SZVSW v Minister for Immigration
[2017] FCCA 2095
•6 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVSW & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2095 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed to consider the applicant’s claims, failed to consider all the evidence and erred in the exercise of its discretion whether to call a particular witness. |
| Legislation: Tribunals Amalgamation Act 2015, item 15AG of sch.9 Migration Act 1958, ss.36, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SZQQY v Minister for Immigration & Citizenship [2012] FMCA 549 House v R (1936) 55 CLR 499 |
| First Applicant: | SZVSW |
| Second Applicant: | SZVSX |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3306 of 2014 |
| Judgment of: | Judge Cameron |
| Hearing date: | 16 August 2017 |
| Date of Last Submission: | 16 August 2017 |
| Delivered at: | Sydney |
| Delivered on: | 6 September 2017 |
REPRESENTATION
The First Applicant appeared in person
| Solicitors for the Respondents: | Mr L. Leerdam of DLA Piper |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3306 of 2014
| SZVSW |
First Applicant
| SZVSX |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The applicants are husband and wife and citizens of Mauritius. The first applicant arrived in Australia on 29 July 2008. On 2 April 2013 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection (“Department”), alleging that he feared persecution in Mauritius because of his relationship with his wife. The second applicant was included in that application as a member of the family unit and she also made her own specific claims. On 31 January 2014 the applicants’ application was refused by a delegate of the first respondent (“Minister”). The applicants then applied to the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. They were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.
In these judicial review proceedings the Court cannot rehear the applicants’ application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
BACKGROUND FACTS
Applicants’ immigration history
Relevant aspects of the applicants’ immigration history are summarised below:
Date
Event
29.07.08
First applicant arrives in Australia on a Class TU 572 visa granted 30 May 2008.
05.08.08
Second applicant arrives in Australia holding a Class TU 572 student visa granted 15.07.08.
14.04.09
The first applicant departs Australia to travel to Mauritius.
21.04.09
The second applicant departs Australia to travel to Mauritius.
15.05.09
The applicants return to Australia.
16.06.10
First applicant’s Class TU visa is cancelled after education provider certified he had failed to maintain satisfactory course progress.
23.06.10
First applicant lodges application to Migration Review Tribunal for review of decision to cancel Class TU visa.
13.09.10
Second applicant’s Class TU visa expires and she remains in Australia unlawfully.
23.09.10
Migration Review Tribunal affirms decision concerning cancellation of first applicant’s student visa.
05.10.10
First applicant remains in Australia unlawfully.
02.04.13
Applicants lodge application for protection visas.
Applicants’ claims for protection
The applicants’ claims were made in statements attached to their protection visa applications and bridging visa applications and at a hearing before the Tribunal on 2 October 2014. The Tribunal’s recitation of the facts was very lengthy but it provided a useful encapsulation of those matters in para.226 of its reasons which said:
The applicants claim that the first named applicant belongs to a lower caste and the second named applicant belongs to a higher caste. They claim to have commenced a relationship in December 2008, started living together as a de facto couple in July 2009 and were married in March 2010. They claim that the first named applicant travelled to Mauritius in April 2009 to seek the support of the second named applicant's family for them to marry. They claim that the first named applicant was badly treated by the family of the second named applicant, beaten, threatened with death, his family and property damaged and his family threatened and harassed. They claim that when the second named applicant returned to Mauritius one week after the first named applicant, she was held against her will in the family home, her passport and mobile phone were confiscated, she was not allowed to leave the home or see the first named applicant and she was beaten, tortured and threatened. They claim that the second named applicant escaped from the house on 14 May 2009 with the assistance of her younger sister, including the recovery of her confiscated passport, went to the airport, followed to the airport by family members but they could not get to her because she was in a secure area of the airport and left the country. They claim that the first named applicant’s family has continued to be harassed and threatened. They claim that only the second named applicant’s younger sister knows about their marriage. They claim that the second named applicant’s uncle is a member of the management committee of a Hindu religious organisation, his [sic] close links to another Hindu organisation, and is a powerful figure within the Hindu community who can harm the applicants. They claim that the second named applicant’s uncle has, in the past, bribed the police and that the police in Mauritius is [sic] corrupt and cannot protect them. The first named applicant claims he will be subject to serious harm and significant harm by higher caste groups or individuals because of his status as a member of a lower caste. They claim that if they returned to Mauritius, the second named applicant will be forced to divorce and marry a man against her will and this man will treat her badly because of her history of residence in Australia with the first named applicant and the circumstances of their relationship. The first named applicant will suffer serious harm and significant harm from his family having married someone from a higher caste. They also claimed to fear torture and death because of their inter-caste marriage and age difference in that the first named applicant is five years younger than the second named applicant and they were living together without being married in a religious ceremony or anyone’s knowledge, which is claimed to be culturally unacceptable.
The Tribunal’s decision and reasons
After discussing the claims made by the applicants and the evidence before it, the Tribunal found that it was not satisfied that the applicants were persons to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”), or s.36(2)(aa) of the Act. The Minister’s written submissions summarised the Tribunal’s findings and reasons in the following terms which I adopt:
8The Tribunal accepted that the applicants were in a genuine spousal relationship, they were married on 15 March 2010, they belonged to different Hindu castes and that the second named applicant was five years older than the first named applicant. However, on the basis that the Tribunal found the applicants had fabricated their claims for protection and were not credible witnesses, it did not accept the account of events when they returned to Mauritius in 2009 and subsequent events upon their return to Australia.
