SZUYV v Minister for Immigration

[2015] FCCA 2624

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUYV v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2624

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

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Applicant: SZUYV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2383 of 2014

Judgment of: Judge Driver

Hearing date: 23 September 2015

Delivered at: Sydney

Delivered on: 23 September 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr J Pinder of Minter Ellison

INTERLOCUTORY ORDERS

1. The name of the second respondent is amended to the Administrative Appeals Tribunal.

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

3. The applicant is 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 2383 of 2014

SZUYV

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal).  The decision was made on 7 August 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. 

2. The applicant is from India and had made claims for protection based, in particular, upon his religion and issues arising out of his family relationships.  The applicant is a Hindu born in a lower caste family of untouchables and married a Sikh woman in order, in his words, to find a better future.  He claims to have experienced harm in India from his wife’s uncle and other males who ransacked his business and physically attacked him. 

3. The applicant entered Australia as the dependant of his spouse on 23 August 2009.  He was divorced on 19 December 2012, although the order became absolute on 20 January 2013.  He fears that if he returns to India his wife’s relatives will kill him. 

4. The applicant was interviewed by the Minister’s delegate on 20 January 2014.  The delegate rejected the protection visa application.  That decision was made on credibility grounds and took into account documents provided by the applicant. 

5. The applicant sought review before the Tribunal.  The Tribunal was unable to make a favourable decision on the papers and, by letter dated 1 July 2014, invited the applicant to attend a hearing.  The applicant did not receive that letter, but the Tribunal was able to contact him and arrange for him to attend a hearing at short notice. 

6. The Tribunal records at [11] of its reasons[1] that at the hearing the applicant discussed his claims and documents, and answered the Tribunal’s questions.  The Tribunal records from [16] of its reasons[2] numerous concerns with the credibility of the applicant's claims.  These concerns included the Tribunal’s findings on inconsistency and contradiction in the applicant's evidence, particularly in relation to whether and how he had complained to the Indian police.                  

   [1] Court Book (CB) 135

   [2] CB 135

7. The Tribunal considered the affidavits provided by the applicant in support of his claims, but the Tribunal had similar concerns about the documents to those of the delegate.  The Tribunal was likewise concerned about the applicant's attempt to raise additional factual matters before the Tribunal; his remaining living at the family home after alleged death threats; and delay in lodging a protection visa application.  The Tribunal concluded at [33] of its reasons[3] that the applicant was not a witness of truth and had fabricated an account of events upon which he based his protection claims. 

   [3] CB 139

8. The Tribunal went on to consider additional matters before concluding at [43][4] that the applicant had fabricated his claims to being specifically targeted for harm and/or threats, and that he did not face a real chance of serious harm in the reasonably foreseeable future on the bases he asserted.  Because the Tribunal had rejected the applicant's factual claims, it also concluded that he did not qualify for complementary protection. 

   [4] CB 141

9. These proceedings began with a show cause application filed on 25 August 2014.  The applicant has not taken up the opportunity I afforded him on 2 October 2014 to file and serve an amended application and additional evidence.  He relies on his original application, which contains three grounds:

   1. The Refugee Review 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 failed to consider an integer of the applicants claim, in failing to consider whether or not the applicant in India was at risk of harm from in-laws, and not able to access effective protection.

   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.

10. The application is supported by a short affidavit, paragraph 1 of which I received as evidence.  Paragraph 2 I received as a submission. 

11. I also have before me the court book filed on 10 October 2014. 

12. I invited oral submissions from the applicant concerning his grounds of review.  His focus of attention was on Ground 1.  The applicant is concerned about the Tribunal’s treatment of the documents he submitted in support of his claims.  He asserts that the Tribunal should have given weight to his documents.  The documents in issue are reproduced at CB 64.  It is plain from the delegate’s decision[5] that the documents were rejected by the delegate for credibility reasons.  The delegate gave no weight to them.  The applicant was therefore on notice that the credibility of his documentary evidence, as well as his claims in general, would be an issue in the review. 

    [5] CB 88

13. Although the precise details are not known, it is apparent from the Tribunal’s decision record that the Tribunal’s credibility concerns, including its concerns relating to the documents, were discussed at the hearing conducted by the Tribunal.   The Tribunal considered the documents at [28]-[32] of its reasons[6].  The conclusions reached by the Tribunal were open to it on the material before it, and there was no procedural unfairness in the Tribunal’s approach to that issue. 

    [6] CB 138-139

14. The applicant also expressed concern that he was unable to produce his original Indian passport to the Tribunal.  The Tribunal mentions that at [13] of its reasons[7], but it is apparent that the Tribunal accepted the applicant's photocopy of the relevant pages as establishing his identity and nationality. 

    [7] CB 135

15. It is true that there is a further discussion about the applicant's passport at [37] of the Tribunal’s reasons.  The Tribunal there recites a matter of detail dealt with by the delegate.  It does not appear to me that any dispositive issue was raised before the Tribunal from the simple fact that the applicant did not have available his original passport. 

16. More generally, there was in my view no procedural unfairness in the Tribunal reaching adverse credibility conclusions about the applicant's claims.  Those concerns were certainly not limited to any issue of implausibility, and the conclusions reached by the Tribunal were available to it on the material before it, and were reached after a fair hearing process.

17. There is also in my opinion no substance to the second ground of review.  I am satisfied on the available material that the Tribunal did consider all elements or integers of the applicant's claims. 

18. The third ground of review is in template form and lacks particulars.

19. In my view, there is no arguable case that the Tribunal breached any relevant and applicable provision of the Migration Act 1958 (Cth). I conclude that the applicant has failed to establish an arguable case of jurisdictional error by the Tribunal.

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

21. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale applicable at the time the application was filed.  The applicant claims impecuniosity but, as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order.  I have no difficulty in accepting that scale costs have been reasonably and properly incurred on behalf of the Minister in responding to the application. 

22. I will order that the applicant is 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 twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  29 September 2015