SZVER v Minister for Immigration & Border Protection
[2015] FCCA 163
•27 January 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVER v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2015] FCCA 163 |
| Catchwords: PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) r.44.12, 44.13 |
| Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SZVER |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2727 of 2014 |
| Judgment of: | Judge Emmett |
| Hearing date: | 27 January 2015 |
| Date of Last Submission: | 27 January 2015 |
| Delivered at: | Sydney |
| Delivered on: | 27 January 2015 |
REPRESENTATION
| The applicant appeared in person with the assistance of an interpreter |
| Solicitors for the Respondents: | Ms Chloe Hillary (DLA Piper) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2727 of 2014
| SZVER |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
On 30 September 2014, the applicant filed an application seeking judicial review of a decision of the Refugee Review Tribunal dated 9 September 2014 (“the RRT”).
On 18 November 2014, the applicant attended a directions hearing before a Registrar of the Court.
The applicant confirmed that he wished to continue with the application for judicial review of the RRT’s decision. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, by 19 January 2015. The applicant was also directed to file and serve written submissions in support of the grounds of his application by 19 January 2015.
At the directions hearing, the applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.
The matter was listed for today for a hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth), a copy of which was given to the applicant.
Rule 44.12 of the Rules provides as follows:
“(1) At a hearing of an application for an order to show cause, the Court may:
(a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or
(b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or
(c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.
(2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”
Relevantly, r.44.13 provides:
“(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”
The applicant was unrepresented before the Court this morning, although had the assistance of a Bengali interpreter.
I sought to confirm with the applicant that there have been no other documents filed by him, either in accordance with those directions or otherwise.
The applicant then produced an Amended Application and an affidavit affirmed by him on 18 January 2015, neither of which had been filed or served. The applicant was given leave to file those documents in Court.
The applicant confirmed that he relied on the grounds identified in the Amended Application. Each of those grounds was interpreted for the applicant and the applicant was invited to say whatever he wished in support of each of those grounds. The applicant was also invited to say whatever he wished in support of his application generally.
The grounds of the amended application are as follows:
“Ground 1
The Tribunal made a procedural error by not taking into account information relevant to the applicant’s particular circumstances
Particulars
The Applicant states the Refugee Review Tribunal (Tribunal) did not take into account the following information relevant to his matter.
1. The Tribunal took the view it is unpersuasive to believe the applicant received threats from his former wife. The applicant says he did.
2. The Tribunal took the view that the applicant did not continuously receive threats from his former wife’s family. The Tribunal found it unpersuasive to be so, and was of the view the threats stopped soon after the break down of the marriage. Applicant states the threats continue to this date.
3. The Tribunal took the view that the applicant’s family in India was not continuously subject to threats from his former wife’s family is not concerned about the stigma involved in the break-up of the marriage. The applicant says stigma is a relevant issue in his case.
4. The Tribunal took the view that the applicant’s former wife’s family is not concerned about the stigma involved in the break-up of the marriage. The applicant says stigma is a relevant issue in his case.
5. The applicant states the Tribunal did not find persuasive the reasons he gave in relation to the delay in filing for his protection claim. The applicant states his reasons are valid.
Ground 2
The failure to understand or take into account the applicant’s claims that his life was at risk and continue to be risky manifest ignorance and lack of knowledge of the realities in life in India where family honour killings and violence is common.
Particulars
The applicant states the Tribunal failed to take into account social realities and circumstances relevant to him, if he were to return to India. The applicant states family honour and reputation is a crucial factor in the social life of India and there have been many incidents of violence, killings in this regard. The applicant states it is relevant in his social group and community that he is looked down upon as having stigmatised his former wife’s family and for such revenge attacks on him is a foreseeable factor.
Ground 3
The Tribunal’s conclusion that the applicant did not have a well-founded fear of persecution in India was illogical, manifested a misunderstanding or misconstruction of the Convention test or arose out of a failure to take relevant information into account.
