SZUMT v Minister for Immigration

[2015] FCCA 257

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUMT v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 257

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of a show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.411, 412

Chen v Minister for Immigration [2011] FCAFC 56
Minister for Immigration v Jia (2001) 205 CLR 507
Minister for Immigration v SZIAI (2009) 259 ALR 429
Minister for Immigration v SZJSS(2010) 243 CLR 164
Minister for Immigration v SZNSP (2010) 184 FCR 485
Minister for Immigration v SZNVW & Anor (2010) 183 FCR 575
Re JRL; Ex parte CJL (1986) 161 CLR 342
Re Minister for Immigration; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59
Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407
Re Refugee Review Tribunal; Ex parte H(2001) 179 ALR 425
SBBS vMinister for Immigration (2002) 194 ALR 749
SCAA v Minister for Immigration [2002] FCA 668
VFAB vMinister for Immigration (2003) 131 FCR 102
WABCof 2002 v Ministerfor Immigration [2002] FCAFC 286

Applicant: SZUMT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1575 of 2014

Judgment of: Judge Driver

Hearing date: 9 February 2015

Delivered at: Sydney

Delivered on: 9 February 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms M Stone 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 applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 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 1575 of 2014

SZUMT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application to review a decision of the Refugee Review Tribunal (Tribunal).  The decision was made on 28 May 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from Kerala State in India and had made claims of political persecution.

2. The following statement of background facts relating to the applicant’s claims to protection and the decision of the Tribunal is derived from in the Minister’s outline of written submissions filed on 30 January 2015. 

3. The applicant is a male citizen of India born on 10 December 1974.[1]  He arrived in Australia on 27 May 2013 as the holder of a Visitor (Subclass 600) visa.[2]

   [1] Court Book (CB) 27.

   [2] CB 166.

4. The applicant applied for a Protection (Class XA) visa on 4 July 2013.[3]  His claims were set out in a statement accompanying the application.[4]

   [3] CB 1-26.

   [4] CB 35-37.

5. The applicant claimed that, during his schooling, he was an active member of the student wing of the Communist Party.  The applicant claimed that, he became an active member of the youth wing and then the Communist (Marxist) Party of India.  The applicant claimed that he later resigned from the party due to diverging ethics and, consequently, on 12 November 2006, he joined the Indian Union Muslim League (IUML).

6. In 2008, the applicant claimed that his store was demolished by the government and, since then, he had been involved in an ongoing court action with a Communist Party linked person, Mr Kunhambu.

7. On 15 November 2009, the applicant was involved in a procession, which turned into a riot.  The applicant claimed that he was injured by members of the Communist Party and was admitted to hospital.

8. On 25 October 2011, the applicant claimed that, upon returning from his shop with his wife, he was attacked, causing injury to his spine.  The applicant claimed that he was also threatened if he continued the court action against Mr Kunhambu.  The applicant claimed that the police would not take any action for the attack.  The applicant claimed that, if returned to India, he would be killed by members of the Communist Party.

9. The application was refused by the delegate on 7 January 2014.[5]  The applicant applied to the Tribunal for review of the delegate's decision on 20 January 2014.[6]

   [5] CB 65-79.

   [6] CB 80-86.

10. The applicant gave oral evidence before the Tribunal on 8 May 2014 and 20 May 2014.[7]  The applicant made further claims before the Tribunal.

    [7] CB 119-121, 129-130.

11. The applicant claimed that, in 1997, his political opponents brought charges against him and his business partner for selling “forged” cigarettes.  The applicant claimed that he was convicted and imprisoned for a week.

12. The applicant claimed that he and his friend assisted the IUML to improve its political standing, which antagonised the Communist Party.  The applicant further claimed that, in 2008, he stood for election which demonstrated that he was a political threat.

The decision of the Tribunal

1. The Tribunal found that the applicant was not a reliable witness.[8]

   [8] See [15] at CB 287 and [56] at CB 298.

2. The Tribunal found it difficult to match the applicant's broad claims with his supporting evidence.[9]  Further, the Tribunal found that some of the applicant's evidence appeared to have been prepared specifically for his protection visa application.[10]

   [9] See [17] at CB 287-288.

   [10] See [18] at CB 288-289,

3. The fact that the applicant travelled to the United Kingdom from July-October 2011, and returned to India without having applied for protection in the United Kingdom, cast strong doubt on the applicant's need for protection prior to late 2011.[11]

   [11] See [17] at CB 287-288, [19] at CB 289, [46] at CB 294 and [56] at CB 298.

4. The Tribunal accepted that the applicant was subject to charges in 1997, but it did not accept that this was the trigger for the applicant to have joined the IUML.[12]   The Tribunal was prepared to accept that it was plausible that the applicant joined the IUML,[13] however, it was not satisfied that the applicant worked for the IUML or had an extensive role.[14]

   [12] See [28] at CB 290.

