applicant informed the Tribunal that the second named applicant was aware of the hearing, but elected not to attend as she was applying for a protection visa as a member of the applicant's family unit.[25]  In these circumstances, the second named applicant was not denied procedural fairness.

   [25] See [12] at CB 101.

4. At the hearing the Tribunal traversed with the applicant the issues dispositive of the review.

5. The Tribunal recorded at [12] of its decision record that the applicant had written in his statement setting out his claims that he was very depressed.  The Tribunal also noted that at the end of the hearing, the applicant stated that he was mentally ill.  The Tribunal noted that there was no supporting evidence of the applicant's mental condition nor did the Tribunal observe anything to suggest that the applicant was suffering from a mental illness.  On the material in the Court Book, there is nothing to suggest that the applicant was not given a meaningful opportunity to present arguments and evidence in support of his case.

6. Contrary to what is asserted the Tribunal did consider the applicant's claims and evidence proffered in support.  However, those claims were wholly rejected on the basis that the applicant was not a witness of truth.  This finding was open to the Tribunal to make as decision-maker par excellence.[26]  Consequently, it was open to the Tribunal to reject the whole factual basis of the claims made for protection.

   [26] Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at [67].

7. At [29] the Tribunal considered the applicant's claims for complementary protection. Particularly, the Tribunal noted that the applicant had claimed to fear violence and unrest in India, however, pursuant to s.36(2B) of the Migration Act, the Tribunal found that this was a risk faced by the population generally and not by the applicant personally. This finding was open to the Tribunal to make on the material and evidence before it and for the reasons it gave.

8. Consequently, Ground 1 does not raise an arguable case for the relief sought.

Ground 2

1. It is clear from the decision record that the Tribunal did consider the applicant's claims and evidence before it against the applicable law as set out at Appendix B to the decision record.  However, the Tribunal rejected the whole factual basis of the applicant's claims on the basis that he was found not to be a credible witness.  This factual finding was open to the Tribunal to make as decision-maker par excellence.

2. Consequently Ground 2 does not raise an arguable case for the relief sought.

Ground 3

1. Contrary to what is asserted, the Tribunal has jurisdiction to review any matters that are “RRT reviewable decisions”.[27]  As the application to the RRT was made on the approved form and within the prescribed time,[28] the Tribunal was correct to assume jurisdiction to review the delegate's decision.

   [27] Pursuant to s.411 of the Migration Act.

   [28] Section 411(1)(c) and s.412 of the Migration Act.

2. As I have found in relation to Ground 2, the Tribunal was unable to reach the requisite satisfaction as it ultimately found that the applicant did not hold a genuine fear of harm if returned to India.  This was a finding that was open to the Tribunal to make on the material and evidence before it and for the reasons it gave.

3. Consequently Ground 3 does not raise an arguable case for the relief sought.

Ground 4

1. Ground 4 seeks to cavil with the Tribunal’s findings and, therefore, invites the Court to engage in impermissible merits review.[29]

   [29] Minister for Immigration v Wu Shan Liang(1996) 185 CLR 259.

2. Further, the Tribunal was not under a general obligation to make inquiries.[30]  Further, this was not a matter in which an obvious inquiry about a critical fact, the existence of which was easily ascertained, arose.[31]  Consequently, the Tribunal was not biased by not making inquiries into the applicant's claims.  In any event, there is nothing to suggest that the Tribunal did not come to the decision-making process with an open mind.

   [30] Minister for Immigration v SGLB (2004) 207 ALR 12 at [43].

   [31] Minister for Immigration v SZIAI (2009) 259 ALR 429 at [25].

3. Consequently, Ground 4 does not raise an arguable case for the relief sought.

4. The Minister’s submissions were read to the applicant by the interpreter before I came on the bench.  He made no comment on them. 

5. I conclude that the applicant has failed to demonstrate an arguable case of jurisdictional error by the Tribunal.

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

7. In consequence of the dismissal of the application, the Minister seeks an order for costs against both applicants in the scale amount applicable at the time the application was filed.  The applicant did not wish to be heard on costs.

8. The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  3 December 2014