Particulars
The applicant states that he has a well-founded fear of persecution in India. He belongs to a social and a community group, where family honour and reputation is very relevant. In that social group, the applicant states he has a real fear, when his in-laws are threatening to harm him for the stigma they believe was brought upon by the applicant.
Ground 4
The applicant was not afforded natural justice.
Particulars
The applicant believes that he was not afforded a fair hearing. The Honourable Member’s judgment was clouded by his own pre-conceived beliefs, notions as to what constituted ‘fear’ and whether circumstances claimed by the applicant were real and continuing. In deciding so, the Honourable Member did not extend to the applicant adequate opportunity to present his case, by not allowing for a hearing without actual and apprehended bias.”
The applicant’s affidavit, affirmed on 18 January 2015, attaches a document entitled “Written Submission”. However, it is no more than a restatement by the applicant of various claims that he made and findings made by the RRT.
The applicant made no further submission in respect of any of the grounds, save in relation to ground 3, where the applicant said that he had a real fear of returning to India.
The background of this matter and the RRT’s decision record are accurately summarised in the first respondent’s submissions as follows:
“Background
2. The applicant is a male citizen of India born on 14 August 1981.[1] He arrived in Australia on 25 December 2008.[2]
3. The applicant applied for a Protection (Class XA) visa on 6 May 2013.[3] The applicant's claims for protection were set out in a statement.[4]
3.1 The applicant claimed to have been in an arranged marriage and that he and his wife subsequently separated and then divorced. He claimed that this angered her family and that they had threatened to kill him, and that they had been harassing the applicant and his family. He claimed to fear an honour killing.
[1] CB 48.
[2] CB 56.
[3] CB 1-26.
[4] CB 67-68.
4. The application was refused on 5 December 2013.[5]
5. The applicant applied to the RRT for review of the delegate's decision on 19 December 2013.[6] The applicant gave oral evidence before the RRT on 1 September 2014.[7] The RRT handed down its decision on 10 September 2014.[8]
[5] CB 76-88.
[6] CB 89-95.
[7] CB 128-130.
[8] CB 136-138.
The decision of the Tribunal
6. The RRT found at [24] that the applicant was not truthful in his claims, on the basis of concerns set out from [23]. Those concerns were:
6.1 The applicant had given inconsistent evidence as to the nature of the breakdown of his marriage.
6.2 The applicant had given inconsistent evidence as to the threats he claimed to have received and the RRT considered parts of his account in this regard to be not credible.
6.3 The applicant's evidence about threats received by his parents was not persuasive, and was vague and confusing.
6.4 The applicant raised a new claim at the hearing that his father had been assaulted by his former wife's parents.
6.5 The applicant's delay in applying for protection was substantial, and undermined his claims. The applicant's evidence to the RRT was that he and his wife separated in approximately mid-2010, and that he started receiving threats shortly after this. The applicant applied for a subclass 485 Skilled visa which was refused on 13 April 2012, and did not lodge his protection visa application for more than a year after this. The RRT did not accept that the applicant was unaware of protection visas as he claimed.
7. The RRT accepted that the applicant's arranged marriage with his wife had broken down after their arrival in Australia and that they were now divorced.[9] The RRT did not accept that the applicant or his parents had received threats from his former wife or her family.[10] The RRT did not accept that his father had been assaulted as claimed.[11] The RRT did not accept that there was any animosity towards the applicant by his former wife or her family and concluded that there was not a real chance that the applicant would be harmed as a result of his former marriage.[12]”
[9] See [10] at CB 141.
[10] See [17], [20] and [24] at CB 143-144.
[11] See [22] at CB 144.
[12] See [24] at CB 145.
At the heart of the RRT’s decision was its comprehensive adverse credibility findings and rejection of the applicant’s claims.
