SZVEE v Minister for Immigration and Border Protection
[2016] FCA 300
•29 February 2016
FEDERAL COURT OF AUSTRALIA
SZVEE v Minister for Immigration and Border Protection
[2016] FCA 300
Appeal from: SZVEE v Minister for Immigration & Anor [2015] FCCA 3000 File number(s): NSD 1417 of 2015 Judge(s): WIGNEY J Date of judgment: 29 February 2016 Legislation: Federal Circuit Court Rules 2001 (Cth), r 44.12(1)(a), 44.12(2)
Federal Court of Australia Act 1976 (Cth), s 24(1A)
Federal Court of Australia Rules 2011 (Cth), r 35.33
Migration Act 1958 (Cth), ss 36, 65
Migration Regulations 1994 (Cth), sch 2
Cases cited: Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15 Date of hearing: 29 February 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 31 Counsel for the Appellant: The applicant did not appear Solicitor for the First Respondent: Ms A Wong of DLA Piper Australia Counsel for the Second Respondent: The second respondent filed a submitting appearance save as to costs ORDERS
NSD 1417 of 2015 BETWEEN: SZVEE
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
WIGNEY J
DATE OF ORDER:
29 FEBRUARY 2016
THE COURT ORDERS THAT:
1.Leave to appeal is refused.
2.The applicant pay the Minister's costs as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Delivered ex tempore, revised from transcript)WIGNEY J:
The applicant is a citizen of India. He arrived in Australia on a student visa in June 2009. In September 2013 he applied for a Protection (Class XA) visa (protection visa) under s 36 of the Migration Act 1958 (the Act) and Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). In February 2014 a delegate of the Minister for Immigration and Border Protection (Minister) refused to grant the applicant a protection visa. The applicant then applied to the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (Tribunal) for a review of the decision refusing his protection visa application. That application was unsuccessful. The Tribunal affirmed the delegate's decision.
Undeterred, the applicant then sought judicial review of the Tribunal's decision in the Federal Circuit Court (Circuit Court). The Minister, however, applied for the dismissal of the applicant's application pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) on the basis that it did not raise an arguable case for the relief sought. The Minister's application was successful. On 3 November 2015, the primary judge dismissed the applicant's application.
On 16 November 2015 the applicant applied for leave to appeal the judgment of the primary judge dismissing his application. Leave to appeal was necessary because dismissal of an application under r 44.12(1)(a) of the FCC Rules is interlocutory in nature (see r 44.12(2) of the FCC Rules) and s 24(1A) of the Federal Court of Australia Act 1976 (Cth) provides that an appeal shall not be brought from a judgment of the Circuit Court that is interlocutory in nature without the leave of this Court.
The applicant did not appear when the leave to appeal application was called on for hearing on 29 February 2016. Attempts to contact him on a telephone number he had provided to the Court were unsuccessful. The Minister applied for the leave application to be dismissed pursuant to r 35.33 of the Federal Court of Australia Rules 2011 (Cth). In all the circumstances, however, the preferable course was to proceed to hear and consider the merits of the leave application, albeit in the absence of the applicant.
BACKGROUND
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Regulations. Broadly speaking, an applicant for a protection visa must satisfy the Minister that he or she is either a non-citizen in Australia to whom Australia has protection visa obligations under the 1951 Convention Relating to the Status of Refugees (the Refugee Convention criterion); or that Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm (the complementary protection criterion).
The applicant's case that he satisfied either the Refugee Convention criterion or the complementary protection criterion was based on a claim that he had for many years followed, or been a member of, a religious or spiritual organisation known as Dera Sacha Sauda (DSS). In short terms, he claimed that he feared that if he returned to India he would suffer harm from Sikh organisations, including an organisation known as Babbar Khalsa, because of his association with the DSS. He claimed that the State Government of Punjab would offer him no protection because it backs the Sikh organisations.
The applicant asserted that in May or June 2007 he attended a DSS meeting and was injured during clashes with Sikh protesters. He also referred to an incident that occurred in late 2008 when about five or six people from Babbar Khalsa threatened that they would kill him if he did not stop supporting DSS. He claimed that he left India because of those threats.
This does not, of course, purport to be a full recitation of the applicant's claims. It is, however, sufficient to deal with the application for leave to appeal. The applicant's factual claims are set out at length in both the Tribunal's Statement of Decision and Reasons (Reasons) at [11]-[15] and the judgment of the primary judge (Judgment) at [3]-[8]. There is no suggestion in any of the material filed by the applicant that the summary of his claims in the Reasons and Judgment is incorrect or inadequate.
