SZUND v Minister for Immigration

[2015] FCCA 1338

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUND v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1338

Catchwords:

MIGRATION – Review of Refugee Review Tribunal decision – application to show cause – whether applicant has raised an arguable case for the relief he seeks – whether it is in the interests of justice to dispense with r.44.13(1) of the Federal Circuit Court Rules 2001 (Cth) – no arguable case demonstrated – application dismissed.

Legislation:  

Federal Circuit Court Rules 2001 (Cth), rr.1.06, 44.12(1)(a), 44.13, 44.13(1)

Applicant: SZUND

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1621 of 2014

Judgment of: Judge Manousaridis

Hearing date: 13 May 2015

Date of Last Submission: 30 April 2015

Delivered at: Sydney

Delivered on: 13 May 2015

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the First Respondent: Ms S. Given of
Sparke Helmore Lawyers

ORDERS

1. Pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $3,326.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1621 of 2014

SZUND

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The first respondent (Minister) seeks an order under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) that the application for review be dismissed, because the application does not raise an arguable case for the relief it seeks.  The application in question seeks judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the Minister not to grant the applicant a protection visa.

2. The applicant’s claims for protection were initially set out in a document dated 22 April 2013.[1]  In that document, the applicant, who is a national of India, stated as follows.  He married his ex-wife, an Australian permanent resident, in India in 2007.  In 2008 he travelled to Australia in order to start “a prosperous life in a good country”.  The applicant, however, was insulted and humiliated by his wife from the very first day.  The applicant and his wife eventually parted ways and divorced in 2010.

   [1] CB73-74

3. After the divorce, the applicant’s family in India received threats that the applicant will be killed as soon as he returns to India.  The applicant believed his ex parents-in-law were behind the threats, and, because of the political links the applicant’s ex-wife’s family had, the applicant was confident the threats would be carried out.

4. The applicant’s mother was threatened on two occasions.  The first occurred when the applicant’s mother was grocery shopping.  She was stopped by four men who asked the applicant’s mother when the applicant would be returning to India.  The men told the applicant’s mother they would find out when the applicant is returning, and would kill the applicant on arrival.  The applicant’s parents wanted to lodge a complaint with the police but the police refused to take the complaint.  The applicant did not state the date on which this incident occurred. 

5. The second occasion on which threats were made, according to the document dated 22 April 2013, occurred when five men barged into the applicant’s parents’ home asking when the applicant would return to India, and saying that they would take revenge on the lost honour of the applicant’s ex-wife for the marriage and divorce.  The applicant’s parents approached the police to file a complaint, but the police “who seemed to be a party to this refused to lodge an FIR”.  The applicant also did not state the date on which this second incident occurred.

6. The applicant claimed that divorce is a stigma in Indian society.  He claimed he will be killed by his ex-wife’s relatives in India and fears that the Indian authorities will turn a blind eye should the applicant be killed, as his ex-wife’s relatives are influential and have a good relationship with the authorities. 

7. On 24 April 2013 the delegate interviewed the applicant.  The applicant was unable to state when the two incidents involving his parents occurred.  He also claimed that the police took no action in relation to the entry into his parents’ house. 

8. On 6 May 2013 the applicant provided to the delegate what purported to be three affidavits and a complaint to police.  One affidavit purports to have been made by the applicant’s mother.[2]  In that affidavit, it is claimed that on 7 June 2009 the applicant’s mother was stopped by four unidentified persons while returning home from market at night.  The men threatened the mother to disclose the whereabouts of the applicant.  The four men fled after the applicant’s mother raised the hue and cry. The affidavit further states that on 4 March 2013, at around 4.30 pm, five unidentified men walked into her house and asked where the applicant was.  They said they were going to “take revenge and retract” the lost honour of the applicant’s former wife.  The applicant’s mother and father “moved a written application at the police station on the 4/3/2013”.  The affidavit states that that application to the police and the English translation were attached to the affidavit.  The affidavit states that the “investigation of my complaint is still pending with the police”.

