SZVRG v Minister for Immigration

[2017] FCCA 1666

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVRG v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1666

Catchwords:
MIGRATION – Administrative Appeals Tribunal – subclass 600 (Business Visitor stream) visitor visa – the adverse findings made by the Tribunal were open – the Tribunal complied with its obligations of procedural fairness – the Tribunal identified the relevant tests in respect of Refugee Convention criteria and complementary protection criteria – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 476.

Federal Circuit Court Rules, r.44.12.

Cases cited:

Spencer v Commonwealth of Australia (2010) 241 CLR 118.

Applicant: SZVRG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3203 of 2014

Judgment of: Judge Street

Hearing date: 18 July 2017

Date of Last Submission: 18 July 2017

Delivered at: Sydney

Delivered on: 18 July 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Mr A Day
DLA Piper

ORDERS

1. The application is dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001.

2. The applicant pay the costs of the first respondent fixed in the amount of $3,606.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3203 of 2014

SZVRG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 22 October 2014 confirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of India and his claims were assessed against that country. The applicant claimed to fear harm in India from “goons” affiliated with the Congress party. The applicant claimed he had been an active member of the Bharatiya Janata Party (“BJP”) and campaigned for the BJP in the 2008 elections. The applicant made claims of past harm after the election in which he stated “goons” affiliated with the Congress party attacked him and that he was attacked while campaigning for his party candidate and his family members were intimidated by the local Muslims affiliated with the Congress party.

3. On 11 March 2014, the delegate refused the grant of a protection visa and found that the applicant failed to meet the criteria under the Act. 

The Tribunal’s decision

1. The applicant lodged an application for review on 3 April 2014. The applicant was invited to attend a hearing on 9 October 2014. The applicant appeared on that date to give evidence and present arguments.

2. The Tribunal identified the background to the application and set out the relevant law in an attachment incorporated into the reasons of the Tribunal.  The Tribunal set out the applicant’s claims and evidence. 

The applicant’s credibility

1. The Tribunal had significant concerns in relation to the applicant’s credibility and the reliability of his evidence. The Tribunal was not satisfied that the applicant has told the truth in relation to particular aspects of his evidence. The Tribunal identified the applicant’s oral evidence was inconsistent with his written statement in relation to a number of his claims, that the applicant’s explanation for these inconsistencies were not persuasive and that the applicant changed his oral evidence during the hearing.

2. The Tribunal was also concerned about the plausibility of the applicant’s claims and the delay in his departure from India. The Tribunal found the applicant was not a witness of truth in relation to the critical aspects of his claims and did not accept that the applicant was attacked or threatened, or that his family members were threatened by supporters or affiliates of the Indian National Congress party because of the applicant’s activities with the BJP in the 2008 elections. 

3. The Tribunal provided detailed reasons in support of the adverse credibility findings, identifying first a number of significant inconsistencies and omissions between the applicant’s oral evidence and his written statement.

4. Secondly, the Tribunal identified significant concerns about the plausibility of the applicant’s claims and in particular, that he continued to return to and live in his home, and run his business and mobile telephone shop up until he left India in August 2013. 

5. On 26 July 2013, the applicant was granted a subclass 600 (Business Visitor stream) visitor visa and arrived in Australia on 10 August 2013.  The application for protection was lodged on 5 September 2013. The Tribunal also identified and it supported its adverse credibility findings that it had significant concerns about the time that elapsed between the threats beginning in 2008 and the applicant’s departure from India in 2013. 

6. The Tribunal found the applicant’s oral evidence in relation to his claims to be inconsistent and implausible. The Tribunal found the applicant was not a witness of truth and was not satisfied that it could rely on his evidence.

Refugees convention criteria assessment

1. The Tribunal did not accept that the applicant is or was a member of the BJP, or that he was threatened or attacked for his political activities or continued to be threatened because of any political activities. The Tribunal did not accept that the applicant’s family was threatened and intimidated or that the applicant has a subjective fear of returning to India for the reasons claimed. The Tribunal did not accept that anyone was looking for the applicant to attack him due to any past political activity and did not accept that the applicant will be killed or otherwise harmed if returned to India now or in the reasonably foreseeable future. 

2. The Tribunal found the applicant was not a witness of truth and found that there is no real chance that the applicant will be harmed if returned to India and found that the applicant did not had a well-founded fear of persecution.

