SZUZG v Minister for Immigration

[2015] FCCA 1060

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUZG & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1060

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

ADMINISTRATIVE LAW – Allegations that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed to accord procedural fairness to the applicants, failed to consider or investigate the applicants’ claims and its decision was affected by actual bias and was unreasonable.

Legislation:

Migration Act 1958 (Cth), s.36(2)(aa)

Minister for Immigration & Multicultural Affairs & Jia Legeng (2001) 205 CLR 507
Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123

First Applicant: SZUZG

Second Applicant: SZUZH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2426 of 2014

Judgment of: Judge Smith

Hearing date: 13 April 2015

Date of Last Submission: 13 April 2015

Delivered at: Sydney

Delivered on: 13 April 2015

REPRESENTATION

The First Applicant appeared in person

Solicitors for the Respondents: Ms F. Taah of Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The applicants pay the first respondent’s costs fixed in the amount of $3,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2426 of 2014

SZUZG

First Applicant

SZUZH

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore & Revised)

1. This is an application for judicial review of a decision of the Refugee Review Tribunal (“Tribunal”) made on 1 August 2014.  The Tribunal affirmed a decision of a delegate of the first respondent (“Minister”) to refuse to grant the applicants protection visas.  The jurisdiction of this Court in such proceedings is limited to determining whether or not there was jurisdictional error in the Tribunal’s decision.  For the reasons that follow, there is no jurisdictional error and the application will be dismissed.

Background

1. The first applicant is a citizen of India who arrived in Australia on 15 April 2013.  On 2 July 2013, he lodged an application for a protection visa.  Included in that application was another citizen of India who was married to the first applicant.  However as she made no claims of her own, it is convenient to refer to the first applicant as the applicant. 

2. The applicant based his visa application on the fact that he had been a shop owner in Gujarat and used to deliver stock and collect money for some of the small businesses.  After working with some of the businesses for several years, they asked him to deliver their payments to different people in Bombay.  He realised that he was being paid more money than he used to make in his shop and although happy with that, he realised that there was a level of risk involved in the work.

3. One day he came to know that they were dealing with some dangerous people involved in drug dealings and terrorism.  For that reason, he refused to deliver the money from that day and cancelled all the deals that he had with them involving the stock for his shop.  After a month, the police came to his place and arrested him claiming that they had evidence of his stealing money.  The applicant claimed that the people with whom he had previously dealt had bribed the police in order to do that and to harass him every day.  The police also threatened him to keep quiet about the business dealings and about the drugs.  The applicant claimed that he had nowhere to go for his complaints and, therefore, left India for Australia. 

4. The delegate of the Minister made a decision to refuse to grant both applicants a protection visa on 13 December 2013.  The delegate accepted that the applicant was a part owner of a shop, but did not accept that he had a second business in connection with Bombay or that persons with whom the applicant worked were drug dealers and/or involved in terrorism.  The delegate considered it possible that the applicant may have been questioned or held overnight by police, but did not accept that he was of any interest to them or that the police were trying to kill him or that the applicant had provided honest responses in relation to his relationship with his brothers.

5. The applicant applied to the Tribunal for review of that decision.  He attended a hearing on 23 July 2014 and gave evidence and made submissions in connection with the issues that arise in the review.  On 1 August 2014, the Tribunal made its decision to affirm the delegate’s decision.  In brief, the reason for the Tribunal’s decision was that it did not believe what the applicant had said in support of his claims for a protection visa.  It gave a number of reasons for its finding as to the applicant’s credibility.

6. First, it said that the applicant had demonstrated a frequent resistance to providing information at the hearing and would repeatedly evade answering questions and declare a lack of understanding of basic simple question or just repeat questions back to the Tribunal.  It gave four examples of that.  First, in connection with questions as to who wrote the answers in English on his protection visa application form.  Secondly, in connection with the confusing and contradictory responses said to have been given about his contact with his family and relatives in Australia.  Thirdly, about the claimed experiences that had led the applicant to leave India.  Fourthly, in respect of the information given about the business that he had operated in Bombay.

7. Secondly, the Tribunal found that the applicant had given little or no information about certain aspects of his claims at the hearing.  Included in these matters were the business that he claimed to have started in Bombay, the people with whom he dealt who he said were linked to drugs and terrorism, the threats by phone that he received after October 2012 and the desire of those people who had threatened him that he continue his business in Bombay.

