SZVEC v Minister for Immigration

[2015] FCCA 2690

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVEC v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2690

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:

Migration Act 1958 (Cth)

Applicant: SZVEC

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2678 of 2014

Judgment of: Judge Driver

Hearing date: 1 October 2015

Delivered at: Sydney

Delivered on: 1 October 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms A. Wong of DLA Piper

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 2678 of 2014

SZVEC

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 25 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.  Background facts relating to his claims for protection and the Tribunal decision on them are conveniently summarised in the Minister’s written submissions filed on 21 September 2015.   

3. The applicant is a male citizen of India who arrived in Australia on 21 May 2013.[1]

   [1] Court Book (CB) 58

4. The applicant applied for a protection (Class XA) visa on 4 July 2013.  His claims were set out in a statement accompanying the application.[2]  The applicant claimed protection on the grounds that the police in India will harm him and his family because they suspect that he, his brother and father were involved in explosions which took place in Hyderabad on 21 February 2013.  The applicant claimed that he and his brother were detained for 10 days by police and tortured.  Upon their release the applicant claimed that he and his brother were required to report to the police twice every day.

   [2] CB 49-51

5. The application was refused by the Minister’s delegate on 8 January 2014.[3]

   [3] CB 53-70

6. The applicant applied to the Tribunal for review of the delegate's decision on 23 January 2014[4] and attached a copy of the delegate's decision record.[5]  The applicant also resubmitted the same statement which was before the delegate.[6]

   [4] CB 71-76

   [5] CB 77-94

   [6] CB 95-97

7. The applicant gave oral evidence before the Tribunal on 22 August 2014.[7]  The Tribunal made its decision on 25 August 2014.[8]

   [7] CB 105

   [8] CB 116-123

The decision of the Tribunal

1. The Tribunal made an adverse credibility finding against the applicant[9] and held that the account of events, on which his protection claims were made, was false.[10]  The Tribunal rejected his claim that in 2013 he, his brother and father were taken away by police and that he and his brother were made to report to police after that.  The Tribunal disbelieved the applicant's claims that the police came to his home, harassed the family and spoke badly about them to others (including after they left India).  The Tribunal disbelieved the applicant's claims that they left India in fear of the Indian police.[11]

   [9] see [7]

   [10] at [22]

   [11] see [22]

2. In making this finding, the Tribunal held that his account of events[12] contained inconsistencies about what the police said to the applicant when his brother was detained,[13] about dates of important events,[14] discrepancies about the reporting period[15] and his education.[16]

   [12] at [8]

   [13] at [9]-[12]

   [14] at [13]-[14]

   [15] [15]-[17]

   [16] [18]-[21]

3. The Tribunal noted that it had access to the applicant's visitor file, but considered that it did not contain “information” within the meaning of s.424A of the Migration Act.[17]

   [17] at [23]

4. The Tribunal concluded that the applicant did not meet the criteria in s.36(2)(a) or s.36(2)(aa) of the Migration Act.

The present proceedings

1. These proceedings began with a show cause application filed on 26 September 2014.  The applicant has taken up the opportunity I afforded him to file an amended application, which was done on 10 February 2015.  There are two particularised grounds in that application:

   1. The applicant claims that the Refugee Review Tribunal (the Tribunal) made a mistake that it applied excessive jurisdiction.  The Tribunal was not specific about its requirement to make a decision under review.  The applicant also did not get an opportunity to have his [statement] of claim in his hand when the Tribunal was taking dates from the statement of claim.

   Particulars:

   (i) ‘For all these inconsistencies the applicant claims he was nervous and did not explain things.  Those claims do not resolve the Tribunal’s concerns.  The Tribunal considers the applicant has been given ample opportunity in his [statement], his interview with the delegate and at the Tribunal hearing to relate a consistent account of the material events on which his protection claims are based.  He has failed to do so’.

   (ii) ‘The Tribunal put to the applicant that his evidence was inconsistent with his evidence to the Tribunal that he was arrested on 28 or 28 February 2013.  In response, the applicant said that he did not recall dates’.

