SZVML v Minister for Immigration

[2015] FCCA 3320

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVML v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3320

Catchwords:
MIGRATION – Review of decision of 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), ss.65, 411, 414, 424A, 424AA, 425

Abebe v Commonwealth (1999) 197 CLR 510
Minister for Immigration v SZIAI (2009) 259 ALR 429

Minister for Immigration v SZNVW & Anor (2010) 183 FCR 575

SZBYR v Minister for Immigration (2007) 235 ALR 609

SZGIY v Minister for Immigration [2008] FCAFC 68

Applicant: SZVML

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3152 of 2014

Judgment of: Judge Driver

Hearing date: 11 December 2015

Delivered at: Sydney

Delivered on: 11 December 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents: Ms N Maddocks of DLA Piper

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 3152 of 2014

SZVML

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.  Background facts relating to the applicant’s claims and the Tribunal decision on them are set out in the Minister’s outline of legal submissions.   

2. The applicant is a male citizen of India born on 28 May 1977.[1]  He arrived in Australia on 1 September 2013.[2]

   [1] Court Book (CB) 12, 59, 148

   [2] CB 43, 62

3. The applicant applied for a protection (Class XA) visa on 14 October 2013.[3] His claims were set out in his application form and an affidavit accompanying the application.[4]

   [3] CB 30-55

   [4] CB 47-50, 56-57

4. The applicant claimed to fear persecution in India for reason that he was an active member of the Bharathiya Janatha Party (BJP), he was the pujani of the local temple, and that he was put on a “hit list” by the Muslim League in 2003.  He claimed that, on 9 August 2010, he was attacked by Muslim League people in the middle of the night and that he lost his index finger during this incident.

5. A delegate of the Minister refused to grant the visa on 31 March 2014.[5]  The delegate found that the applicant was not a credible witness, that the applicant’s circumstances in India were not as claimed, and that the applicant was not attacked by members of the Muslim League on 9 August 2010.

   [5] CB 82-99

6. The applicant applied to the Tribunal for review of the delegate's decision on 24 April 2014.[6]

   [6] CB 100-105

7. The applicant gave oral evidence before the Tribunal on 2 October 2014.[7] 

   [7] CB 127

8. The Tribunal made its decision on 20 October 2014.[8]  The Tribunal affirmed the decision not to grant the applicant a protection (Class XA) visa.  

   [8] CB 152-161

The Tribunal’s decision

1. The Tribunal found that the applicant was not a credible witness and rejected the entirety of the applicant's claims as false, on the basis of inconsistencies in the applicant's evidence.[9]  Specifically, the Tribunal did not accept that the applicant held a position or ever worked for the BJP, did not accept that the applicant was attacked, injured and threatened as claimed, or that some of his family members moved away because of that attack, and did not accept that the applicant was on a hit list or that he was of any adverse interest to any members or associates of a rival political party or the Muslim League.[10] 

   [9] CB 154-157, [12]-[21] 

   [10] CB 154 [12]

2. As such, the Tribunal found that there was no real chance the applicant would be harmed if he returned to India for a Convention reason,[11] nor were there substantial grounds for believing that there was a real risk the applicant would suffer significant harm as a necessary and foreseeable consequence of his removal from Australia to India.[12]

   [11] CB 157-158, [27]-[28]

   [12] CB 158 [32]

The present application

1. These proceedings began with a show cause application filed on 13 November 2014.  The applicant continues to rely upon that application.  He has not taken up the opportunity I afforded him to file and serve an amended application or additional evidence.  The application was supported by a short affidavit filed with it which I received as a submission. 

2. I received as evidence the court book filed on 14 January 2015. 

3. The parties made oral submissions at the trial of the matter today. 

4. The grounds in the application are in a template form with which the Court is familiar:

   1.The Refugee Review Tribunal denied the Applicant procedural fairness by reaching adverse conclusion that the inconsistencies between the applicant’s oral evidence and written statement, being conclusion that were not obviously open on the known material, without giving the applicant to make a written comments in respect of those matters.

