SZVLI v Minister for Immigration

[2016] FCCA 3101

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVLI & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3101

Catchwords:
MIGRATION – Application for review of former Refugee Review Tribunal decision – whether Tribunal unreasonable in not adjourning the Tribunal hearing – broad assertions of jurisdictional error in Tribunal’s reasoning – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.425, 427, 476

Cases cited:

Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845; (2000) 98 FCR 469

First Applicant: SZVLI

Second Applicant: SZVLJ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3082 of 2014

Judgment of: Judge Nicholls

Hearing date: 31 October 2016

Date of Last Submission: 31 October 2016

Delivered at: Sydney

Delivered on: 31 October 2016

REPRESENTATION

Applicants: First applicant in person and on behalf of the second applicant.

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the second respondent is amended to read ‘Administrative Appeals Tribunal’.

2. The application made on 6 November 2014 is dismissed.

3. The first applicant pay the first respondent’s costs set in the amount of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3082 of 2014

SZVLI

First Applicant

SZVLJ

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. I have before me today an application made to the Court on 6 November 2014, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), which, on 3 October 2014, affirmed the decision of the Minister’s delegate to refuse protection visas to the applicants.

   The evidence before the Court is contained in a bundle of relevant documents filed, and tendered by the Minister (“the Court Book” – “CB”, “RE1”). I note also that the first applicant has pressed an affidavit said to have been made on 3 March 2015. I will return to this document later. 

Background

1. The applicants before the Court are father (“the applicant”) and son (“the second applicant”).  Both are citizens of India.  They arrived in Australia on 27 March 2013 as visitors, that is, as tourists.  The applicant’s wife who, it appears, travelled with them returned to India shortly after her arrival, where they had left their other two children. 

2. The applicant and his son, the second applicant, applied for protection visas on 10 May 2013 (CB 1 to CB 40).  The second applicant applied as a member of his father’s family unit.  As the applicant explained to the Court, they are “one unit”. 

3. The applicant’s claims to protection were initially set out in a statement attached to the protection visa application (CB 34 to CB 36).  He claimed to fear harm because of his membership of a low caste, his past involvement in certain union activity and politics, his success as a businessman, and as a follower of a person called Bab Ram Rahim Singh who was a person whom he said was a “controversial figure” in the Sikh community. 

4. The delegate refused the grant of the visas on 6 January 2014 (CB 61 to CB 79).  The delegate found inconsistencies between the applicant’s written statement, and information that he gave to the delegate at an interview.  The delegate rejected the applicant’s claim to have suffered harm.  It is clear from the decision record that the delegate had concerns about the credibility of the claims and found that there were indications that the applicant made false claims so as to remain in Australia (see CB 72). 

5. The applicants applied for review to the Tribunal on 31 January 2014. They were assisted by a registered migration agent (CB 80 to CB 85).  By letter dated 10 July 2014, the applicants were invited to a hearing before the Tribunal scheduled for 2 September 2014 (CB 98 to CB 99).  On 21 July 2014, the applicant sought an adjournment of that hearing because he said he wanted to obtain documents from a government official in India (CB 100). 

6. The Tribunal responded on 11 August 2014, and informed the applicant that the request for an adjournment was refused because he had already had a reasonable amount of time to prepare for the hearing scheduled for 2 September 2014 (CB 103).  The applicants’ representative made written submissions to the Tribunal on 26 August 2014 (CB 107 to CB 109).  The applicant attended the hearing on 2 September 2014.  The second applicant did not appear. However, it is clear from the Tribunal’s decision record (see [10] at CB 115) that the applicant represented his son’s interests, noting again that the second applicant made no claims in his own right.  He relied on his membership of his father’s family unit. 