   [2] CB76

9. The second document the applicant provided purported to be a complaint to the police.  The document refers to “five/six unidentified persons” came to their house asking where the applicant was and “repeatedly threatened to kill my son”. 

10. The third document purports to be an affidavit from the applicant’s father.  That document states that at about 4.30pm on 4 March 2013, five unidentified persons barged into their home and asked his wife where the applicant was, when the applicant would return to India, because they wanted to take revenge for the dishonour done to the applicant’s former wife.  The father and mother reported the matter to police and the “investigation of this case is still pending with the police”. 

11. The fourth document purports to be an affidavit of a neighbour of the applicant’s parents.  It states that on 4 March 2013, the neighbour and his wife “saw that four or five persons were grappling and giving abuses to” the applicant’s parents. 

12. After the delegate’s decision, the applicant produced to the Tribunal a document titled “A Joint Statement”,[3] which purports to be a statement of four persons who are neighbours of the applicant’s parents and who say that at 4.30 pm on 4 March 2013 they observed five men threatening the applicant’s parents.  

    [3] CB143-144

13. The Tribunal accepted the applicant married an Australian permanent resident in 2007 and arrived in Australia on 10 April 2008; that the applicant and his wife separated in January or February 2009; an apprehended violence order was issued against the applicant and that on 29 July 2010 he and his wife divorced.  The Tribunal otherwise found the applicant fabricated his claims for protection and the documents on which he relied to support those claims.  It so found for the following reasons.

14. First, in his April 2013 statement, the applicant stated that his parents received a series of threats “since the day we divorced”.  The date of the first incident, as related in the purported affidavit of the applicant’s mother, was 7 June 2009, more than one year before the day on which the applicant divorced, namely, 29 July 2010. 

15. Second, the documents did not support the claim made in the April statement that since the day the applicant was divorced, his parents “received a series of threats”.  The point here appears to be that the affidavits only refer to two incidents, and two incidents cannot properly be characterised as a “series of threats”. 

16. Third, before the delegate, the applicant said that the police took no action on the complaint made by his parents because his parents failed to recognise the men that had entered their home.  On the other hand, the purported affidavit of the father states that the investigation is still pending with the police. 

17. Fourth, the purported neighbours who signed the joint statement stated that they had known the applicant for 21 years.  That was inconsistent, the Tribunal found, with evidence the applicant gave that one of the four signatories was a new neighbour. 

18. Fifth, there is nothing in the “Joint Statement” to indicate it was a translation, yet the applicant said that few people speak English in his village.

19. Sixth, there is no indication the affidavits are translations, yet the applicant gave evidence that neither of his parents reads or writes English.  

20. Seventh, the Tribunal found it implausible that relatives of the applicant’s ex-wife or their agents would suddenly barge into the applicant’s parents’ home on 4 March 2013, being three days after the applicant applied for a protection visa, having made no threats since 7 June 2009.

21. Eighth, the Tribunal found it implausible that the relatives of the applicant’s ex-wife maintain a desire to take revenge against the applicant more than five years after the applicant and his wife separated, and almost four years after they divorced. 

22. The application for review filed by the applicant raises two unparticularised grounds for why the court should grant the applicant the relief he seeks.  These are:

    (1)The decision of Refugee Review Tribunal involves jurisdictional error.

    (2)The Tribunal ignored relevant material. 

23. At the hearing, the applicant, who is not legally represented, submitted that he has been living in peace in Australia since 2008, working and paying tax, that he has taken this country to be his country, and he wanted to use his energies for this country.  Although I have great sympathy for the applicant’s desire to remain in Australia, that desire and the reasons underlying it are irrelevant to whether the Tribunal made any jurisdictional error and are irrelevant to the tasks this Court has to undertake on this application. 

