SZVUG v Minister for Immigration & Border Protection

[2015] FCCA 1857

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVUG & ANOR v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 1857

Catchwords:
MIGRATION – Refugee Review Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation:
Migration Act 1958 (Cth) s.36
Federal Circuit Court Rules 2001 (Cth) rr.44.12, 44.13

Cases Cited:
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39

First Applicant: SZVUG

Second Applicant: SZVUH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3404 of 2014

Judgment of: Judge Emmett

Hearing date: 3 June 2015

Date of Last Submission: 3 June 2015

Delivered at: Sydney

Delivered on: 3 June 2015

REPRESENTATION

The applicants appeared in person with the assistance of a Gujarati interpreter

Solicitors for the Respondents: Ms Ramya Krishnan
(Australian Government Solicitor)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3404 of 2014

SZVUG

First Applicant

SZVUH

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 8 December 2014, the applicants filed an application seeking judicial review of a decision of the Refugee Review Tribunal dated 12 November 2014 (“the RRT”). The second applicant’s claims are wholly dependent on those of the first applicant. These reasons will therefore refer to the first applicant as “the Applicant”.

2. On 5 March 2015, the Applicant attended a directions hearing before a Registrar of this Court. The Applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit by 27 May 2015. The Applicant was also directed to file and serve written submissions in support of the grounds of the application by 27 May 2015.

3. At the directions hearing, the Applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.

4. The matter was listed for today for a hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth), a copy of which was given to the Applicant.

5. Rule 44.12 of the Rules provides as follows:

   “(1) At a hearing of an application for an order to show cause, the Court may:

   (a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

   (b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

   (2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”

6. Relevantly, r.44.13 provides:

   “(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”

7. The Applicant was unrepresented before the Court this morning, although had the assistance of a Gujarati interpreter.

8. The Applicant confirmed to the Court this morning that he had not filed any further documents, either in accordance with the directions or otherwise.

9. The Applicant’s application for judicial review, filed on 8 December 2014, stated the grounds of review as follows:

   “1. The Second Respondent committed jurisdictional error by failing to address the applicant's claim in the way it was made;

   a. The applicant stated in his protection visa that he was an active member of Congress Party

   b. The opposition party BJP member assaulted the applicant and his family and threatened to kill him because of his opposition against BJP's illegal activities.

   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 applicants 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 dated on 12 November 2014 was a judicial error.”

10. The solicitor for the first respondent tendered a copy of the RRT’s decision, which was marked exhibit 1R. The background of this matter and the RRT’s decision are accurately summarised by the first respondent in their written submissions as follows:

    “Background

    3. The applicants are husband and wife. They are citizens of India: Court Book (CB) 13, 28. From March 2010 until 30 December 2013, they resided in New Zealand. In 2011, they returned to India for 1.5 months. On 30 December 2013, they arrived in Australia on Visitor (FA-600) visas. Their 2 children remain in India: CB 48.

    4. The applicants applied for protection visas on 24 February 2014: CB 1-40. In short, the applicant husband claimed that he would be persecuted in India by members of the Bharatiya Janata Party (BJP) because of his political opinion. His father was a local Congress party leader. He claimed that he was a local businessman, the secretary of the local small business association and a director of a bank. He said that he and other business owners had been asked to pay illegal donations to the BJP. He raised this issue with the local BJP Member of the Legislative Assembly (BJP MLA). When he received no response, he engaged in various political activities in support of the Congress party and against the BJP. As a result, his family had been targeted, harassed and threatened by BJP members. He was forced to resign from his directorship of a bank. He believes that if he were to return to India the government would not protect him: CB 34-36. The applicant wife made no separate claims.

    5. On 16 May 2014, a delegate of the Minister refused to grant the applicants protection visas: CB 47-56. On 10 June 2014, the applicants applied to the Tribunal for review of the delegate’s decision: CB 57-62. On 7 November 2014, the applicant husband appeared before the Tribunal. The applicant wife was also invited but did not attend the hearing: CB 65-66, 68-71.