   2. The Tribunal had no jurisdiction to make the said decision because its reasonable satisfaction was not arrived in accordance with the provisions of the Migration Act.

   3. The Tribunal’s decision was unjust and made without taking into account the full gravity of the applicant’s circumstances and consequences of the claim.

   4.    The Tribunal has failed to investigate the claim, specially the grounds of persecution in India.  Therefore the Tribunal decision was a judicial error.

5. I invited the applicant to provide orally particulars of those grounds.  He is concerned that the Tribunal did not give him the opportunity to deal in writing with the Tribunal’s credibility concerns as detailed at CB 154-156.  In particular, he is concerned that he did not have the opportunity to respond in writing to the Tribunal’s concerns about his claimed injuries and hospitalisation. 

6. It is apparent from [16] and [17] of the Tribunal’s decision that it was concerned about inconsistencies between the applicant’s written and oral claims about those matters. An obligation to provide the applicant with the opportunity to respond in writing to the Tribunal’s concerns would only arise if s.424A of the Migration Act 1958 (Cth) (Migration Act) were engaged. In my opinion the Tribunal’s concerns about inconsistencies between the applicant’s written and oral claims was not information enlivening that section.

7. The Tribunal does record at [20] of its reasons that it put information to the applicant orally pursuant to s.424AA of the Migration Act. That information was obtained by the Tribunal from departmental records and concerns the delay by the applicant in departing India for Australia after receiving an Australian visa. It is debatable whether that information engaged the operation of s.424A. If it did not then no obligation to provide an opportunity to respond in writing would have arisen.

8. If the section was engaged then the opportunity to respond in writing would only arise if the Tribunal did not meet its obligations to provide the information orally. On the information before me, there is nothing to support an argument that the Tribunal did not comply with any obligation arising pursuant to s.424AA.

9. The applicant sought to tender at the outset of the hearing today certain additional documents.  Two were medical records which were already in the court book at pages 74 and 75.  The other document is the applicant’s Indian passport which he was unable to provide to the Tribunal.  He had provided the Tribunal with a later passport.  The applicant claimed to have visited Israel in order to escape persecution in India.  That visit was not evidenced in the passport before the Tribunal and the applicant claimed that a visa was in an earlier passport. 

10. The Tribunal provided the applicant with time in order to furnish the Tribunal with the earlier passport but nothing was provided within the time provided by the Tribunal.  The applicant explained to me that he could not meet the Tribunal’s timetable because the passport was held up in the Australian post office for about one and a half months.  The passport provided to me by the applicant was marked for identification.  It is a passport issued in 2006 which remains current until 3 September 2016.  The passport contains a visa for Israel for the period during which he claims to have visited that country.  It appears to be a form of business visa.  The passport contains entry and departure stamps for Ben Gurion Airport in Israel.  The information in the passport, if it had been available to the Tribunal, would have supported the applicant’s claim to have visited Israel.  It would not have supported the applicant’s claim to have sought protection as a refugee in that country.  That is because the passport evidences the visit but not what occurred while the applicant was in Israel. 

11. In any event the Tribunal’s concern as set out at [14] of its reasons was inconsistency between the applicant’s asserted visit to Israel and his earlier written claim that he had been in hiding in his house in India at the relevant time.  The passport, if it had been available, would not have cured that inconsistency.  I conclude that the passport, while it may be of some interest to the Minister should he be invited to reconsider the applicant’s claims and be minded to do so, is not of assistance to the Court. 

12. I invited the applicant to expand upon the other grounds in his application.  His submissions in response to that invitation went to the merits of the Tribunal’s decision.  The Minister’s submissions otherwise deal with the applicant’s grounds of review.  I agree with those submissions. 

Ground 1

1. Ground 1 alleges a denial of procedural fairness. Such an allegation cannot be made out for reason that the Tribunal complied with its statutory obligations pursuant to Division 4 of Part 7 of the Migration Act.

