SZVLA v Minister for Immigration

[2015] FCCA 3039

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVLA v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3039

Catchwords:
MIGRATION – Review of decision of the former Refugee Review Tribunal – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), s.425

Applicant: SZVLA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3072 of 2014

Judgment of: Judge Driver

Hearing date: 12 November 2015

Delivered at: Sydney

Delivered on: 12 November 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms R Krishnan of Australian Government Solicitor

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 in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3072 of 2014

SZVLA

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 20 October 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 Georgia and had made claims of political persecution.  Background facts concerning the applicant’s claims and the decision of the Tribunal on them are set out in the Minister’s legal submissions. 

3. The applicant, a citizen of Georgia, arrived in Australia on 8 September 2013 on a Business Visitor visa valid until 23 September 2013[1]. He lodged the application for the protection visa on 19 September 2013[2].

   [1] Court Book (CB) 27-28.

   [2] CB 1-26.

4. The applicant claimed to have been an active member of the National Movement of Georgia (United National Movement) (UNM) since September 2007. He claimed to have worked as an administrator from 2007 until the September 2013 in addition to campaigning for the party. He claimed that after Georgian Dream (GD) won the 2012 election, it had been oppressing members of UNM. In particular he claimed the following[3]:

   a)on 26 February 2013 he was abducted, beaten and threatened by masked men. He reported this incident to the police and a NGO. Following this incident he received threats both in person and by telephone;

   b)on 4 June 2013 the applicant was followed into his house by plain clothes policemen who planted drugs. He was taken to the police station and given a last warning to quit UNM. He was held (he gave differing accounts of how long this lasted) and later released on bail;

   c)on 27 July 2013 he was again abducted and hospitalised for two weeks with a brain injury after being assaulted; and

   d)he applied for a passport in May 2013 but did not leave Georgia until 2 September 2013.

   [3] CB 29-31, 38-40, 83 at [11].

5. On 5 May 2014 the delegate refused to grant the protection visa, finding that the applicant’s claims were not consistent with his actions or independent reports on conditions in Georgia. The delegate found the applicant fabricated a series of claims in support of his application and in an attempt to “fill in” the period between the October 2012 election and his departure for Australia in September 2013[4].

   [4] CB 48-53.

6. On 22 May 2014 the applicant sought review of the delegate’s decision. On 5 September 2014 the Tribunal invited the applicant to attend a hearing to be held on 15 October 2014[5] and also to provide a written submission by 8 October setting out all claims made and maintained[6]. The Tribunal stated that “(t)he submission should be accompanied by a signed declaration from the applicant that the submission has been read and explained to them and that it accurately and completely presents their claims.”

   [5] CB 58.

   [6] CB 57.

7. On 30 September 2014 the applicant, through his migration agent, accepted the invitation to attend a hearing[7]. The applicant provided a statutory declaration in which he stated “(t)he submission to the Refugee Review Tribunal has been read to me and explained and that this submission accurately and completely presents my claims”[8]. The accompanying letter from the migration agent stated “(t)he applicant instructed me to submit that he maintains the same claims that have been outlined in his initial submission to the department of Immigration”[9].

   [7] CB 61-62.

   [8] CB 64.

   [9] CB 63.

8. On 15 October 2014 the applicant appeared before the Tribunal to give evidence assisted by an interpreter in the Georgian and English languages[10].

   [10] CB 65-67.

9. The Tribunal affirmed the delegate’s decision on 20 October 2014, notified to the applicant by email and letter dated 21 October 2014[11]. The Tribunal found the entirety of the applicant’s claims to have been fabricated[12]. The Tribunal found the applicant’s evidence to be vague and many of his answers evasive[13]. In reaching this conclusion, the Tribunal took into account the following:

   [11] CB 75-90.

   [12] CB 89 at [20]-[21].

   [13] CB 83-86 at [13].

   a)the Tribunal found the applicant’s evidence about the party background and its policies to be “too broad and very vague”. The Tribunal’s Reasons disclose that it put questions to the applicant about the policies of the UNM and seats held as a result of the 2012 elections but that the applicant had no knowledge of these matters[14];

   b)the applicant’s evidence was that he did hold a major role with the UNM but was an administrator in one area. Based on the applicant’s evidence, the Tribunal did not accept such a minor role would have made the applicant the target of the GD. The Tribunal also took into account that 40% of Georgians voted for UNM in the 2012 elections. The Tribunal considered there was no logical reason for members of the GD or any other party to attempt to force the applicant to abandon the UNM[15];

   c)the Tribunal considered it significant that the applicant took no steps to avoid the claimed harm but continued to live at his home and continued his employment with the UNM until he left Georgia. The Tribunal considered that if the applicant had experienced the matters he claimed to have experienced, he would have taken at least some steps to avoid harm, by moving his residence, changing jobs or removing his family form the area[16];

   d)the applicant claimed he was in hiding at his home, a claim the Tribunal found was nonsensical, given his home was well known to those who wished him harm and contradicted his claim to have continued his employment with the UNM[17];

   e)the Tribunal did not accept the applicant’s explanations for his delay in leaving Georgia given his passport was issued in May 2013[18];

   f)the Tribunal did not accept the applicant was required to report to police after his release on bail, given he was able to leave the country legally and without difficulty. The Tribunal did not accept the applicant’s explanation for this, considering his claims that the party paid at the airport to be a recent invention[19];

   g)the Tribunal found the applicant’s evidence in relation to his visitor visa to be evasive, raising doubts about the truthfulness of information contained in the application for that visa and/or the protection visa[20];

   h)the applicant provided to the Tribunal a party membership card[21] showing the applicant was a member of UNM on 22 August 2013 which the Tribunal found did not support the applicant’s claims and found it ‘inexplicable’ that the applicant was unable to produce any other document corroborating his employment with the UNM and other claims[22];

