SZVTB v Minister for Immigration

[2016] FCCA 2421

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVTB v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2421

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) Visa – whether the Tribunal denied procedural fairness – whether the Tribunal considered irrelevant material– no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476, 477.

Applicant: SZVTB

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3312 of 2014

Judgment of: Judge Street

Hearing date: 16 September 2016

Date of Last Submission: 16 September 2016

Delivered at: Sydney

Delivered on: 16 September 2016

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr A Keevers
Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant to pay the first respondent’s costs, fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3312 of 2014

SZVTB

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 Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 6 May 2014 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa. 

2. The applicant was found to be a citizen of India and his claims were assessed against that country.  The applicant arrived in Australia on 20 July 2012 holding a Business Short Stay (subclass UC 456) visa which ceased on 20 October 2012. 

3. On 16 July 2012, the applicant lodged a Maritime Crew - Crew Member (subclass ZM 988) visa which was granted on 17 July 2012.  The applicant did not apply for protection until 12 October 2012 and was granted an associated bridging visa WA-010. The applicant claimed to fear harm from his former girlfriend’s family and friends on the basis that she committed suicide and the applicant. The applicant also feared that he was going to be pursued by Hindus and Muslims. 

The Delegate’s Decision

1. The delegate found that the applicant had not provided a truthful account of his relationship with his girlfriend.  The delegate was not satisfied the applicant has a real chance of persecuted for a Refugees Convention reason and found the applicant’s fear of persecution as defined in the Refugees Convention was not well-founded.

2. The delegate was not satisfied that Australia had protection obligations to the applicant because there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India, that there is a real risk the applicant will suffer significant harm. Following the delegate’s decision delivered on 21 November 2012, the applicant applied for review on 19 December 2012. 

The Tribunal’s Decision

1. The applicant was invited by the Tribunal on 17 July 2013 to attend a hearing on 19 September 2013. The applicant appeared on that date to give evidence and present arguments and was assisted by an interpreter.  There is no entry in the hearing record in relation to an opportunity to put on further information or response.  A number of documents were handed up to the Tribunal and photocopied on 19 September 2013. The Tribunal identified the relevant law and set out the applicant’s claims for protection and evidence.  The Tribunal did not accept that the applicant’s claims for protection were true and provided detailed reasons in support of that adverse finding.

2. In relation to a document that purported to be a record of a suicide attempt, the Tribunal made reference to the fact that fraudulent documents are easily obtained in India and provided reasons in support of the finding that the hospital document was not genuine. Those reasons included that the Tribunal found it implausible that the applicant would be able to obtain the document in such circumstances where the applicant had alleged his girlfriend’s family were intent upon killing him.  The Tribunal did not accept the applicant to be a credible witness. 

3. The Tribunal did not accept the applicant was forced into an exchange marriage;  that he had a Hindu girlfriend from 2008 who attempted suicide after he was forced into that marriage;  that her family blamed him, tried to attack him and planned to kill him;  that a group of Hindu people came to his house that night, broke a window, set fire to the house, attacked and seriously injured his father who thereafter took to his bed;  that his sister’s marriage did not take place;  that he fled to a nearby district until he returned to Dubai;  that consequently there was communal violence between Hindus and Muslims in his village;  and that the news spread amongst Malays in Dubai and he became a criminal in their site;  that he was abused for causing a problem for his family in his community and that he had to flee;  that Hindu people were waiting to suck his blood and Muslim people blame him for creating a bad impact on the community and religion and putting his sister in hell.

4. The Tribunal did not accept that the applicant’s co-workers in Dubai, all being Muslims, convinced his employer to file a complaint against him for cheating the company and his friends by borrowing money and vanishing. The Tribunal also did not accept that the applicant’s co-workers in Dubai registered a complaint against him in India for cheating them and vanishing and that such news had spread in the state and that two religious groups and police are hunting him. The Tribunal did not accept the applicant’s claim that he was forced into an arranged marriage by his parents which did not occur because of his girlfriend’s suicide attempt and his consequential flight and that his family, including his brothers, are against him for that reason.