   [13] See [29] at CB 290.

   [14] See [31] at CB 291.

5. The Tribunal found that one of applicant's business had been demolished in 2008, but that the applicant continued to have property in his local area and, therefore, this suggested that the applicant was not subject to a determined campaign by the Communist Party.[15]  Further, the Tribunal found that the applicant's protracted legal dispute with Mr Kunhambu was not essentially political in nature and did not form the basis for any feared persecution.[16]The Tribunal found that the applicant had fabricated his claims that the Communist Party had targeted him.[17]

   [15] See [36] at CB 292 and [57] at CB 298.

   [16] See [39] at CB 292.

   [17] See [50] at CB 295.

6. Consequently, the Tribunal found that there was not a real chance that the applicant would suffer serious harm,[18] or significant harm,[19] if returned to India.

   [18] See [59] at CB 298.

   [19] See [61]-[62] at CB 298-299.

The present proceedings

1. These proceedings began with a show cause application filed on 11 June 2014.  The applicant continues to rely on that application.  The grounds in that application are:

   1.    The Tribunal constructively failed to exercise its jurisdiction.

   Particulars

   The applicant provided documents to the Tribunal to corroborate his claims.  The Tribunal failed to engage in an active intellectual process of these documents.  The Tribunal ultimately gave the documents no weight on the basis of credit findings.  It was an error for the Tribunal to place no weight on the documents without engaging to the contents of these documents.  It was an error for the Tribunal to assess the applicant's credit without first assessing whether the substance of the documents corroborated his claims.

   2. 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.

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

   4. The Tribunal exceeds is jurisdictional or constructively failed to exercise its jurisdiction or denied my procedural fairness in that the Tribunal did not investigate my genuine claim with the requirements of the Migration Act 1958.

2. I have before me as evidence the court book filed on 7 July 2014.  I also received a short affidavit filed by the applicant with his show cause application.

3. Both the applicant and the Minister prepared written submissions.  The applicant’s submissions raised for the first time an allegation of actual bias.

4. Annexed to the applicant’s submissions are photocopies of documents which the applicant believes might have made a difference before the Tribunal.  The applicant told me that he obtained those documents after reading the Tribunal decision.  I declined to receive those documents as evidence on the basis that they had no relevant bearing on the validity of the Tribunal decision. 

5. The Minister’s written submissions deal comprehensively with the grounds of review in the show cause application.  I agree with those submissions.  Subject to my oral observations, I adopt the Minister’s submissions.

Ground 1

1. At appendix A to the Tribunal’s decision record, the Tribunal set out all of the material before it, which included a comprehensive list of the documents provided by the applicant in support of his application.  Throughout the decision record, the Tribunal made various references to the documents and noted the weight it gave to those documents.  Contrary to what is asserted, the Tribunal engaged with all of the documents and made findings in relation to the weight it placed on those documents.  It is well established that the weight the Tribunal placed on the documents was a matter for the Tribunal only.[20]  Further, and moreover, the Tribunal did not fall into error by first making an assessment of the applicant's credit before giving consideration to the corroborative evidence.[21]

   [20] Minister for Immigration v SZJSS(2010) 243 CLR 164.

   [21] Minister for Immigration v SZNSP (2010) 184 FCR 485; Chen v Minister for Immigration [2011] FCAFC 56 at [35].

2. The applicant’s oral submissions focused in particular on the Tribunal’s treatment of his documents produced to corroborate his claims.  I can find no fault in the way the Tribunal dealt with those documents.  This is not a case of the Tribunal declining to take into account documentary evidence.  The Tribunal considered the documents produced by the applicant on their face and on their merits.

3. The applicant’s difficulty is that the documents did not enhance his claim and, in some respects, detracted from it.  The applicant contended that the Tribunal should have made additional inquiries, in particular to his assertion of physical injuries.  However, he was not able to point to a particular inquiry that the Tribunal might have made which would have been readily available and potentially determinative.  In my view, the Tribunal was entitled to make its decision on the basis of the material before it. 

Ground 2

1. In so far as this ground contends that the Tribunal lacked jurisdiction and, that the Tribunal did not comply with its statutory obligations, this cannot be made out at a factual level.

2. The Tribunal has jurisdiction to review any matters that are “RRT reviewable decisions”.[22]  As the application to the Tribunal was made on the approved form and within the prescribed time,[23] the Tribunal was correct to assume jurisdiction to review the delegate's decision.

   [22] Pursuant to s.411 of the Migration Act 1958 (Cth) (Migration Act).

   [23] Sections 411(1)(c) and 412 of the Migration Act.

