SZVDS v Minister for Immigration

[2016] FCCA 277

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVDS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 277

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (class XA) visa – Show Cause – whether the Tribunal failed to consider an integer of the applicant’s claims – whether the Tribunal failed to put adverse information to the applicant – no jurisdictional error – application dismissed.

Legislation:

Federal Circuit Court Rules 2001, r.44.12

Migration Act 1958 (Cth), ss. 36(2)(a), 36(2)(aa), 424AA, 476

Applicant: SZVDS

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3034 of 2015

Judgment of: Judge Street

Hearing date: 12 February 2016

Date of Last Submission: 12 February 2016

Delivered at: Sydney

Delivered on: 12 February 2016

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents: Ms M Stone
DLA Piper

ORDERS

1. The application is dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3034 of 2015

SZVDS

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of a Tribunal made on 19 October 2015 affirming a decision of the delegate not to grant the applicant a Protection visa.

2. The applicant was found to be a citizen of Georgia and his claims were as against that country.  The applicant arrived in Australia on 8 December 2012 as the holder of a Business (Short Stay) visa (subclass UC 456).  That visa ceased on 8 January 2013.  On 8 January 2013 the applicant applied for protection, and lodged a Protection (class XA 866) visa. 

3. The applicant claimed to fear harm due to his work as a security employee in the Georgian penitentiary system.  The applicant claimed in 2006 he witnessed abuses of inmates by his colleagues under orders from their superiors.  The applicant claimed he was threatened not to disclose or report what he witnessed, and that he was subsequently dismissed from his job, and that he was monitored and put under surveillance. 

4. The applicant claimed to fear harm from the authorities, as he was perceived to be against the government.  The applicant claimed to fear harm from former inmates, claiming that he had been assaulted by a former inmate while working as a taxi driver.  The applicant also claimed that he had been approached by officials of the new government to testify against the former government, and that he had been summonsed to give evidence at an inquiry.  The applicant produced three summonses in that regard.

5. On 17 December 2015 a Registrar of the Court fixed the matter for hearing today, for a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001.  The Registrar also made orders permitting the applicant to have an opportunity to file an amended application, affidavit evidence, and submissions.  No such documents were filed.  At the commencement of the hearing the Court explained to the applicant the nature of the show cause hearing, and the applicant confirmed that he understood that explanation. 

6. The grounds of the application are as follows:

   1. The decision maker made a jurisdictional error by not considering all relevant to me case documents provided.

   2. The AAT decision as affected by non-compliance with the procedural requirements.

   3. I was denied a procedural fairness. 

   4. The Tribunal decision was not made according to law.

7. There had been an earlier Tribunal hearing on 1 September 2014, which was set aside by an order of a Court on 31 March 2015.  By letter dated 30 June 2015 the applicant was invited to attend a hearing before the Tribunal, to take place on 1 October 2015.  The applicant appeared on that date to give evidence and present arguments, and was assisted by an interpreter.  The applicant was also represented by his registered migration agent. 

8. In the course of the hearing it is clear that the Tribunal raised with the applicant concerns as to the genuineness of the three summonses upon which the applicant relied. It is also apparent from the Tribunal’s reasons that, during the hearing, the Tribunal raised with the applicant concerns in relation to the business visa application and supporting documents, consistent with s.424AA. The applicant said all the documents were fraudulent and were made by someone else.

9. The applicant requested additional time to respond to the consequence of the documents being fraudulent.  Further submissions were put on before the Tribunal after the hearing purporting to identify the basis upon which the summonses were said to be genuine, and providing information in relation to the applicant’s work at the penitentiary. 

10. The Tribunal made adverse findings in relation to the applicant’s credibility in respect of the claims advanced, and found that most but not all of the documents submitted by the applicant in order to obtain the business visa were fraudulent, and found that the applicant was involved in that fake business visa process.  The Tribunal identified the inconsistency between the information in the visa documents, with the claims of the applicant.  The Tribunal found that the documents provided by the applicant in relation to his alleged work at the penitentiary were fraudulent, as were the summonses. 

11. It was in those circumstances the Tribunal found the applicant was not a credible witness, and was not satisfied the applicant was as person in respect to whom Australia had a protection obligation, and was not satisfied that the criteria under s.36(2)(a) or s.36(2)(aa) were made out. The Tribunal did not accept as true any of the applicant’s claims of fearing harm in Georgia, and found his application to be opportunistic.

12. In relation to ground 1, the reasons of the Tribunal show that it considered the applicant’s claims, and ground 1 fails to make out any arguable jurisdictional error. 

13. In relation to ground 2, that the Tribunal complied with the statutory regime by inviting the applicant to attend at a hearing, and the applicant had a genuine hearing, and the live issues of fraudulent documents were clearly raised at that hearing with the applicant.  Ground 2 fails to identify any arguable jurisdictional error.

14. The bare assertion of a denial of procedural fairness in ground 3 also fails to identify any jurisdictional error and, for the reasons given, the Tribunal complied with the statutory requirements.  No arguable case of jurisdictional error is made out by ground 3.

15. In relation to ground 4, there is no substance in the proposition that the Tribunal made the decision otherwise than according to law.  No arguable jurisdictional error is made out by ground 4. 

16. In the course of the hearing the applicant sought an adjournment in order to obtain a lawyer to prove that the documents were not fraudulent.  The applicant’s application was lodged on 9 November 2015. 

17. No earlier notice of any adjournment application had been made, or had been given to the first respondent.  When asked what steps had been taken by the applicant to obtain a lawyer, the applicant indicated that everybody had taken his money, but had not helped him.  Nothing said by the applicant identified any basis upon which granting an adjournment could be said to be of any utility.

18. Further, as the first respondent submitted, the applicant admitted to the Tribunal that the documents in relation to his visa application were fraudulent, and that the findings in relation to the summons were findings of fact and, accordingly an adjournment for the purpose identified by the applicant would be of no utility.  I accept that submission. 

19. I am satisfied that the applicant has had ample opportunity to obtain representation had he wished to do so.  I am satisfied that granting an adjournment would only unnecessarily increase the costs to the parties, and utilise limited Court time.  For these reasons an adjournment was refused.  Nothing said by the applicant from the bar table identified any basis upon which there could be said to be any arguable jurisdictional error.  I am satisfied that the application fails to disclose any arguable jurisdictional error. 

20. I am satisfied that it is an appropriate case in which to exercise the Court’s powers under r.44.12 of the Federal Circuit Court Rules. I order the application be dismissed under r.44.12 of the Federal Circuit Court Rules.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 15 February 2016