SZVGN v Minister for Immigration & Border Protection

[2015] FCCA 269

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVGN v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 269

Catchwords:
MIGRATION – Refugee Review Tribunal.

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) rr.44.12, 44.13

Cases Cited:

NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1
see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant: SZVGN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2829 of 2014

Judgment of: Judge Emmett

Hearing date: 6 February 2015

Date of Last Submission: 6 February 2015

Delivered at: Sydney

Delivered on: 6 February 2015

REPRESENTATION

The applicant appeared in person with the assistance of an interpreter

Solicitors for the Respondents: Ms Michelle Stone (DLA Piper)

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2829 of 2014

SZVGN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 13 October 2014, the applicant filed an application seeking judicial review of a decision of the Refugee Review Tribunal dated 9 September 2014 and handed down on 10 September 2014 (“the RRT”).

2. On 2 December 2014, the applicant attended a directions hearing before Registrar Segal.

3. 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 24 December 2014. The applicant was also directed to file and serve written submissions in support of the grounds of his application by 24 December 2014.

4. 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.

5. 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.

6. 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.”

7. 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.”

8. The applicant was not represented before the Court this morning, however, had the assistance of an interpreter.

9. The applicant confirmed that, other than the submission filed by him in support of his initiating application on 13 October 2014 and his subsequent affidavit on 22 December 2014, he had filed no other documents and had no other documents to provide to the court this morning.

10. The applicant confirmed that he relied on the grounds of his initiating application filed on 13 October 2014. Those grounds are as follows:

    “1. Law Error

    2. Overlooked my real claim.”

11. The affidavits sought to be relied on by the applicant this morning were not objected to by the solicitor for the first respondent, Ms Stone, on the basis that they were accepted as submissions rather than as evidence of the facts asserted.

12. The affidavit filed on 13 October 2014, restated the applicant’s claims and complained that the RRT’s questioning was only around timelines and included dates, weeks, months and numbers that that needed to be answered exactly and that it was a scary experience for someone. The applicant submitted that the RRT had made their decision to affirm the decision under review based on the inconsistencies in his evidence in relation to timeline evidence. However, a fair reading of the RRT’s decision record does not support the applicant’s assertion that the RRT relied only on inconsistencies in the timeline given by the applicant.

13. The RRT had further concerns about the delay of the applicant in seeking protection and, indeed, found that the applicant only made his application for protection after he had exhausted all other options to remain in Australia, having originally come to Australia on a student visa. The RRT found that the applicant’s decision to leave Bangladesh was made because he decided to study overseas and not because he felt the need to escape persecution or because he feared such persecution.

14. The RRT’s decision record summarised the applicant’s claims, which essentially were that he feared harm following his participation in a protest in early 2006 in Bangladesh, following which he said he was threatened and assaulted. The RRT also was concerned that the applicant had returned to Bangladesh in 2008 and found that such conduct was not consistent with a person who claimed to fear harm in Bangladesh for the reasons asserted.

15. The RRT found that the applicant's decision to spend close to six weeks in Bangladesh in 2008 supports the RRT’s view that the applicant had never experienced any harm or harassment in Bangladesh and that he had fabricated his claims. Ultimately, the RRT found that the applicant had fabricated the entirety of his claims for protection in order to extend his stay in Australia. The RRT comprehensively rejected all claims made by the applicant, including his participation in the protest in 2006. The RRT did not accept that anybody wished to harm the applicant, either for his political reason or for any other reason.

16. In the circumstances, the applicant’s assertion that the RRT relied only on inconsistencies in timeline evidence given by the applicant does not establish jurisdictional error on the part of the RRT.

17. In the applicant's affidavit filed on 22 December 2014, the applicant reiterated the complaint about the RRT’s findings in relation to inconsistencies on the timeline and made a further complaint that the RRT’s refused to postpone his hearing on 9 September 2014.

18. In relation to the RRT’s complaint about the RRT’s refusal to postpone the hearing, the RRT noted that, on 5 September 2014, the applicant had provided to the RRT a medical certificate and had requested the hearing be postponed.

19. The RRT noted that it had considered the applicant’s request but decided not to postpone the hearing. The RRT noted that, according to the applicant’s own evidence, he had been traveling outside Sydney for a week and it was not until the applicant returned to Sydney and received the hearing invitation that the applicant determined he was too ill to attend the hearing. The RRT found that if the applicant’s back pain did not prevent him from traveling, equally it would allow him to participate in a hearing.

20. The RRT also had regard to the content of the medical report provided by the applicant in support of his request and noted that the report stated no more than that the applicant was unfit to continue his usual occupation, school and university. The RRT noted that the medical report stated nothing about the applicant’s capacity to participate in a hearing and give oral evidence. Ultimately, the applicant did attend the RRT hearing.

21. There is nothing in the RRT’s decision record to suggest that the applicant made any complaint about his ability to participate meaningfully at the hearing or that his ability to provide evidence was in any way impeded. The RRT noted that when it put to the applicant various discrepancies in his evidence, the applicant told the RRT that the events happened a long time ago and that he was nervous and could not remember. The RRT did not accept that explanation and found that inconsistencies and deficiencies in the applicant’s evidence did not result from the applicant’s poor memory but rather an indication of his lack of candour.

22. This morning, the applicant confirmed that he relied on the complaints made in his initiating application and his submissions attached to his affidavits.

23. The applicant’s complaints about the questioning, the nature of the questioning or the type of questions from the RRT member would require at least the evidence in support of a transcript. At the directions hearing on 2 December 2014, the applicant was directed to file and serve all evidence in support of his application. In circumstances where the applicant was given an opportunity to file such evidence and has failed to do so, I accept as accurate the RRT’s summary of the various exchanges that took place between the applicant and the RRT member at the hearing. The Court is entitled to accept the RRT’s decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (see NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).

24. There is nothing on the face of the RRT’s decision record to suggest that the RRT’s exercise of its discretion in refusing to postpone its hearing was not open to the it on the evidence and material before it and for the reasons it gave. Further, there is nothing to suggest that the RRT’s adverse findings, including its adverse credibility findings, were not open to the RRT on the evidence and material before it and for the reasons it gave. Credibility findings are a matter par excellence for the RRT (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

25. Whilst I make no final finding as to whether or not the RRT decision was affected by jurisdictional error, none is apparent on the face of the decision record and none has been identified by the applicant. In the circumstances, I am not satisfied that the applicant’s application and complaints contained in his affidavits have raised an arguable case for the relief claimed.

26. In such circumstances, I am not satisfied that the applicant has any prospects of success such that it would be in the interests of justice to allow the matter to proceed further. Accordingly, for the reasons above, the proceeding before this Court commenced by way of application filed on 13 October 2014, should be dismissed pursuant to rule 44.12 of the Rules, with costs.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date:                  18 February 2015