   (iii)‘The Tribunal considers the applicant can be reasonably expected to consistently recall when those events occurred and he has not done so’.

   2. The Tribunal made a procedural mistake that it failed to assess the applicant’s claim for protection which is the main job of the Tribunal.  The Tribunal should focus on the main issue whether the review applicant has threat for his life and liberty and he needs protection from Australia.  But the Tribunal was looking into those issues which the Tribunal was looking into to reject the applicant’s genuine claim for protection.  The Tribunal knew that there will be discrepancies.

   Particulars:

   (i) The Tribunal rejects that evidence because the applicant appeared to be merely inventing it to conceal the discrepancy that was put to him about this issue’.

   (ii) ‘At an early stage of the hearing the Tribunal questioned the applicant about his education. Further in the hearing the Tribunal returned to this subject and put to him that’. Provide reasons under the Migration Act when it rejected the review application. The decision was given by the Tribunal was not given according to the Act. Paragraphs 9 to 41 of the Tribunal decision are not a decision under the Act. The Tribunal did not comply with the Migration Act. The Tribunal should set out reasons for the decision, set out findings on questions of facts.

   (iii) ‘The Tribunal rejects those responses and again finds that the applicant is inventing evidence to deal with obvious inconsistency ……..protection visa application form, which was different, reflected poorly on his credibility’.

   (iv) ‘At the beginning of the hearing, the Tribunal made clear to the applicant that the purpose of its questions to him was not only to ascertain the risk to him in India, but, to assess his credibility to enable to decide whether or not he was telling the truth’.

   (v) ‘There is no credible evidence that Indian police or anyone else in India harmed the applicant or any member of his family.  There is no credible evidence that the Indian police or anyone else in India wishes to harm the applicant or any member of his family’.

   (emphasis deleted)

2. I have before me as evidence the court book filed on 20 November 2014. 

3. Both the applicant and the Minister have filed written submissions and made oral submissions today. 

4. In his oral submissions, the applicant said that he would like a further opportunity before the Tribunal because he was concerned that he did not give a good account of himself at the Tribunal hearing.  He said he was nervous and that he was not able to express himself well.  The Tribunal decision records that although the applicant was provided with an Urdu speaking interpreter, he addressed the Tribunal mostly in English.  The applicant confirmed to me that he speaks, reads and writes English and Hindi in addition to Urdu, but that Urdu is his first language.  He said that while he is generally proficient in English, his knowledge is limited and that he was somewhat reluctant to put his speech through the interpreter at the Tribunal hearing because she was female.  While that may have been so, the applicant did not raise any concern about the interpreter with either the Tribunal or his migration agent.  He confirmed that to me in his oral submissions.  There is nothing in the available material to suggest to me that the applicant suffered any particular disadvantage because of the limited extent to which he chose to use the Urdu interpreter at the Tribunal hearing. 

5. The applicant is also concerned at the Tribunal’s adverse credibility conclusions.  He would like the opportunity to be able to present additional material to be able to clarify his claims.  That desire is, however, not reflective of any asserted jurisdictional error.  I raised with the applicant whether he was asserting bias or pre-judgement by the Tribunal.  He said that he was not doing so, although he felt that the Tribunal concentrated excessively on issues of detail about dates. 

6. The Minister’s submissions deal with the matters raised in the applicant’s amended application and his written submissions.  I agree with the Minister’s submissions. 

Ground 1

1. The applicant alleges that the Tribunal applied “excessive jurisdiction” and that the applicant did not have an opportunity to have his statement of claim “in his hand” when the Tribunal was asking the applicant about his statement of claim.

2. At [12] of its reasons the Tribunal found that the applicant provided inconsistent evidence in relation to what the police said to the applicant and his brother when detained.[18]  At [13]-[14] the Tribunal put to the applicant that he had provided inconsistent evidence about dates of important events.[19] 

   [18] See also [9]-[11]

   [19] Minister for Immigration v  SZGUR [2011] HCA 1 at [9

3. The Tribunal’s findings at [12] and [14] were open for the Tribunal to make, based on the applicant's evidence, and for the reasons it gave.