8. In addition, the Tribunal noted that the applicant was unable to provide how any information about the people he feared were linked to terrorism or drugs or when he was arrested by the police and could not explain why he believed that the people involved were still trying to kill him.  The Tribunal found that the gaps in the applicant’s evidence went to the basic and core aspects of his claims and so found that none of those claims, in fact, took place.

9. The Tribunal was not satisfied that the applicant was ever threatened or harmed in India by people linked to drugs and terrorism or that he had been detained by, or was of any, adverse interest to the police in India as claimed.  For those reasons, the Tribunal found that there was no chance of risk of harm to the applicant if he returned to India and that he did not satisfy the criteria for the grant of a protection visa. 

Consideration

1. In their application to the Court made on 28 August 2014, the applicants set out four grounds.  At the hearing before me, the applicant did not refer to or rely upon any of these grounds.  Rather, he said simply that if he could get a visa that would be good for him.  Clearly enough, this Court has no power to grant the applicant or any other person a visa and so the argument raised has no merit whatsoever in respect of judicial review.

2. Although it might be inferred from the applicant’s arguments in the Court that he had abandoned the grounds of application, if indeed he was ever aware of them, it is convenient to deal with each of them. 

Ground 1

1. The first ground is that the Tribunal failed to accord procedural fairness to the applicants because of the little weight given to their claims.  The primary difficulty with this ground is that procedural fairness is a matter that goes to the process of the review by the Tribunal rather than to its outcome.  In any event, the ground overlooks the fact that the Tribunal did not simply give little weight to the applicant’s claims.  It rejected them in their entirety.  It did so for the reasons set out above based upon the Tribunal’s assessment of the applicant’s credibility.

2. The first ground is therefore rejected. 

Ground 2

1. The second ground is that the Tribunal failed to consider an integer of the applicant’s claims in failing to consider whether or not the applicant was at risk of significant harm from the people when he refused to deal with them. The reference in this ground to significant harm appears to be a reference to the criterion in s.36(2)(aa) of the Migration Act 1958 (“Act”).  That subparagraph provides:

   … a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm …

2. The Tribunal said at [48]:

   For the reasons outlined above the Tribunal is not satisfied there is a real risk the applicant husband will be subjected to significant harm if returned to India. 

3. It made a similar finding in respect of the second applicant at [51] of its reasons. As I have noted already, the Tribunal’s conclusions were based upon the finding that the applicant’s claims were, in fact, not truthful. And for that reason, the findings at [48] and [51] dealt conclusively with all of the applicant’s claims in connection with the criterion in s.36(2)(aa) of the Act. For that reason, ground 2 in the application is rejected.

Ground 3

1. The third ground is that the Tribunal had no jurisdiction to make the decision because its reasonable satisfaction was not arrived at in accordance with the provisions of the Act. Without any particulars or oral argument in connection with that ground, it is difficult to understand what it means. If it is intended to argue that the decision itself was unreasonable, then it must fail. The decision was based upon findings of fact that were reasonably open on the material and disclosed no misunderstanding of any of the relevant criteria that were applied by the Tribunal.

2. However, it does not appear on a proper reading that ground 3 raises reasonableness in that sense.  Rather in my view, all it does is to take issue with the outcome of the proceeding, namely, that the applicant’s claims were rejected.  That is not a sufficient basis to warrant a finding that there was jurisdictional error in the Tribunal’s decision and the ground is rejected. 

Ground 4

1. Ground 4 of the application is that the Tribunal has failed to investigate the applicant’s claims, especially the grounds of persecution in India and, therefore, the decision was affected by actual bias constituting judicial error.  The assertion of bias and in particular actual bias is a serious one that must be made distinctly and clearly proven: see Minister for Immigration & Multicultural Affairs & Jia Legeng (2001) 205 CLR 507. There is no basis in the material to assert actual bias. Specifically, the unproven assertion that the Tribunal failed to investigate claims does not come close to establishing that the Tribunal had made up its mind or was in any way prejudiced against the applicant.

2. There is no general obligation on the Tribunal to investigate a claim made by an applicant if that is what is intended by the ground.  There were no inquiries here about a critical fact, the existence of which was easily ascertained: see Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123 at [25]. By contrast, the Tribunal in this matter did undertake a review of the delegate’s decision by carefully analysing all of the facts and evidence before it and having given the applicant the opportunity to address his concerns in respect of his claims. For each of those reasons, the fourth ground is not made out.

Conclusion

1. As there is no jurisdictional error in the Tribunal’s decision, the application will be dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:  29 April 2015