SZVSD v Minister for Immigration

[2016] FCCA 1063

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVSD v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1063

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal exceeded its jurisdiction – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 426A, 476

Cases cited:
AZAFB v The Minister for Immigration [2015] FCA 1383

Applicant: SZVSD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3265 of 2014

Judgment of: Judge Street

Hearing date: 5 May 2016

Date of Last Submission: 5 May 2016

Delivered at: Sydney

Delivered on: 5 May 2016

REPRESENTATION

The applicant appeared in person

Counsel for the First Respondent: Mr P Knowles

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The name of the second respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.

2. The amended application is dismissed.

3. The applicant pay the costs of the first respondent fixed in the amount of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3265 of 2014

SZVSD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth), in respect of a decision of the Tribunal made on 28 October 2014, affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa. The applicant was found to be a citizen of Ukraine and his claims were assessed against that country.

2. The applicant arrived in Australia on 14 July 2008 as the holder of a visitor visa subclass TR-676.  That visa ceased on 14 October 2008.  The applicant applied for a carer residence (Class VU-836) visa on 23 September 2008, and then withdrew this application on 15 November 2012.  The applicant applied for a tourist visa subclass TR-676 on 4 December 2012, which was refused by a delegate on 6 December 2012, and that decision of the delegate was affirmed by a Tribunal on 17 June 2013.

3. On 16 July 2013 the applicant applied for protection.  The applicant claimed that before he came to Australia he co-owned a landscape company.  The applicant claimed that business was doing well, but militia decided to start extorting money from that business.  The applicant alleges that he did not want to give them money and that everything that he was doing was according to law.  The applicant alleges the militia started sending inspections and simply demanding money.  The applicant said he was on a business trip when the militia pressed his partner and he gave up and gave them what they demanded.  The applicant said he got angry and when he came back next month, he refused to pay. The applicant contended that despite them being militia officers, he knew channels where he could seek justice. 

4. On the same evening, the applicant alleged that he was beaten and nearly killed.  The applicant says that was repeated the following week.  The applicant says the militia came again with a money demand and that again the applicant refused.  The applicant says that his partner wanted to leave the business because he was scared.  And the applicant identified that he needed some time to buy out his partner.  The applicant says that the militia came back again, and again he refused to pay. 

5. The applicant says that instead of paying the militia, he wrote to the city prosecutor and complained.  The applicant says he secretly taped the demands of the militia and sent the USB, along with his complaint, to the prosecutor.  The applicant says two days later the militia came to his place and beat him again.  The militia told the applicant he had to write a withdrawal letter saying that he had lied about the extortion, otherwise they would kill him.  The applicant said he would write it, as he was really scared, and he decided to go overseas for some time.  The applicant thought he would sell his business and give them the money and start a new business somewhere else.

6. The applicant applied for a visa to Australia, where he had a relative.  But before he left, the applicant says the militia beat him again and said if he did not pay and did not withdraw the letter immediately, they would kill him.  The applicant sold the business and the applicant alleges he paid the militia, but when he was in the safety of Australia, he wrote to the prosecutor and explained everything.  The applicant said he thought he would stay in Australia forever, as his relative needed care, but that did not happen and now the applicant is scared to go back, because apparently the militia are still looking for him.

7. The applicant failed to appear at the interview before the delegate, and the delegate found that he was not satisfied the applicant had a real chance of being persecuted for a refugee convention, and was not satisfied the applicant’s fear was well-founded.  The delegate was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country that there is a real risk that the applicant would be subject to significant harm.

8. The applicant applied for review of the decision of the delegate on 2 January 2014.  Orders were made on 12 February 2015 providing the applicant with an opportunity to file an amended application, affidavit evidence, and put on submissions.  The applicant filed an amended application on 22 July 2015, but did not file any other affidavit evidence or submissions.  The amended application identifies the following ground:

   1. The Applicant seek relief on the grounds that the Tribunal exceeded jurisdiction in making the decision to affirm the Respondent’s decision to refuse to grant the Applicant a protection visa.

   Particulars

   (a) In relation to the Applicant’s claims regarding the events that took place in late 1999:

   (i)The Tribunal failed to make any findings on Applicant’s claim to have been persecuted by Ukrainian militia in 2008 on the ground of his political opinion which took form of his taping corrupted officials’ demands and sending them to a security services of Ukraine.