    Tribunal’s Decision

    6. On 12 November 2014, the Tribunal affirmed the delegate’s decision: CB 73-86.

    7. The Tribunal found that there were several significant discrepancies and inconsistencies between the evidence of the applicant husband at the hearing and his written statement to the Department as follows:

    7.1 in his written statement, his claims revolved around his active support of the Congress party and his refusal to pay donations to the BJP as a business owner. He claimed that he raised the issue of illegal donation requests with his local BJP MLA and, when he did not receive a response, organised a rally attended by most businessmen to condemn the BJP’s activities: CB 83-84 [72]. However, before the Tribunal he claimed that he had not engaged in any activities to oppose the BJP’s practice of requesting illegal donations apart from speaking against the practice at a meeting of his local small business association: CB 84 [73]

    7.2 he gave inconsistent evidence as to when and how many times he was assaulted in his shop by BJP supporters: CB 84 [74]

    7.3 he gave inconsistent evidence regarding an incident at his home in 2009. In his written statement he stated that BJP supporters assaulted him, his wife and his father, and he gave them money and gold. In contrast, at the hearing he claimed that they only assaulted his father, as his father was the only person at home apart from his sister in law: CB 84 [75]

    7.4 he failed to mention that his son had been kidnapped by the BJP in his written statement: CB 84 [78]. This claim was raised for the first time at the hearing.

    8. The Tribunal considered that the applicant husband could not adequately explain these inconsistencies when they were put to him at the hearing: CB 84 [77]-[78].

    9. The Tribunal also expressed concern about the applicants’ travel and immigration history, the plausibility of the applicant husband’s claims, and the vagueness of his reasons for supporting the Congress party: CB 84-85 [79]-[80] & [82]. With respect to the applicant’s travel and immigration history, the Tribunal noted that the applicants’ failure to take steps to inquire about seeking protection in New Zealand during their 3.5 years of residence in that country undermined the genuineness of their claims: CB 84 [79].

    10. Accordingly, the Tribunal found that the applicant husband was not a credible witness. While it accepted that he was a small business owner, a director of a bank, and possibly a secretary of his local small business association, it was not prepared to accept the remainder of his claims: CB 85-86 [82]-[84]. On this basis, it was not satisfied that the applicants fulfilled either the refugee or complementary protection criterion: CB 86 [85]-[87].”

11. The grounds of the Applicant’s application were interpreted for the applicant and he was invited to say whatever he wished in support of those grounds. The applicant had nothing further to say in support of the grounds.

    Ground 1

12. The Applicant complains that the RRT did not address his claim that he was an active member of the Congress Party, or that a member of the opposition BJP assaulted him and his family, and threatened to kill him because of his opposition to BJP activities.

13. A fair reading of the RRT decision record does not support the Applicant’s assertions in ground 1. The RRT’s decision record makes clear that the RRT explored the Applicant’s claims with him in some detail at the hearing and put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses.

14. In particular, the RRT considered the Applicant’s claims to have been an active member of the Congress Party, who had opposed a number of illegal BJP activities, and that he and his family had been assaulted and threatened as a result. The RRT considered those claims and made findings in respect of them in paragraphs 72 to 75, as follows:

    “72. The applicant husband's claims revolve around his active support for the Congress Party and his refusal to pay donations to the BJP as a business owner. In his statement, the applicant husband claimed that after he was elected secretary of his local business association in 2009, he raised the issue of illegal donation requests to businesses by the BJP with his local BJP MLA, Katibhai Patel. He further wrote that upon getting no response from the MLA, he organised a rally attended by most businessmen to condemn the BJP's activities.

    73. This is at odds with his evidence to the Tribunal at his hearing, when he stated that his political activities only revolved around campaigning for the Congress party during the 2007 state and 2009 national elections. When asked at hearing whether he engaged in any activities to oppose the BJP's practice of demanding donations from businesses, he stated that he did not apart from speaking against it at a meeting of the business association. The applicant husband also did not make any reference to having met or discussed the issue of illegal donations with MLA Patel at his hearing. The Tribunal is of the view that, had he met MLA Patel, the applicant husband would have mentioned it when the Tribunal was asking him to explain what happened to him in India and about his activities opposing the BJP's practices.