The RRT set out in some detail the concerns that it had with the applicant’s claims and the reasons for its adverse credibility findings. There is nothing on the face of the RRT’s decision record to suggest that those findings were not open to the RRT on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. The RRT’s credibility findings are a matter par excellence for the RRT (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
Ground 1 of the amended application asserts that the RRT made a procedural error by not taking into account information relevant to the applicant’s particular circumstances. The particulars in support of ground 1 identify the claim made by the applicant and the finding made by the RRT. Namely, ground 1 does no more than cavil with the findings made by the RRT. Such a complaint invites merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
Ground 2 asserts that the RRT failed to understand or take into account the applicant’s claims that his life was at risk and continued to be at risk through ignorance and lack of knowledge on the part of the RRT. Again, the particulars in support of ground 2 make clear that at the heart of the applicant’s complaint in ground 2 is a disagreement with the RRT’s rejection of his claim.
A fair reading of the RRT’s decision record makes clear that it considered the applicant’s claims in some detail. The RRT also noted various discussions that it had with the applicant at the hearing about his claims and noted that it put to the applicant particular concerns that it had about the applicant’s claim and noted the applicant’s responses. There is nothing on the face of the RRT’s decision record to suggest that it did not understand or take into account the applicant’s claims that his life was at risk in India.
Ground 3 asserts that the RRT’s conclusion that the applicant did not have a well founded fear of persecution in India was illogical or irrational and manifested a misunderstanding or misconstruction of the Convention test or arose out of failure to take relevant information into account. The particulars in support of that ground again restate the applicant’s claim of his fear of persecution in India and that he belonged to a social and community group where family honour and reputation is relevant and that is in-laws were threatening to harm him for the stigma they believed was brought upon the applicant. Again, a fair reading of the RRT’s decision record makes clear that the RRT considered those claims by the applicant, but did not accept their veracity.
In the circumstances, the applicant’s complaint in ground 3 is no more than an emphatic way of expressing a disagreement with the findings and conclusions of the RRT. Such a complaint does not demonstrate illogicality or irrationality on the part of the RRT and I refer to Minister for Immigration and Citizenship v Lee [2013] HCA 18 at [30] per French CJ.
Ground 4 asserts that the applicant was not afforded natural justice. The particulars in support of ground 4 make the further assertion that the applicant was not afforded a fair hearing and asserts that the RRT member had pre-conceived beliefs and notions, did not extend the applicant adequate opportunity to present his case and failing to do so, engaged in actual or apprehended bias.
The first respondent tendered the Court book which was marked exhibit 1R. Exhibit 1R makes clear that the applicant was invited to appear before the RRT to give evidence and present arguments relating to the issues arising in this case, in accordance with the legislative regime. The applicant attended that hearing and gave evidence in support of his claims. I accept the first respondent’s submission that there was no information before the RRT which enlivened its obligations under section 424A of the Migration Act 1958 (Cth).
To the extent that the applicant asserts bias on the part of the RRT, such an allegation is serious and requires some evidence. As stated earlier, the applicant was given an opportunity to file and serve any further evidence in support of his application. Such evidence would have included a transcript of the RRT hearing. It is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision and the mere fact that the RRT made adverse findings in respect of the applicant does not give rise to an inference of bias by itself (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).
There is nothing on the face of the RRT’s decision record to suggest that it approached its task, other than with a mind open to persuasion and there is nothing on the face of the RRT’s decision record to support the applicant’s bare, unparticularised allegations of actual or apprehended bias.
There appears to be nothing on the face of the decision record to suggest that the RRT’s findings were not open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the RRT (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
It is well established that the RRT is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the RRT have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).
While I make no final decision as to whether or not the RRT’s decision is affected by jurisdictional error the applicant has not identified any error on the part of the RRT that is capable of establishing jurisdictional error and none is apparent on the face of the decision record. The RRT referred to the relevant law in affirming the decision under review.
In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, in the exercise of the Court’s discretion under r.44.12(1) of the Rules and on the basis that the application does not raise an arguable case, the proceeding before this Court, commenced by way of application on 30 September 2014, should be dismissed pursuant to r.44.12(1)(a) of the Rules with costs.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 29 January 2015
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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