24. In relation to ground 1 stated in the application, although the applicant said a number of things which were not relevant to the ground, the submission he ultimately made was that the Tribunal erred in holding that the documents on which he relied were fabricated.  That, by itself, does not disclose an arguable case for relief.  The Tribunal does not make a jurisdictional error merely by making a finding of fact with which a court may disagree.  The Tribunal may, of course, make a jurisdictional error if it makes a finding on the basis of material which cannot reasonably support that finding.  However, in this case, there is no arguable case for contending it was not reasonably open to the Tribunal to conclude, as it did, and for the reasons on which it relied, that the documents on which the applicant relied were fabricated. 

25. As for the second ground, again, although the applicant made statements that did not relate to the ground, ultimately, as I understood him, he submitted the Tribunal did not take into account the fact that his life would be in danger if he returns to India.  It is not arguable that the Tribunal did not take that into account.  That was the very claim the applicant made to the Tribunal, and it is that claim which the Tribunal considered and determined, unfortunately, against the applicant. 

26. Accordingly, if I were to consider only the grounds contained in the application, I would dismiss the application because they disclose no arguable case for the relief the application seeks.  However, after Ms Given, who appeared for the Minister, made her submissions, the applicant, as I understood him, said that one possible reason the unidentified persons entered his parents’ home on 4 March 2013 is that he had recently lost his application before the Migration Review Tribunal, and that he had told his parents that he would be returning to India, and that is why, perhaps, persons in India found out he was returning.

27. I asked the applicant whether he had put that to the Tribunal.  The applicant initially said he had, then he said he was not sure, but then a little later again, as I understood him, he said that he thought he did.  The question arises whether what the applicant said about what he said, or may have said to the Tribunal, should prevent me from dismissing the application. 

28. Rule 44.13(1) of the FCC Rules provides that:

    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.

29. The Court does have power to permit an amendment to an application, and the Court does have power to dispense with rules, including r.44.13, if it is in the interests of justice to do so. The power of dispensation is contained in r.1.06 of the FCC Rules. The question, therefore, is whether it is in the interests of justice that I should deal with the application that is before me today on the basis that it may be the case that the applicant informed the Tribunal that one possible reason the unidentified persons entered his parents’ home on 4 Mach 2013 is that he had recently lost his application before the Migration Review Tribunal, and that he had told his parents that he would be returning to India.

30. In my opinion, it would not be in the interests of justice to do so.  First, the applicant has had an opportunity to put on evidence of the hearing before the Tribunal.  He could have done that by obtaining a transcript of the hearing, or by obtaining an audio recording of the hearing or, indeed, by making an affidavit in which he set out his recollection of what occurred at the hearing.  Directions for the filing of affidavits were made by me on 6 August 2014, and I note that order 3, which provided for the applicant filing and serving affidavit material, made specific reference to the filing of a transcript of the hearing.

31. The applicant said he did not file any affidavits because he did not know what to do, because he could not obtain legal representation for lack of funds. That may or may not be true. It is not, however, an adequate explanation for not complying with the Court’s directions. To accept such explanation as adequate would invariably lead to hearings being adjourned as a matter of course, where it is claimed something occurred at the hearing before the Tribunal and the applicant has not brought evidence of what occurred before the Tribunal. For that reason alone I would not dispense with compliance with r.44.13(1).

32. Secondly, and independently of the first reason, there is a question of whether there would be any utility in dispensing with r.44.13 and permitting an amendment. That requires me to assess whether the applicant would have some prospects of successfully claiming the Tribunal made a jurisdictional error by not referring in its reasons to the explanation the applicant says he may have given to the Tribunal about why unidentified persons may have entered his parents’ home on 4 March 2013.

33. In my opinion, the applicant would not have reasonable prospects of being able to demonstrate that the Tribunal’s not referring to any such explanation resulted in its decision having been made in jurisdictional error.  The mere fact that the Tribunal did not refer to an explanation does not necessarily mean it did not consider it, assuming it was made.

34. I do not therefore propose to dispense with r.44.13 of the FCC Rules. It therefore follows that I propose to order that the application be dismissed, pursuant to r.44.12(1)(a), and that the applicant pay the Minister’s costs.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  21 May 2015