SZUPF v Minister for Immigration and Anor

[2016] FCCA 883

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUPF v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 883

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – No matter of principle.

Legislation:

Tribunals Amalgamation Act 2015 (Cth), item 15AG of sch.9

Migration Act 1958 (Cth), ss.36, 474

Federal Circuit Court Rules 2001, r.44.12

General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Agar v Hyde (2000) 201 CLR 552
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429

Applicant: SZUPF

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1768 of 2014

Judgment of: Judge Cameron

Hearing date: 11 April 2016

Date of Last Submission: 11 April 2016

Delivered at: Sydney

Delivered on: 11 April 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms M. Stone of DLA Piper Australia

ORDERS

1. Pursuant to rule 44.12 of the Court’s Rules, the application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $3,326.00.

3. The Administrative Appeals Tribunal replace the Refugee Review Tribunal as second respondent in this proceeding.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1768 of 2014

SZUPF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of India who arrived in Australia on 3 December 2012 as the holder of a visitor’s visa. On 28 December 2012 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that he feared persecution in India from a fundamentalist Muslim terrorist organisation. On 31 July 2013 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.

2. The matter is before the Court for consideration of the applicant’s application that the respondents should show cause why relief should not be granted to him.

3. At a hearing to determine whether an order to show cause should be made, the order will not be made and, instead, the proceedings will be dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 if the applicant does not have an arguable case against the respondents.  The authorities show that such a dismissal will not be ordered except where the lack of a cause of action is clearly demonstrated (General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 per Barwick CJ at 129), the claim is groundless (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 per Dixon J at 91) or there is a high degree of certainty about the outcome (Agar v Hyde (2000) 201 CLR 552 per Gaudron, McHugh, Gummow and Hayne JJ at 575-576).

4. It should be noted that in proceedings for judicial review of a Tribunal decision the Court cannot reconsider the visa application underlying that decision. Its task is to determine whether the relevant Tribunal decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Consequently, to be successful in the present application the applicant had to demonstrate that it was at least arguable that the Tribunal’s decision was affected by jurisdictional error.

5. For the reasons which follow, the application will be dismissed.

Background facts

1. In its decision, the Tribunal summarised the facts alleged in support of the applicant’s claim for a protection visa.  Those matters were further summarised in the Minister’s written submissions which I will paraphrase as follows.

2. The applicant claimed to fear harm in India from Darsgah Jihad-O-Shahadat (“DJOS”).  The applicant claimed that in 2005 he gave a donation to the DJOS and that they returned in 2006 or 2007 seeking a further donation which he refused to make.  The applicant then claimed that as a consequence the DJOS assaulted him.  The applicant further claimed that the DJOS had kidnapped his son in 2008, that he paid money to secure his son’s release and that the DJOS continued to harass his family in India.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act.

2. The Tribunal found several significant aspects of the applicant’s evidence to be inconsistent which led it to find that he was not a credible witness.  In his written submissions the Minister set out those concerns in the following terms which I adopt:

   7.1The RRT considered that the applicant’s failure to apply for protection when he visited the United Kingdom in 2011 and New Zealand in 2012 was inconsistent with his claim to fear harm in India.  Further the RRT considered that the applicant’s reasons for not seeking protection in these countries indicated that he was searching for the best country to immigrate to rather than seek protection.

   7.2The RRT considered that the applicant’s claim that his wife's business was forced to close because of the DJOS was inconsistent with his claim that nothing is happening to his family now that he has left India.

   7.3The RRT considered that the applicant’s claim about his son being kidnapped was inconsistent with his evidence that his sons regularly attended the same educational institution and travelled there by motor bike.

   7.4The RRT found that the applicant’s possession of assets and his financial circumstances were inconsistent with his claim that the DJOS is extorting him and that he is struggling to feed his family. (references omitted)

3. The Tribunal rejected the applicant’s claim to fear harm in India.  In para.39 of its reasons it said this:

   … the Tribunal finds the applicant’s evidence is not credible.  It does not accept that he has been threatened and injured by the DJOS as he claims, that his son was kidnapped by the DJOS, that his wife closed down the child-minding business because of threats from the DJOS or that the DJOS continued to harass and threaten his family in India.  It does not accept that the DJOS will target the applicant to extort money from him, to harass or harm him if he returns to India.  He has not claimed that he will be harmed for any other reason of he returns to India.

Proceedings in this Court

1. In the application commencing these proceedings the applicant alleged:

   1.I am at shock to know why the Tribunal refused my application.  I do believe that the Tribunal made error because the Tribunal misunderstood my claim.

   2.I ask the Honourable Court to assist me in this matter because I am a refugee and my life is at risk.

2. The applicant expanded on his claims and added two more during the course of his address to the Court. 

3. Turning first to the second ground of the application, it is plainly an invitation to the Court to reconsider the applicant’s claim to be entitled to a protection visa.  As explained to the applicant at the show cause hearing, and as stated earlier in these reasons, the Court does not have power to do that. 

4. At the show cause hearing the applicant did not address the first ground of the application in direct terms.  The allegation that the Tribunal misunderstood his claim invited the Court to analyse the Tribunal’s factual findings and to arrive at different conclusions but the Tribunal is the relevant finder of fact and it is not the Court’s role to substitute its view of the facts for that of the Tribunal.  The allegation that the applicant’s claim was misunderstood appears to be linked to a submission made at the show cause hearing that the Tribunal had not given proper consideration to the allegations that he had made.  In that regard, not every allegation the applicant told the Court he made to the Tribunal was shown to have, in fact, been made.  However, the Tribunal’s decision records that it did consider the ones which were.  What the applicant was really alleging by this submission was that the Tribunal had not given his claims the sort of consideration which would have led to a successful outcome of his review.  In substance, he was again challenging the Tribunal’s decision on the merits of his claims and inviting the Court to set the Tribunal’s decision aside on that basis.  As already noted, the Court has no power to do that.  Consequently, that allegation is not arguable.

5. At the show cause hearing the applicant submitted that the Tribunal had simply affirmed the decision of the delegate.  Perusal of the Tribunal’s decision indicates that this is not so and that the Tribunal undertook its own consideration of the applicant’s claims.  This is particularly apparent in those portions of the Tribunal’s reasons where it compared the discrepancies between what the applicant had said to it and what he had told the delegate.  That claim made at the show cause hearing was groundless.

6. At the hearing the applicant also alleged that the Tribunal should have made enquiries into his claims and, in failing to do so, had erred.  The applicant did not attempt to show that his claim fell within the criteria discussed in Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429 such that the Tribunal’s exceptional obligation to make enquiries arose. Nor did the applicant suggest that he invited the Tribunal to make enquiries, so no question of a miscarriage of discretion arises. Presented in this way, this ground too is not arguable.

Conclusion

1. The allegations which the applicant made do not raise an arguable case for the relief claimed. 

2. Consequently, the application will be dismissed. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 18 April 2016