7. The Tribunal’s account of the hearing as set out in its decision record, reports on the claims made by the applicant to the Tribunal ([10] at CB 115 to [24] at CB 117).  The Minister’s written submissions filed in these proceedings set out a fair summary of those claims.  For the sake of convenience, and because I am satisfied it is a fair and an accurate reflection of what the Tribunal stated, I adopt [4] of the Minister’s written submissions:

   “In support of his claims to fear harm, the applicant made a number of factual claims, which may be summarised below:

   a) He was born into a Sikh family and is of Shadool caste. He was always discriminated against by members of the Jatt caste. He was a member of the Indian National Lok Dal Party.

   b) He started his own business in 2006 and had four trucks. Every political party in the state of Haryana had their own hitmen and terrorist groups to collect money from businesses. Baljinder Singh, a member of Congress, asked for funds from the Applicant.

   c) In 2005, the Applicant was elected president of the Truck Union Association Taraori District Karnal India. He remained in this position for five years until he lost the election. He was subsequently investigated by Chief Minister Audit Department and accused of embezzlement of Union funds. He paid some money to an auditing team to stay away from the embezzlement case.

   d) In March 2011, he was accused of murdering Gurnam Singh, one of his truck drivers. The police harassed him and his family and he was on pre-bail for some time.

   e) In October 2011, members of an opposing political party attacked him and he was badly injured.

   f) In 2012, he defended the murder case and the charge was dismissed. He incurred costs in defending the case and, as a result, his business went down.

   g)   In June 2012, he started receiving death threats because Bab Ram Rahim Singh visited him at his home. He was a follower of Bab Ram Rahim Singh, who was highly controversial amongst the Sikh community.

   h) In 2012, Jatt caste members attacked him, and his wife and sons were badly injured.

   i) He became aware that an opposing political party was arranging to arrest him, so he applied for a visa to visit Australia in March 2013.

   j) On 20 March 2013, the Police raided his office and took all his records.

   k) On 21 March 2013, the Police raided his house to arrest him but he was not at home.”

8. The Tribunal affirmed the delegate’s decision on 3 October 2014.  The Tribunal found that the applicant had fabricated his claims in relation to his experiences in India, and his fears if he were to return ([31] at CB 118). 

9. The Tribunal gave extensive reasons for this finding, which were probative of the material before it.  In essence, the Tribunal found that the applicant, when asked for details about the claimed events of past harm, “provided very vague and unconvincing responses” ([32] at CB 119).  The Tribunal found that the applicant was unable to provide the level of detail that would have been expected from someone who had experienced these claimed events. The Tribunal gave a number of further examples to support this conclusion. 

10. The Tribunal also found the applicant’s evidence as to why he did not apply for protection in Malaysia when he had the opportunity to do so, to be “fanciful and implausible” ([38] at CB 120). 

11. The Tribunal also found the applicant’s evidence indicated that his aim in claiming protection in Australia was to remain here for his son’s education and future, and not for the reasons that he had claimed ([37] at CB 119 to CB 120).  The Tribunal was also concerned with the fact that the applicant, who entered Australia on a tourist visa, did not apply for protection for a period of over two months, despite his claimed experiences in India.  The Tribunal found that the applicant’s explanation in circumstances where he stated that although he knew about protection, and he had been able to obtain employment in Australia, accommodation, and enrol his son in school, was not a satisfactory explanation for the delay. The Tribunal found that the applicant’s concerns about protection were not genuine ([39] at CB 120). 

12. The Tribunal rejected the entirety of the applicant’s claims.  It found he did not satisfy either criterion for the grant of the protection visa [41] at CB 120). 

Before the Court

1. The applicants then applied to this Court for judicial review of the Tribunal’s decision. The applicant has appeared before a Registrar of the Court on two occasions.  Despite orders made giving the applicants the opportunity to file any amended application or written submissions, nothing of that nature has been filed in these proceedings. 

2. However, the applicants have filed an affidavit made on 3 March 2015.  As mentioned previously, there are some difficulties with this affidavit.  It is, on its face, said to have been made by both applicants. However, it is only signed by one applicant.  I will again return to this document later.

3. The grounds of the application to the Court are in the following terms: 

   “(1) The applicant asked the Tribunal for additional time to obtain documents from India in support of his claims.  The Tribunal refused to give the application additional time.  The Tribunal’s refusal was unreasonable and involved jurisdictional error.

   (2) The applicant told the Tribunal that he wanted his son to study in Australia.  The Tribunal reasoned that “this indicates that the applicant’s aim in claiming protection in Australia is … not for the reasons claimed”.  This reasoning process involves jurisdictional error.

   (3) The Tribunal found that the applicant had fabricated his claims.  The Tribunal fell into jurisdictional error in making this finding.”

   [Errors in original.]