2. First, the Tribunal complied with the hearing rule codified in s.425 of the Migration Act and traversed the issues dispositive of the review with the applicant at hearing on 2 October 2014.

3. Secondly, as noted above, the Tribunal’s obligations under s.424A were not generally enlivened in this matter. Also, as noted above, the information put to the applicant regarded the applicant's delayed departure from India. The Minister submits that this was not s.424A information as it did not directly undermine, deny, or reject the applicant's entitlement to a protection visa in any respect.[13] Nevertheless, the Minister submits that it was not an error for the Tribunal to put this information to the applicant pursuant to s.424AA in circumstances where its obligations under s.424A were not enlivened.[14]  I agree.

   [13] SZBYR v Minister for Immigration (2007) 235 ALR 609, 615 at [17]

   [14] SZGIY v Minister for Immigration [2008] FCAFC 68 at [30]

4. In so far as the applicant asserts that the Tribunal did not allow him to make written comments about the inconsistencies in his evidence, the Tribunal was under no obligation to invite the applicant to make such comments.

Ground 2

1. Ground 2 asserts that the Tribunal had no jurisdiction to make its decision because its reasonable satisfaction was not arrived at in accordance with the provisions of the Migration Act.

2. In so far as the applicant asserts the Tribunal did not have jurisdiction, the applicant is incorrect. The Tribunal had jurisdiction as it had before it a valid application pursuant to s.411 of the Migration Act, which it reviewed in accordance with s.414. In circumstances where the Tribunal was not able to reach the requisite state of satisfaction required in order to find that the applicant satisfied the criteria for grant of the visa, the Tribunal was correct to affirm the decision under review in accordance with s.65 of the Migration Act.

Ground 3

1. Ground 3 alleges that the Tribunal’s decision was unjust and made without taking into account the full gravity of the applicant's circumstances and consequences of the claim. 

2. The Tribunal considered the totality of the applicant’s claims and made findings of fact open to it on the evidence and material before it.  Specifically, the Tribunal detailed the applicant's claims at [5]-[6], and rejected his claims in their entirety at [12] on the basis that the applicant was not a credible witness[15].

   [15] also at [25]

3. In relation to the applicant's evidence, the Tribunal detailed the evidence provided by the applicant at hearing at [9] and [23], and the evidence previously provided to the Department at [22]. 

4. Given the Tribunal’s concerns with the applicant's credibility, the Tribunal placed no weight on the evidence provided to the Department or the photographs submitted at hearing, at [22]-[23]. 

5. In respect of the medical documents submitted at hearing, the Tribunal considered these documents at [26], accepted that the applicant had diabetes and asthma, but in light of its adverse credibility finding, did not accept the applicant's claim that he was unable to receive treatment in India[16].

   [16] at [26]

6. This ground goes no higher than to seek impermissible merits review. 

Ground 4

1. Ground 4 alleges a failure to inquire on the part of the Tribunal. 

2. It is well-settled that the Tribunal is under no general obligation to conduct inquiries.  It is for the applicant to present evidence and advance such submissions as he considers relevant to his application.[17] 

   [17] Abebe v Commonwealth (1999) 197 CLR 510 at [187]; Minister for Immigration v SZNVW & Anor (2010) 183 FCR 575, 586 (Keane CJ), 589 (Emmett J); Minister for Immigration v SZIAI (2009) 259 ALR 429, 436

3. To establish a duty to inquire, the applicant needs to show that there was an obvious inquiry that the Tribunal could have made about a critical fact, the existence of which was easily ascertained.[18]  In the absence of any particulars, this ground cannot be made out.

   [18] Minister for Immigration v SZIAI (2009) 259 ALR 429, 434-436

4. I conclude that the applicant has failed to demonstrate an arguable case of jurisdictional error by the Tribunal. It follows that the application should be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules) and I so order.

5. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. 

6. The applicant did not wish to be heard on costs. I will order that 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.

7. I order that the name of the second respondent be amended to the Administrative Appeals Tribunal

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  14 December 2015