5. The Tribunal did not accept that the applicant borrowed money from various colleagues and took cash from the company as alleged in particular letters. The Tribunal did not accept the applicant’s claims as to steps that may be taken against him in respect of those moneys.  The Tribunal did not accept that the applicant will face harm by reason of the allegations in relation to those monies. The Tribunal was not satisfied that there is a real chance the applicant will suffer serious harm in the reasonably foreseeable future if the applicant returns to India for a Refugees Convention reason.

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

Proceedings Before this Court

1. An application for relief in this court was filed on 27 November 2014. On 19 August 2015, a Judge of this Court made orders extending time under s.477 of the Act. The applicant was given an opportunity to file affidavit evidence, an amended application and submissions. No such documents were filed.

2. The grounds of the application are as follows:-

   1. 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.

   2. The Tribunal members ignored my religious and relationship background that put my life in risk. In doing so the Tribunal may be said to have ignored relevant material, relied in part on irrelevant material/or made findings which were erroneous or mistaken.

   4.  The Tribunal member ignored its undertaking to give me an opportunity to make written submission about the inconsistence in my evidence; therefore the Tribunal had erred by denying me procedural fairness in respect of those matters.

   (Errors and emphasis are in the original)

3. At the commencement of the hearing the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be 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 Tribunal’s decision was unlawful or whether the Tribunal’s decision was unfair.

4. The Court explained that if the Court was satisfied that the Tribunal’s decision was affected by relevant legal error, the Tribunal’s decision would be set aside and the matter would be sent back for further hearing. The Court explained that if the Court was not satisfied that the Tribunal’s decision was affected by relevant legal error, the application would be dismissed. The applicant confirmed that he understood what had been said by the Court. The Court explained that it would identify the evidence, then hear submissions from the applicant, then hear submissions from the solicitor 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.

5. The applicant sought to maintain that the documents he provided were genuine and took issue with the Tribunal’s rejection of his credit.  The Court explained that this Court does not have power to revisit the merits of the matter.  Nothing said by the applicant from the bar table identified any jurisdictional error. 

6. Ground 1 refers to the proposition that the Tribunal failed to actively engage in a deliberation about the documents advanced by the applicant and erred in placing no weight on the documents. This appears to be a reference to the Leo Hospital suicide attempt document that it is apparent the Tribunal deliberated upon and made adverse findings that were open on the material before the Tribunal.  Those adverse findings cannot be said to lack an evident and intelligible justification.  There is no substance in the proposition that the Tribunal failed to actively engage in an intellectual process of evaluating whether the Leo Hospital document was genuine.

7. It was open to the Tribunal to take into account the applicant’s credit and the adverse findings in that regard in making the adverse finding in respect of that document.  There was no obligation upon the Tribunal to first assess the document before assessing the applicant’s credit.  From the bar table the applicant suggested that the Tribunal could have made inquiries as to whether the document was genuine.  The genuineness of the document was not readily ascertainable information so as to enliven any obligation or duty to inquire on the Tribunal. No jurisdictional error is made out by Ground 1 of the application. 

8. In relation to Ground 2, it is apparent that the Tribunal took into account the whole of the applicant’s claims, including his fears in relation to Muslims and Hindus, and made adverse credit findings that were open on the material before the Tribunal. Those adverse credit findings in respect of the applicant’s claims, cannot be said to lack and evident and intelligible justification. There is no substance in Ground 2 and no jurisdictional error is made out in that regard. 

9. In relation to Ground 3, there is no material before the Court to support the existence of any undertaking to give the applicant an opportunity to put on further material. Such a proposition is inconsistent with the record of the hearing and no other evidence has been put on by the applicant.  Further, it is apparent that from the date of the hearing on 19 September 2013 the applicant had a substantial period up until delivery of the Tribunal’s decisions on 6 May 2014 to put on further material.  The Tribunal was not required to raise with the applicant credibility issues in respect of inconsistencies in the applicant’s evidence. Ground 3 fails to make out any jurisdictional error. 

10. In these circumstances, the application is dismissed. 

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 14 October 2016