The Tribunal's decision
The Tribunal affirmed the initial decision to refuse the applicant’s protection visa application essentially because it did not believe the applicant's claims and evidence. It found that the applicant was not a credible, truthful or reliable witness and had fabricated the factual claims that formed the basis of his protection visa application. The Tribunal did not accept that the applicant or his family were or had ever been followers or members of DSS, that DSS was the applicant's religious or belief system, or that anyone believed or had reason to believe that the applicant was a follower or member of DSS. It rejected the applicant's evidence of the events that supposedly occurred in May or June 2007 and late 2008 and did not accept that the applicant had suffered harm, or threats of harm, at the hands of Sikhs, Babbar Khalsa or any other person or organisation on the basis of his actual or assumed involvement with DSS. The Tribunal did not accept that the applicant had any genuine fear of harm from anti-DSS organisations, Sikhs, or the government, and did not accept that there was any risk of him suffering harm if he returned to India.
The Tribunal gave detailed reasons for rejecting the applicant's claims and evidence (Reasons at [16]-[32]). It is unnecessary to rehearse those reasons in any detail. Suffice it to say that the Tribunal gave five reasons for finding that the applicant was not a truthful or credible witness and had fabricated his claims. First, the Tribunal referred to parts of the applicant's evidence that were not credible or plausible. Second, in his evidence before the Tribunal, the applicant was unable to provide any significant information about the practices and beliefs of the DSS or his involvement with the organisation over the years. Third, the Tribunal identified a number of material inconsistencies between the applicant’s written claims in support of his visa application and the evidence he gave before the Tribunal. Fourth, the Tribunal pointed to the significant delay between the applicant’s travel to Australia in 2009 and his eventual protection visa application in September 2013. Finally, the Tribunal referred to information that suggested that the applicant had colluded with other protection visa applicants in the preparation of his application. The applicant was given the opportunity to respond to that information. He denied collusion, but the Tribunal found that the fact that the applicant’s claims were in virtually identical terms to the claims of another applicant suggested some collusion.
It followed inescapably from the Tribunal's rejection of virtually the entirety of the applicant's evidence that he failed to meet either the Refugee Convention criterion or the complementary protection criterion. The Tribunal accordingly affirmed the decision under review.
Proceedings in and judgment of the Circuit Court
The applicant's judicial review application in the Circuit Court included the following three review grounds:
1. The Tribunal failed to consider an integer of the applicant’s claims, in failing to consider whether or not the applicant in India was at risk of harm from Babbar Khalsa (Sikh terrorist organization), and not able to access effective protection.
2. The Refugee Review Tribunal denied the applicant procedural fairness by reaching adverse conclusion that applicant claims were implausible, being conclusion that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.
3. The Tribunal failed to investigate applicant claims, specially the grounds of persecution in India.
The relief sought by the applicant included:
An order that the decision of the tribunal or Minister be quashed.
A writ of mandamus directed to the tribunal or Minister, requiring them to determine the applicant’s application according to law.
An order that the Respondent pay the applicants costs and such orders as the Court sees fit.
An order of probation to restrain the Respondent from giving any further effects to the purported decision.
The Minister applied for the dismissal of the applicant's application under r 44.12(1)(a) of the FCC Rules on the basis that it did not raise an arguable case for the relief sought. The primary judge agreed and dismissed the applicant's application.
The primary judge dealt with each of the three grounds in the applicant's application, together with such submissions as the applicant had made in support of them.
In relation to the first ground of the application, the primary judge found that the Reasons showed that the Tribunal considered all of the applicant's claims, but concluded that it was not satisfied that the applicant was a credible witness. The primary judge found that it was open to the Tribunal to so conclude for the reasons that it gave. There was therefore no foundation for the contention that the Tribunal had failed to consider whether the applicant was at risk of harm from Babbar Khalsa and unable to access protection. The primary judge accordingly held that ground 1 was not arguable.
In relation to the applicant's second ground, the primary judge concluded that it was apparent from the Reasons that the Tribunal put to the applicant the matters that led it to find that the applicant was not a credible witness. There was therefore no basis for the contention that the applicant was not given an opportunity to be heard in relation to any of the matters that led the Tribunal to disbelieve him, and accordingly no basis to conclude that the applicant was denied procedural fairness.
The primary judge also dealt with two submissions apparently advanced by the applicant in support of the second ground of his application. The first submission was that the Tribunal had decided the matter without further investigation. The primary judge held that the Tribunal was under no general duty to investigate matters beyond a duty to inquire about a potentially critical fact, the existence of which may be easily ascertained: Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15 at 21[25]-22[26]. No such duty arose in the applicant’s case. The second submission was that the Tribunal did not properly consider the situation in the Punjab. The primary judge found that, given the Tribunal's adverse credibility finding, it was unnecessary for it to consider the situation in the Punjab.