3. The Tribunal, having considered the applicant’s claims individually and cumulatively, was not satisfied the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. The Tribunal found that the applicant failed to meet the criteria under s.36(2)(a) of the Migration Act.

Complementary protection criteria assessment

1. The Tribunal was not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk the applicant would suffer significant harm. The Tribunal was not satisfied the applicant is a person in respect of whom Australia has protection obligations and the applicant did not satisfy the criteria set out in s.36(2)(aa) of the Migration Act and affirmed the decision under review.

Before this Court

1. Pursuant to orders of the Court, the matter was fixed for a show cause hearing. At the commencement of the show cause hearing, the Court explained to the applicant that this was a hearing under r.44.12 of the Federal Circuit Court Rules 2001 to determine whether the applicant had an arguable case.

2. The Court explained that an arguable case involved whether the applicant had a reasonable argument that the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that in summary, this meant the Court was considering whether the applicant had a reasonable argument that the Tribunal’s decision was unlawful, or a reasonable argument that the Tribunal’s decision was unfair.

3. The Court explained that if satisfied the applicant had a reasonable argument that the Tribunal’s decision was unlawful or unfair, the matter would be fixed for hearing on another occasion. The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed with costs.

4. The Court explained that it would have identified the evidence and that it would hear submissions from the applicant. In that regard the Court identified that the applicant had provided written submissions dated 17 July 2017 that the Court would take into account. The Court also explained that it would hear submissions from the applicant and the solicitor for the first respondent and that the applicant would given an opportunity to reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

5. The grounds in the application are as follows:

   1. The Refugee Review Tribunal denied the applicant procedural fairness by reaching adverse conclusions that applicant claims were implausible, being conclusions that were not obviously open on the known material, without giving the applicant opportunity to make comments in respect of those matters.

   2. The Tribunal failed to consider an integer of the applicants claim, in failing to consider whether or not a BJP activist in India was at risk of harm from Congress Party, and not able to access effective protection.

   3. 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.

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

   5. The Tribunal has failed to investigate the claim, specially the grounds of persecution in India. Therefore the Tribunal decision dated on 22 October 2014 was a judicial error.

6. The content of the paragraphs in the submissions are as follows:

   1. The Tribunal had acted illogically when concluded that “The Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that the applicant will suffer significant harm.” The Tribunal committed a clear 'jurisdictional error', because it failed to weigh properly the effect of the following;

   (a) The Applicant was an active member of political party.

   (b) The opposition part)r threatened to kill the applicant.

   (c) The opposition party members are involved in coordinated political violence to propagate their ideologies and attack the individual opposing their ideology.

   2. The second respondent failed to comply with the mandatory requirement under section 424A(read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applic1111t understood why that information was relevant to the review and the consequences of its being relied upon, and to invite the applicant to comment upon or respond to that information.

   Particular:

   The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act.

   3. The Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958.

   The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon his returns to India.(see SYG2227 v Minister for Immigration and Border protection(2015).

   4. The Tribunal exceeds is jurisdictional or constructively failed to exercise its jurisdiction or denied Applicant procedural fairness in that the Tribunal failed to investigate Applicant's genuine claim with the requirement of Migration Act 1958.

   Therefore the applicant submit that the Tribunal failed to analyse properly the “future harm" the applicant will suffer as a consequence of the applicant being removed from Australia.

   Hence, due to this failure, the Tribunal had committed a serious jurisdictional error by failing to assess or carry out the 'real chance' test, before dismissing the applicant claims.

7. The Court indicated to the applicant that it would treat the applicant’s written submissions as supplementing the alleged grounds in the application. 

Applicant’s submissions from the bar table

1. From the bar table, the applicant maintained that he had told the truth.  It was a matter for the Tribunal to determine the applicant’s credibility.  The Tribunal provided rational and logical reasons for the adverse credibility findings. Those adverse credibility findings were open on the material before the Tribunal.

2. The applicant also sought to provide from the bar table, an explanation for his delay in departure from India, having obtained the subclass 600 (Business Visitor stream) visitor visa. The applicant maintained that he could not afford to leave earlier.

3. This Court does not have the power to revisit the merits of the application. It was a matter for the Tribunal to determine whether it accepted the applicant’s claims. It was open to the Tribunal to take into account the delay in the applicant’s departure, as well as the delay from the alleged incidents raised by the applicant in determining the applicant’s credibility.