4. The Tribunal is under no obligation to allow the applicant to have his statement before him when giving evidence. 

Ground 2

1. The second ground of review alleges that the Tribunal failed to assess the applicant's claim for protection.  The applicant provides quotes from the Tribunal’s decision record.

2. Without particulars, it is unclear which claim that the applicant is referring to, and this ground cannot be sustained.  At the heart of the applicant's complaint is a disagreement with the Tribunal’s rejection of his claims and seeks impermissible merits review.

Applicant's submissions

1. At [1] of the applicant's submissions the applicant alleges the following:

   a)that the Tribunal relied on what the applicant said before the delegate;

   b)that the Tribunal's findings should be independent of the delegate's decision; and

   c)that there was no evidence before the Tribunal that the applicant was not a credible witness.

2. The Tribunal set out the applicant's claims as was put to the delegate at [8] and [24].  It otherwise relied upon the applicant's evidence given to the delegate to conclude that the applicant changed his evidence before the Tribunal.[20]  The Tribunal was entitled to rely upon the evidence that the applicant provided to the delegate and, furthermore, that there is nothing in its decision to show that its findings were not independent of the delegate's decision.  Contrary to the applicant's allegation that there was no evidence before the Tribunal that the applicant was not a credible witness, the Tribunal found that the applicant had a poor demeanour as a witness[21] and provided inconsistent evidence.[22]

   [20] see [15]

   [21] at [7]

   [22] see [8]-[21]

3. With respect to [2] of the applicant's submissions, the Minister submits that the Tribunal understood that the main issue before it was whether the applicant met the criteria set out s.36(2)(a) or s.36(2)(aa) of the Migration Act.[23]  In so far as the applicant alleges that the Tribunal “knew” that there would be discrepancies in the applicant's evidence, there is no basis for the applicant's assertion.  Further, the role of the Tribunal is to be an inquisitorial body.  The inquisitorial nature of the Tribunal’s proceedings must be taken into account, such that the Tribunal is necessarily required to test an applicant’s evidence, often vigorously.[24]

   [23] see [3]-[6]

   [24] Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 at [29-30]; SZRUI v Minister for Immigration [2013] FCAFC 80 at [4] per Allsop CJ, [24] per Flick J, [87] per Robertson J

4. Paragraph [3] of the applicant's submissions appear to assert that because the Tribunal used “template” headings, it did not have an “objective oriented view”: 

5. The first difficulty with the argument about the “template” nature of the reasons is that there is no evidence that the Tribunal used any template. It may be accepted that the format of the reasons is one that is commonly used by the Tribunal: the reasons are divided into sections (application for review, relevant law, findings, conclusions). These headings may be understood as providing a guide to the Tribunal in each case as to how best to comply with the obligations under s.430(1) of the Migration Act. However, there is nothing to suggest that any of the findings themselves were “template” or, in other words, precisely the same as findings in other cases. It would be difficult to draw that conclusion in light of the constant reference to the particular facts and evidence that were before the Tribunal and the particular sub-headings beneath “findings”.

6. The second difficulty with this argument is that, even if template reasoning were applied, that would, of itself, be insufficient to support a conclusion that there was a reasonable apprehension of bias[25].

   [25] Minister for Immigration v SZQHH (2012) 200 FCR 223 at 237-239 [43]-[50]; SZRBA v Minister for Immigration [2014] FCAFC 81

7. It seems to me that the applicant’s real complaint is about the outcome before the Tribunal rather than any issue of process before the Tribunal. While the applicant is concerned about that outcome and would like a further opportunity, no arguable case of jurisdictional error has been advanced.

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

9. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale as applicable at the time the application was first filed. The applicant sought a reduction of costs on the basis of his financial capacity. As I explained to him, in my view, scale costs have been reasonably and properly incurred.

10. 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 thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  6 October 2015