    74. The number of times and the period when the applicant husband claims to been assaulted in his shop has also been inconsistent. His written statement refers to the applicant being assaulted in his shop by BJP supporters 'the next day' after the rally he organised. The statement then goes on to refer to a further assault against the applicant in his home in November 2009. However, at his hearing the applicant husband stated that he was assaulted 4-5 times after December 2009.

    75. The applicant husband's evidence regarding the BJP coming to his home differed drastically between his written statement and his hearing. At the hearing, the applicant stated that the BJP came to his home and assaulted his father, who was the only person at home apart from the applicant husband's sister in law. The applicant husband stated that he was not home at the time. According to his hearing evidence, the BJP then left the home. However, the applicant husband's statement states that the BJP assaulted him, his wife and his father when they came and that he gave them money and gold that he had in his home. He further stated that he continued to pay money to the BJP until he left India. He stated that because he ran out of money he, could not bring his children with him.”

15. In short, the RRT found the Applicant’s evidence to be internally inconsistent and vague and ultimately rejected those claims made by the applicant.

16. Those findings would appear to have been open to the RRT on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the RRT (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). A credit finding is sound if it was “open to [the RRT] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility.” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547)

17. It is well-established that the RRT is not required to accept uncritically all claims made by an applicant and does not require rebutting evidence before making that finding (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the RRT have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

    Ground 2

18. The Applicant asserts that the RRT had no jurisdiction to make the decision because its reason or satisfaction was not arrived at.

19. There are no further particulars or oral or written submissions to explain ground 2. In itself, it does not disclose any error that is capable of review by this Court. There is nothing on the face of the RRT’s decision record to suggest that it did otherwise than comply with the relevant statutory scheme in considering whether the Applicant was entitled to protection, both under the Convention criterion in s.36(2)(a) and the complementary criterion in s.36(2)(aa) of the Migration Act 1958 (Cth). The RRT gave comprehensive reasons in support of its conclusion that the applicant is not a person to whom Australia has protection obligations.

20. Those reasons would appear to be open to the RRT on the evidence material before it and for the reasons it gave.

    Ground 3

21. The Applicant’s third ground asserts that the RRT’s decision was unjust and made without taking into account the full gravity of the Applicant’s circumstances and the consequences of the claim.

22. Again, that assertion is not accompanied by particulars or written or oral submissions and by itself does not identify an error capable of review by this Court. The RRT’s decision record makes clear that it identified in detail the Applicant’s claims and explored those claims with him at a hearing, noting exchanges that it had with the Applicant about those claims.

23. There is nothing on the face of the RRT’s decision record to suggest that there was any aspect of the Applicant’s claims that was not considered by the RRT.

24. The Applicant does not identify any particular claim that he made beyond the bare assertion in ground 3 that the RRT did not take into account the full gravity of the applicant’s circumstances and the consequences of his claims. In light of its adverse credibility findings in respect of the Applicant, the RRT did not accept that the Applicant faced a real chance of serious harm for any Convention reason if the applicants were to return to India now or in the reasonably foreseeable future.

25. Further, the RRT was not satisfied that there are substantial grounds for believing that there is a real risk that the applicants will face significant harm as a necessary and foreseeable consequence of returning to India. The findings would appear to be open to the RRT on the evidence and material before it and for the reasons it gave.

    Ground 4

26. The Applicant asserts that the RRT failed to investigate the claim, especially on the grounds of persecution in India. Again, that is a bare assertion, unsupported by particulars, and oral or written submissions.

27. It is well-established that there is no general obligation on the RRT to investigate an applicant’s claims (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ in joint judgment).

28. The duty imposed on the RRT is a duty to review and not to inquire (see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

29. Further, there is no evidence that the RRT in this case failed to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, and nor has any such failure been identified by the Applicant (see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

30. While I make no final decision as to whether or not the RRT’s decision is affected by jurisdictional error, the Applicant has not identified any error on the part of the RRT that is capable of establishing jurisdictional error and none is apparent on the face of the decision record. The RRT referred to the relevant law in affirming the decision under review.

31. In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, in the exercise of the Court’s discretion under r.44.12(1) of the Rules and on the basis that the application does not raise an arguable case, the proceeding before this Court, commenced by way of application on 8 December 2014, should be dismissed with costs.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date: 6 July 2015