4. Before the Court today, only the first applicant appeared.  He was assisted by an interpreter in the Hindi language.  The second applicant did not appear. I am satisfied on what the applicant told the Court that his son knew of the Court event, and that the second applicant was content for his father to speak for him. 

5. When given the opportunity to make submissions to the Court, the applicant said nothing which would give rise to any indication of legal error on the part of the Tribunal.  In essence, the applicant asked the Court to remit his matter to the Tribunal. He said that on any subsequent occasion he would “go back” and “tell them” (the Tribunal) “nicely” of his fears.  As I explained to the applicant, this Court can only intervene to remit the matter to the Tribunal if some legal error is found in the Tribunal’s decision record.  Indeed, that is to be understood as not just any legal error, but the species of legal error identified as a “jurisdictional error”.  This immediately directs attention to the grounds of the application.

Consideration 

1. Ground one complains that the Tribunal unreasonably refused the applicant additional time to obtain documents from India in support of his claims.  The ground is not particularised, and when given the opportunity to explain it today, the applicant provided nothing further to explain the ground. 

2. On the evidence before the Court, the following requires attention in light of what is stated in the applicant’s ground. As mentioned earlier, the applicant was invited to a hearing before the Tribunal pursuant to s.425 of the Act by letter dated 10 July 2014, and scheduled for 2 September 2014 (CB 98 to CB 99). The applicant’s representative subsequently wrote to the Tribunal seeking “further time”. That is, a postponement of the hearing date because he said (at CB 100):

   “Applicant [applicant’s name] wish to request for more time for the hearing as he is in the process of getting all the supporting documents from the Government official in India to support his application…”

   [Errors in original.]

   It is of note that these documents were not identified.

3. The Tribunal refused this request on the basis that the applicant had made his visa application on 10 May 2013, and that the applicant therefore had had a reasonable amount of time to prepare for the hearing. 

4. It is clear from the Tribunal’s account of the hearing that the applicant alluded to a number of documents which he said supported his claims.  These were said to be a police report concerning an alleged attack in 2012, and a newspaper report. The Tribunal reports as follows (see [17] at CB 116):

   “The applicant also said that there was a newspaper report regarding when he was attacked. The Tribunal asked the applicant if he had a copy of the report, to which he answered no. The Tribunal raised that it was unusual that the applicant would not be able to provide such a report, and the applicant said it was his ‘bad luck’. During the hearing the Tribunal raised that the lack of police, court, newspaper and/or hospital reports in support of the applicant’s claims was raised by the Department, and it believed that the applicant had sufficient time between his original application and/or his Departmental decision and the hearing to obtain and provide such evidence.”

5. There is nothing in the evidence before the Court to indicate that at the hearing, or subsequently, the applicant asked for more time to provide any documents.  In fact, the Tribunal’s account reveals that at the end of the hearing when the Tribunal invited him to “add anything else”, the applicant asked if the Tribunal could obtain “a Student Visa for his son” ([24] at CB 117).  The applicants have not provided any evidence by way of transcript of the Tribunal hearing in order to challenge the Tribunal’s account of what it said occurred at the hearing.  On all the evidence before the Court therefore, it appears that the only request made by the applicant for “more time” was the request made through his representative prior to the hearing, and following the invitation to the hearing. 

6. It is the case, as the Minister correctly submits, that the Tribunal may, pursuant to s.427(1)(b) of the Act, adjourn the conduct of the review, from “time to time”. This includes any adjournment of the date of the Tribunal hearing. The Minister submits that the applicant’s request, as put by the representative, did not indicate that he could not, or would not, attend the hearing, but rather that he was in the process of obtaining documents.

7. In my view, it is reasonable to infer, as the Tribunal obviously did, that the request for more time was put because the applicant said he was in the process of obtaining documents and was therefore a request to adjourn the date of the hearing.  That is, that it was a request for the Tribunal to exercise a statutory discretion to adjourn the conduct of the review.  As the Minister submits, in that consideration of the exercise of a statutory discretion the law requires the Tribunal to act reasonably (Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (“Li”) and Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845; (2000) 98 FCR 469).

8. In the current case, the Tribunal provided its reasons for refusing the applicant’s request.  This was that he had had a reasonable amount of time since lodging his protection visa application, and even since the refusal of that application by the delegate, to prepare for the Tribunal hearing.  In context, that includes a reasonable time to obtain the documents that he said he wanted to obtain. 