8.1The Tribunal noted that it could not find any credible reports of specific instances of serious or significant harm due to inter-caste or inter-ethnic marriages. The Tribunal gave little weight to the documentary information provided by the applicants on the basis that they were not from credible sources and referred to the inter-caste system in India.
8.2The Tribunal gave no weight to the two letters which were claimed to have been written by the second named applicant's sister, on the basis that it found they had been fabricated to enhance the applicants' visa application.
8.3The Tribunal found that, by providing further significant claims during the merits review process, was [sic] indicative of the applicants developing and tailoring their applications for protection. The Tribunal also found that the applicants' delay of over three years and ten months was not commensurate with a fear of persecutory harm.
9.Consequently, the Tribunal was not satisfied that the applicants had a well-founded fear of persecution for any Convention reason if returned to Mauritius now, or in the reasonably foreseeable future. The Tribunal accepted that the applicants may face some level of social disapproval, however, it did not accept that this amounted to significant harm. Ultimately, the Tribunal did not accept that, if returned to Mauritius, that there was a real risk that the applicants would suffer significant harm now, or in the reasonably foreseeable future.
(references omitted)
PROCEEDINGS IN THIS COURT
In their application commencing these proceedings the applicants alleged:
1.The Second Respondent committed jurisdictional error by failing to address the applicant’s claim in the way it was made:
(a) I stated in my protection visa application that I was born in a lower caste Hindu family also known as untouchable.
(b)I met my wife in Sydney who is from a higher caste Brahmin family and this drew lot of criticism in my community. I received death threats from her family and higher caste people when I went to Mauritius to get permission from her parents to get married.
(c)We were married on 15 March 2010 without their consent and the community leader has declared my punishment to be death.
(d)I have witnessed upper caste people have perpetuated atrocious human rights violations on lower caste members who were involved like me.
2.The Tribunal constructively failed to exercise its jurisdiction;
Particulars
I provided documents to the Tribunal to corroborate my claim. The Tribunal failed to engage in an active intellectual process of these documents. The Tribunal ultimately gave the documents no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the documents without engaging to the contents of these documents. It was an error for the Tribunal to assess the applicant’s credit without first assessing whether the substance of the documents corroborated my claim.
In his address to the Court the first applicant also submitted that:
a)the Tribunal had not considered all the evidence before it;
b)had failed to call his wife’s sister to give evidence; and
c)had not believed him.
Despite the Tribunal’s lengthy reasons, and without intending any disrespect to the applicants, the allegations made in this matter are not complicated and do not need lengthy analysis.
Ground 1
It is apparent that the first ground of the applicant concerns allegations made by the first applicant. I agree with and adopt the Minister’s submissions in relation to this ground:
… the Tribunal did not fail to address the claims put by the applicants. Contrary to the applicants' pleadings, the Tribunal clearly understood, and addressed, each of the matters claimed by the applicants.
13.1The particulars to ground one set out … verbatim the claims made by the first named applicant in his protection visa application.
13.2These claims were set out by the Tribunal at [12]-[25] of the decision record. At [42]-[58] the Tribunal set out the details of the applicant's claims as provided in his additional statement to the delegate. The first named applicant's claims were also repeated at [226] under the heading 'findings and reasons'.
Ground 2
Based on the applicants’ address to the Court, it appears that the documents to which the second ground of the application referred were two letters ostensibly signed by the second applicant’s sister which purported to recount aspects of her family’s reaction to her relationship with the first applicant and related matters. Contrary to the assertion made in the particulars of this allegation, the decision to give the letters no weight did not arise out of the Tribunal’s opinion of the applicants’ credibility but out of matters particular to the documents themselves. As the Tribunal said in para.233 of its reasons:
[An inconsistency between the letters] and [the applicants’] failure to make significant claims at an earlier opportunity leads the Tribunal to find that these letters have been fabricated to enhance the visa application and gives them no weight.
To the extent that the applicants may have also wished to refer to other documents, I note that the second ground of the application appears to be a formulaic allegation given that it has been advanced in at least one previous case: see SZQQY v Minister for Immigration & Citizenship [2012] FMCA 549. Significantly, the application did not identify which of the few documents the applicants supplied to the Tribunal, as distinct from the Department, were said to have been given inadequate consideration. The allegation has not been adequately particularised and the Court should not speculate upon the issues which the applicants might have been seeking to ventilate, nor embark on an analysis of every document which might fall within the class “documents provided to the Tribunal to corroborate the applicants’ claims”.
In the circumstances, it is sufficient to say that the second ground of the application has not been made out for the reasons given above at [11].
The Tribunal did not consider all the evidence before it
This submission concerned the two letters referred to earlier. Contrary to the applicant’s contention, the Tribunal did consider those letters, and in some detail, in paras.231-233 of its reasons.
The Tribunal failed to call the second applicant’s sister to give evidence
The Tribunal was under no obligation to call the second applicant’s sister as a witness. However, given that the applicants had requested that it call her, it was required to consider doing so and to exercise its discretion whether to do so in accordance with law. The Tribunal’s consideration of and decision on the applicants’ request was set out in para.171 of its reasons. It plainly gave the issue real consideration and there is no reason apparent from that discussion to conclude that its discretion miscarried having regard to the test in House v R (1936) 55 CLR 499.
The Tribunal had not believed the first applicant
This submission invited the Court to review the Tribunal’s factual conclusion that the first applicant was not a witness of truth but the applicants pointed to no matter not already considered in these reasons which might have suggested that that conclusion was affected by legal error or that the ultimate decision was affected by jurisdictional error.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 6 September 2017
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