   (ii) The Tribunal failed to make any findings on Applicant’s claim that in 2008 he was physically assaulted and threatened by the security forces and militia in Ukraine in connection with his perceived political opinion.

9. At the commencement of the hearing the Court explained to the applicant that the hearing was to determine whether the Tribunal’s decision was affected by a relevant legal error.  The Court explained to the applicant that the legal error had to be of a kind in which either the Tribunal’s decision exceeded its statutory powers, or that the Tribunal had denied the applicant procedural fairness.  The Court explained it proposed to identify the evidence and then hear submissions from the applicant, and then submissions from the counsel for the first respondent, and then hear submissions from the applicant in reply.  The applicant confirmed that he understood the nature of the hearing as explained by the Court.

10. In relation to the applicant’s claim that the Tribunal exceeded its jurisdiction, particular (a) refers to events that took place in 1999.  There is no reference in the material before the Tribunal to an event in 1999.  An event in 1999 that was not raised before the Tribunal and not apparent on the material before the Tribunal is not capable as giving rise to any jurisdictional error. 

11. In relation to the claims that the applicant did make, as identified in the applicant’s application for protection, it is clear that the Tribunal identified those claims in the commencement of its reasons in para.1 and found it was not satisfied in relation to the allegations advanced by the applicant in respect of those claims concerning the militia and the extortion of money. 

12. Insofar as the applicant’s claims refer to being persecuted by the militia, that claim was addressed by the Tribunal, including the assertion that he had provided information to the prosecutor.  The Tribunal found it was not satisfied that the claims advanced by the applicant were made out in circumstances where the applicant failed to appear before the Tribunal.

13. The application for review lodged by the applicant identified a contact address and did not set out in the application the telephone number.  I accept that there was a mobile number identified in the applicant’s original application for protection.  The Tribunal wrote to the applicant on 20 May 2014 at the applicant’s residential address, inviting the applicant to attend a hearing on 25 September 2014, and the applicant in response completed a response to hearing invitation on 7 June 2014. 

14. However, on 23 September 2014, two days before the hearing was to take place, the applicant wrote to the Tribunal and requested a postponement of the hearing, in support of which the applicant annexed a medical certificate.  The Tribunal agreed to adjourn the matter, and on 26 September 2014 invited the applicant to attend at a hearing on 24 October 2014 to give evidence and present arguments.  That letter was sent to the applicant’s correct address.  The applicant in the course of identifying the court book confirmed that he received that letter.  The applicant explained candidly that due to a relationship his attention was distracted, and that was the real reason why he did not attend.

15. The letter, dated 26 September 2014, inviting the applicant to attend the hearing was in accordance with the statutory regime.  Although the applicant’s candour in relation to the circumstances in which he failed to attend are to be commended, it does not identify any unreasonableness in the decision of the Tribunal to proceed to determine the application in the absence of the applicant. 

16. In relation to ground 1(a)(i) the Tribunal did make findings in relation to the applicant’s claims and found that it was not satisfied on the evidence before it that the criteria under s.36(2)(a) or s.36(2)(aa) was made out. Those findings were open on the material before the Tribunal. The reasons given the decision of the Tribunal to proceed with the determination of the application under s.426A was reasonable and cannot be said to lack an evident and intelligible justification.

17. I accept the first respondent’s submissions that the decision in AZAFB v The Minister for Immigration [2015] FCA 1383 it is distinguishable in the circumstances of the present case where it is clear the applicant did receive the letter and in circumstances where the application did not of itself identify any mobile telephone number and where the applicant had earlier contacted the Tribunal and obtained an adjournment and in circumstances where there was no further engagement by the applicant with the Tribunal following the letter of 26 September 2014.

18. In relation to the second particular, again the Tribunal was not satisfied on the material before the Tribunal as to the applicant being beaten by the militia as alleged.  That adverse finding was open to the Tribunal on the material before it.  There was no material before the Tribunal identifying that the applicant had a perceived political opinion and no such claim arises on the material before the Tribunal.  The amended application fails to make out any jurisdictional error.  Nothing said by the applicant from the bar table identified any basis upon which there could be said to be jurisdictional error in the decision of the Tribunal.  The amended application is dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  17 May 2016