Having found that ground 2 and the submissions made in support of it had no basis or merit, the primary judge concluded that ground 2 was not arguable.
The same was the case in relation to ground 3. The applicant made no separate submissions in support of that ground. It covered essentially the same territory as grounds 1 and 2. The primary judge accordingly found that ground three was not arguable for the same reasons as given in relation to the other grounds, in particular ground 2.
The primary judge also considered a statement made by the applicant in an affidavit filed in support of his application. Beyond restating the general nature of his claim, the statement simply alleged that the Tribunal's decision was unjust and made without taking into account “the full gravity" of the applicant's circumstances and “the consequences of the claim”. The primary judge found that this statement did not raise an arguable case because the Tribunal had in fact taken the applicant's claims into account. It just did not accept them.
Grounds and submissions in support of the leave application
The applicant's leave application includes the following two grounds:
1. The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claims and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation.
2. The learned Judge dismissed the application without considering the legal and factual errors contained in the decision of AAT.
In the affidavit filed in support of his application, the applicant points out that he was not represented by a barrister or solicitor in the Circuit Court and asserts that the Circuit Court “failed to consider that the Tribunal decision was an improper exercise of the power conferred by an enactment in pursuance of which it was purported to be made". The affidavit also annexes a draft notice of appeal which contains the following two grounds:
1. The Federal Circuit Court erred in that The Tribunal denied the Applicant procedural fairness by reaching adverse conclusion that certain aspect 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 Federal Circuit erred in accepting that the Tribunal view that the applicant will not face persecution if returns to the country [sic].
The applicant did not file any written submissions in support of his leave application despite having been directed by the Court to do so. As already indicated, the applicant did not appear at the hearing. Accordingly, the Court does not have the benefit of any further oral submissions from the applicant in support of the leave application.
Consideration and determination - should leave to appeal be granted?
The primary consideration in leave to appeal applications in the circumstances of cases such as this is whether the applicant has demonstrated that there is sufficient doubt as to the correctness of the judgment at first instance to warrant appellate review. That is because it is almost self-evident that applicants in the position of the applicant will suffer substantial injustice if, assuming the decision at first instance is wrong, leave to appeal is refused. If leave to appeal is refused, the applicant will almost certainly face immigration detention and eventual deportation.
None of the grounds or contentions in the applicant's leave application, draft notice of appeal and affidavit raise any doubt about the correctness of the judgment of the primary judge.
The contentions in the leave application that the primary judge “acted in a manifestly unreasonable way”, ignored “persecution and harm in terms of Sec.91R of the Act” and “dismissed the application without considering the legal and factual errors” in the Tribunal's decision have no foundation whatsoever. The primary judge considered each of the grounds and submissions advanced by the applicant in support of his judicial review application. The primary judge was correct to conclude that none of the grounds or submissions raised an arguable case. The applicant has not pointed to any error in the primary judge's reasons or conclusion.
The two grounds in the applicant's draft notice of appeal are equally unmeritorious. The first ground is that the primary judge erred in failing to find that the Tribunal denied him procedural fairness as contended in ground 2 of the judicial review application. The applicant has not, however, advanced any argument of substance in support of the contention that the primary judge erred in finding that this ground was unarguable. The applicant’s case of denial of procedural fairness rose no higher than bare assertion. The primary judge was correct to reject the contention that the Tribunal denied the applicant procedural fairness for the reasons his Honour gave.
As for the contents of the applicant's affidavit, the fact that the applicant was not represented in the Circuit Court by a barrister or solicitor is perhaps unfortunate, but does not provide him with an arguable ground of appeal. Beyond that, the affidavit merely asserts that the Circuit Court “failed to consider that the Tribunal decision was an improper exercise” of its jurisdiction. The primary judge did consider that issue and found that the applicant did not have an arguable case that the Tribunal improperly exercised its jurisdiction. The primary judge was correct in so concluding.
Putting aside the written contentions advanced by the applicant in support of his leave application, and giving due regard to the fact that the applicant did not appear at the hearing, the Court has given close consideration to both the Tribunal's reasons and the primary judge's judgment. That close consideration does not reveal any doubt about the correctness of either decision. There is no warrant for appellate consideration of the primary judge's judgment. Leave to appeal must accordingly be refused.
DISPOSITION
The orders of the Court are as follows:
1.Leave to appeal is refused.
2.The applicant pay the Minister's costs of this application as agreed or taxed.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney. Associate:
Dated: 29 February 2016
0
1
5