3. Further, the Tribunal clearly set out the relevant law, the applicant's claims, the evidence and material before it and its ultimate findings and reasons.  However, the Tribunal was unable to meet the requisite satisfaction as it ultimately rejected the factual basis of the applicant's claims on the basis that the applicant was found not to be a credible witness.  This credibility finding was open to the Tribunal to make as decision-maker par excellence.[24]

   [24] Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407, 423.

Ground 3

1. The Tribunal set out in its decision record, the relevant law and the applicant's claims, particularly at [21]-[36] of its decision record where the Tribunal considered the applicant's political and business interests which involved claims regarding the Communist Party.  However, these claims were wholly rejected for reason that the applicant was found not to be a credible witness.  The findings made by the Tribunal were reasonably open to it to make on the material and evidence before it and for the reasons it gave.

Ground 4

1. Contrary to what is asserted in ground four, it was for the applicant to put arguments and evidence before the Tribunal to make out his claims for protection.  The Tribunal is not obliged to conduct inquiries in order to gather information to support an applicant's claims.[25]  Further and moreover, the applicant has not pointed to an obvious inquiry that the Tribunal could have made about a critical fact, the existence of which was easily ascertained, such as to establish a duty to inquire.[26]

   [25] Minister for Immigration v SZNVW & Anor (2010) 183 FCR 575 at 586.

   [26] Minister for Immigration v SZIAI (2009) 259 ALR 429 at 434-436.

Ground raised in written submissions

1. The applicant's written submissions assert that the Tribunal’s decision is affected by actual bias on the basis that the Tribunal's findings and reasons are not properly justified under the Migration Act 1958 (Cth).

2. Bias is a serious allegation and needs to be proven by way of evidence.[27]   It has been held to be a rare case where it will be possible to establish bad faith or bias on the basis of the Tribunal's reasons alone.[28]  The mere fact of adverse findings does not, in itself, reveal bias or prejudgment,[29] nor does bias necessarily arise from illogical or irrational decisions or inferences.[30]  To the extent that an apprehension of bias might be alleged, to afford procedural fairness, all that is required is for the Tribunal to be open to persuasion.[31]  As the Tribunal is an inquisitorial body, the Tribunal will often have to vigorously test the evidence.^.[32]

   [27] Re JRL; Ex parte CJL (1986) 161 CLR 342, 352; Minister for Immigration v Jia (2001) 205 CLR 507 (Jia Legeng), 531 [69], 546 [127]; SBBS vMinister for Immigration (2002) 194 ALR 749, 756; VFAB vMinister for Immigration (2003) 131 FCR 102, 107

   [28] SCAA v Minister for Immigration [2002] FCA 668 at [38].

   [29] WABCof 2002 v Ministerfor Immigration [2002] FCAFC 286 at [3].

   [30] Re Minister for Immigration; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 at [52], [75], [99]-[100].

   [31] Jia Legeng at [72] and [86].

   [32] Re Refugee Review Tribunal; Ex parte H(2001) 179 ALR 425 at [30].

3. As noted above, the Tribunal invited the applicant to a hearing to present his evidence and arguments and issues dispositive of the review were traversed at the hearing.  On the face of the decision record, there is nothing to suggest that the Tribunal member brought a closed mind to the hearing.  Further, it is clear from the decision record that the Tribunal considered all of the applicant's claims and evidence before it, however, it could not reach the requisite level of satisfaction to grant the applicant a protection visa.  The findings made by the Tribunal were open to it on the material before it and for the reasons it gave. 

4. Further, the allegation of bias in the applicant’s submissions is not supported by any evidence.  The applicant did not take up the opportunity afforded to him in the directions I made on 3 July 2014 to file and serve additional evidence.  The applicant contended, from the bar table, that he was spoken to discourteously by the Tribunal member at the second hearing on 20 May 2014.

5. In the absence of a transcript, that assertion does not go anywhere.  The applicant conceded during the course of argument that his failure to obtain a Tribunal transcript was a mistake and he sought the opportunity to do so.  I declined that request on the basis that the applicant had already had a fair opportunity to produce supportive evidence.

6. The applicant is concerned that the opportunity afforded to him before the Tribunal was not a fair one.  I disagree.  The Tribunal met its statutory obligations.  The applicant was invited to a hearing which was conducted over two days.  When, on the first day, interpretation difficulties were claimed, the Tribunal changed the interpreter.  The Tribunal afforded the applicant and his advisers a fair opportunity to present his documentary material, and his case generally, in the best way. 

7. The applicant has failed to establish any arguable case of jurisdictional error by the Tribunal. 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).

8. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant indicated that he may require time to pay.  I will not require payment of costs by any particular time.

9. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 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 forty (40) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  11 February 2015