9. That reasoning provides an “intelligible justification” for the Tribunal’s refusal to adjourn or extend the time for the hearing (Li at [76]). I agree with the Minister’s submissions that in the circumstances the Tribunal’s refusal cannot be characterised as arbitrary or capricious, or as being without common sense or unjust or simply unreasonable (Li at [28]). It was, as is again submitted, within the “area of decisional freedom” conferred upon the Tribunal by s.427(1)(b) of the Act (Li at [28]) at . In all, ground one is not made out.

10. Ground two takes issue with the Tribunal’s statement at [37] (at CB 119 to CB 120) of its decision record, that the applicant sought to remain in Australia for his son’s future, and not for protection.  Ground three takes issue with the Tribunal’s finding, which appears to be expressed at [31] (at CB 118), that the applicant fabricated his claims. 

11. A fair reading, if not a plain reading, would suffice to find that both of the conclusions reached by the Tribunal and all of the antecedent findings that informed those conclusions, were all reasonably open to it on what was before it. 

12. As the Minister submits, findings of fact include findings of credibility, in circumstances where the Tribunal gave reasons, and made findings open to it, probative of the material and evidence before it.  This does not reveal jurisdictional error. As I explained to the applicant, even if the Court were to disagree with the Tribunal’s factual conclusions, such disagreement is not sufficient, without anything else, to reveal jurisdictional error on the part of the Tribunal. 

13. The Minister submitted, probably for the sake of completeness, that ground two may also be read as a contention that the Tribunal’s finding at [37] (at CB 119 to CB 120) was illogical or unreasonable.  Again, I agree with the Minister that the Tribunal’s reasoning proceeded on the evidence that was put before it. Relevantly, the applicant’s evidence that his son was studying in Australia and that he wanted his son to remain here. 

14. It is the case that these statements were considered by the Tribunal to indicate that the applicant’s aim in applying for a protection visa was to stay in Australia for his son’s education and future.  This was open to the Tribunal on the evidence before it, and cannot be said to be unreasonable. The Tribunal’s finding did have a logical connection with the evidence before it.  As I mentioned earlier, the Court can only proceed on the evidence that is put before it, and on the Tribunal’s account of the hearing, which is the only account in evidence before the Court, its findings were reasonably open to it. 

15. As mentioned earlier, the applicant has also presented to the Court the affidavit of 3 March 2015 to which is attached a number of documents.  As I indicated earlier, there were a number of difficulties with this document.  It asserts to be the affidavit of both applicants, but is signed only by the first applicant.  In his application for the protection visa, the applicant is asked the question: “What languages do you speak, read or write (including English)?”, as is clear, there is a specific reference to “including English” (see CB 13). However, the applicant only responded that he speaks, reads and writes Hindi.  He made no claim to speak, read or write English.  Yet, the affidavit before the Court, although witnessed by a Justice of the Peace, does not contain any interpreter’s jurat certifying that the applicant, who otherwise said he did not speak, read or write in English, had had the contents of the affidavit translated for him. 

1. In any event, I note that the Minister, taking into account the applicant’s unrepresented status, made no formal objection to the affidavit. For the reasons that follow, even if the affidavit were to be read into evidence, it would not assist the applicants as it is not directed to any fact in issue before the Court.

2. The Minister made submissions that the affidavit did no more than seek impermissible merits review from the Court.  I agree with that submission.  For the most part, the affidavit repeats claims to fear harm made before the Tribunal. To the extent that the applicant now says he wants to provide documents to the Court, which he does by way of annexure, being some articles and what appears to be some news service reports.  As I repeatedly have said, this Court has no power to intervene, based on those reports or otherwise, to alter the Tribunal’s findings of fact. 

3. In all, therefore, grounds two and three, and the applicant’s affidavit and the annexures to the affidavit, can only be understood as requests for the Court to engage in impermissible merits review.  Grounds two and three are not made out.  The affidavit document, and the attached documents do not assist the applicants in that regard.

Conclusion 

1. In all, there is no jurisdictional error in the Tribunal’s decision.  For that reason, the application to the Court must be dismissed, I will make that order. 

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date: 8 December 2016