   i)the Tribunal listed a number of inconsistencies in the applicant’s evidence given by the applicant in relation to his salary, whether he had been charged by police with any offence, a new claim that a firearm had been planted in his desk by police, information contained in his initial application for the visa, his ability to recall precise dates but not the days of the week when certain event occurred and the date of his release from custody in 2013. The Tribunal did not accept the applicant’s explanation regarding the preparation of the application, with which he claimed to be unfamiliar[23]; and

   j)the Tribunal was also concerned by the absence of any supporting documents, for example hospital records, police reports, records of employment, record of arrest or bail. The Tribunal did not accept the applicant’s evidence that his house was burnt in August 2013 and all documents had disappeared noting there was no documentary evidence to support this assertion[24].

   [14] CB 84 at [13(a)].

   [15] CB 84 at [13(b)].

   [16] CB 84-85 at [13(c)].

   [17] CB 85 at [13(d)].

   [18] CB 85 at [13(e)].

   [19] CB 85 at [13(f)].

   [20] CB 85 at [13(g)].

   [21] CB 70,72.

   [22] CB 86 at [13(h)].

   [23] CB 86-88 at [14] – [16]

   [24] CB 88-89 at [17]-[18].

10. Taking all these matters into account, the Tribunal found there was no real chance the applicant would be persecuted for the reason of his political opinion or for any other reason or combination of reasons[25]. As the Tribunal considered the applicant’s claims to have been fabricated, it also found he was not entitled to complementary protection[26].

    [25] CB 89 at [22].

    [26] CB 90 at [23].

The present proceedings

1. These proceedings began with a show cause application filed on 5 November 2014.  The applicant continues to rely upon that application.  The applicant has not taken up the opportunity I gave him in orders I made on 2 December 2014 to file an amended application and additional evidence.  The applicant frankly conceded in oral argument today that he has nothing further in documentary form to submit to the Court.

2. The show cause application contains the following four grounds:

   1. The decision maker made a jurisdictional error by not considering all my relevant claims

   2: The Tribunal decision was not made according to law

   3: The Tribunal decision was affected by non-compliance with procedural requirements

   4: I was denied procedural fairness

3. The first two grounds are repeated in an affidavit by the applicant filed with the application.  I received that document as a submission. 

4. I received as evidence the book of relevant documents filed by the Minister on 18 December 2014. 

5. The applicant denied receipt of that book of relevant documents, although he admitted receiving the letter which accompanied it.  I provided him with the book of relevant document from the Court file and explained its contents to the applicant.  I am satisfied that the applicant has not been prejudiced by the late provision of the book of relevant documents. 

6. The applicant acknowledged receipt of the Minister’s written submissions, but said that he could not understand those submissions because he does not read English.  He requested a written translation of those submissions.  I declined that request, but had the Minister’s representative present her submissions first so that the applicant could respond to them.

7. The Court had some difficulty in locating a Georgian interpreter for today’s hearing.  Ultimately, an interpreter was booked to interpret by telephone.  It was apparent at the outset of the hearing that the sound reproduction from the courtroom in which the hearing was taking place to the interpreter was not adequate.  While the interpreter could be heard clearly and she could hear clearly both the applicant and the Minister’s solicitor, she could not hear me.  I adjourned the hearing to an alternative courtroom where that problem was overcome.  I am satisfied that the standard of interpretation ultimately achieved was satisfactory.

8. In his oral submissions, the applicant indicated that he considers a key problem he faced before the Tribunal was his inability to produce documents to support his claims.  As I explained to him however, while the lack of documentation was a problem for the Tribunal, the Tribunal had numerous other problems with his claims.  Those problems led the Tribunal to draw adverse credibility conclusions against the applicant.  I am satisfied that the conclusions reached by the Tribunal were open to it on the material before it.

9. No substance has been demonstrated in the grounds of review advanced by the applicant.  The grounds of review put forward by the applicant do not go anywhere without details of particulars. 

10. As regards Grounds 1 and 2, the applicant has not identified the claim that he says was not considered, or on what basis he says the Tribunal decision was not made according to law.

11. The Tribunal’s reasons disclose that it considered and addressed each of the applicant’s claims and explanations in detail, as outlined above. There is no apparent error in the findings made in relation to these claims.

12. These grounds do not raise an arguable case for the relief claimed.

13. As regards grounds 3 and 4, there is no evidence that the Tribunal failed to comply with s.425 of the Migration Act 1958 (Migration Act) or any other element of the code of procedure set out in Division 4 of Part 7 of the Migration Act. The Tribunal’s reasons disclose that issues dispositive of the review were raised with the applicant at the hearing[27]. The applicant has not complained of any difficulty with the standard of interpreting at the hearing nor of bias on the part of the Tribunal member. Neither of these grounds raise an arguable case for the relief claimed.

    [27] See, for example, Tribunal’s reasons at [13]-[14].

14. The applicant conceded in oral argument that he was unable to establish his claims for protection.  He nevertheless maintains that his claims are genuine.  If the applicant were able to give a better account of those claims, the Minister could consider it if he wishes to.  That is beyond the scope of this proceeding.  The applicant is not able to establish an arguable case of jurisdictional error by the Tribunal.

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

16. In consequence of the dismissal of the application, the Minister seeks an order for costs in the amount of $3,416.  That is the amount prescribed under the Court scale and Rules.  The applicant is concerned about his capacity to pay but, as it has been repeatedly stated that it is not a reason for the Court to refrain from making a costs order.  I gave the applicant an explanation of the principles and procedure relating to payment of costs orders.

17. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date: 16 November 2015