4. The applicant also asserted from the bar table that there are current political problems and that the person he regarded as a godfather had recently been killed. That was not a matter that was before the Tribunal. A matter that was not before the Tribunal in relation to the applicant’s claims cannot give rise to any jurisdictional error by the Tribunal. Nothing said by the applicant from the bar table identified any jurisdictional error. I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118, at [24]-[25] and [59]-[60].

Consideration

Ground 1

1. In relation to ground 1, on the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the applicant had a real and meaningful hearing. On the face of the material before the Court, the Tribunal complied with is obligations of procedural fairness. 

2. There was no evidence to support the assertion that the applicant was not given the opportunity to make comments, give evidence and put on submissions at the hearing. The Tribunal’s reasons reflect an orthodox approach to the determination of the review and are consistent with the applicant having a real and meaningful hearing.

3. The adverse findings made by the Tribunal were open on the material before the Tribunal and there is no obligation on the Tribunal to give the applicant a further opportunity to respond to adverse credibility findings.

4. This is a case where the delegate had also made adverse credibility findings in relation to the applicant and rejected all aspects of the applicant’s claims and rejected that the applicant holds a genuine subjective fear of returning to India. No arguable case of jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, it is apparent that the Tribunal correctly identified the applicant’s claims and in particular, his alleged involvement with the BJP and made adverse credibility findings that were open to the Tribunal and dispositive of the applicant’s claims. No jurisdictional error is made out and no arguable case of jurisdictional error is made out by ground 2. 

Ground 3

1. In relation to ground 3, the Tribunal correctly identified the relevant law. There is no relevant provision of the Migration Act in respect of which there is any identified arguable case of non-compliance by the Tribunal. Ground 3 fails to make out any arguable jurisdictional error.

Ground 4

1. Ground 4 reflects a disagreement with the adverse findings by the Tribunal and in substance invites this court to engage in an impermissible merits review. Ground 4 fails to identify any arguable jurisdictional error. 

Ground 5

1. In relation to ground 5, the Tribunal correctly identified the applicant’s claims. It was for the applicant to make out the criteria under the Migration Act. This is not a case where there has been identified any easily ascertainable information of a critical kind to enliven any duty upon the Tribunal to make inquiry. Ground 5 in substance, reflects the disagreement or the adverse findings by the Tribunal and does not identify any arguable jurisdictional error.

Paragraph 1 of the applicant’s submissions

1. Paragraph 1 of the applicant’s written submissions does not identify any actual illogicality or unreasonableness in the adverse findings by the Tribunal. The weight to be given to the evidence was a matter for the Tribunal. The applicant’s claims concerning his involvement with the BJP and concerns in relation to the opposition party were matters the subject of dispositive findings by the Tribunal. Paragraph 1 of the applicant’s written submissions fails to identify any arguable case of jurisdictional error. 

Paragraph 2 of the applicant’s submissions

1. In relation to paragraph 2 of the applicant’s written submissions, no information is identified that would enliven any obligation under s.424A of the Migration Act. Ground 2 fails to make out any arguable jurisdictional error.

Paragraph 3 of the applicant’s submissions

1. In relation to paragraph 3 of the applicant’s written submissions, the Tribunal correctly identified the relevant law. There is no basis on the material before the Court to find that the Tribunal misconstrued or misapplied the relevant legislative provisions. Paragraph 3 of the applicant’s written submissions fails to identify any arguable jurisdictional error. 

Paragraph 4 of the applicant’s submissions

1. In relation to paragraph 4 of the applicant’s written submissions, the general assertion of jurisdictional error and the general assertion of denial of procedural fairness do not make out any arguable case in support of either ground. Nor does the assertion of a failure to investigate the applicant’s claims make out any arguable jurisdictional error.

2. Further, on the face of the Tribunal’s decision, the Tribunal correctly identified the relevant test in respect of the criteria under the Refugee Convention and the criteria under complementary protection. There is no substance in the assertion that the Tribunal failed to correctly apply the real chance test. 

Conclusion

1. No arguable case of jurisdictional error is disclosed by the applicant’s written submissions or the application. I am satisfied that this is an appropriate case in which to exercise the Court’s powers under r.44.12 of the Federal Circuit Court Rules 2001.

2. Accordingly, the application is dismissed under r.44.12 of the Federal Circuit Court Rules2001.

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

Date: 3 August 2017