SZVVW v Minister for Immigration & Border Protection
[2015] FCCA 933
•13 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVVW v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2015] FCCA 933 |
| Catchwords: 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), ss.36, 424A Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13 |
| Cases cited: Minister for Immigration and Citizenship v Li [2013] HCA 18 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 |
| Applicant: | SZVVW |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3491 of 2014 |
| Judgment of: | Judge Emmett |
| Hearing date: | 13 April 2015 |
| Date of Last Submission: | 13 April 2015 |
| Delivered at: | Sydney |
| Delivered on: | 13 April 2015 |
REPRESENTATION
| The applicant appeared in person with the assistance of a Malayalam interpreter. |
| Solicitors for the Respondents: | Mr Matthew Alderton (Mills Oakley) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3491 of 2014
| SZVVW |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
On 17 December 2014, the applicant filed an application seeking judicial review of a decision of the Refugee Review Tribunal dated 14 November 2014 and handed down on 17 November 2014 (“the RRT”).
On 12 March 2015, the applicant attended a directions hearing before a Registrar of this Court. At the directions hearing, the applicant was provided with a copy of the applicable costs schedule of the Court. The applicant confirmed that he wished to continue with the application for judicial review of the RRT’s decision. 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 6 April 2015. The applicant was also directed to file and serve written submissions in support of the grounds of his application by 6 April 2015. 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.
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.
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.”
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.”
The background, the applicant’s claims and the RRT decision are accurately summarised in submissions of the first respondent, filed 2 April 2015, as follows:
“Background and the applicant’s claims
The applicant is a citizen of India who applied for a Protection (Class XA) visa on 25 November 2013: CB 1-26. In a typed one page written statement attached to the application, the applicant claimed that he was a Muslim who lived in a Hindu region dominated by religious and political conflict between the Rashtriya Swayamsevak Sangh (RSS) and the People’s Democratic Party (PDP). He also claimed that he and his wife were targeted by fundamentalist groups because they were active members of the Communist Party of India (Marxist)(CPI(M)): CB 27. Also attached to the visa application were copies of pages from the applicant’s passport: CB 28-30.
On 22 January 2014, the applicant provided a further typed written statement that expanded upon his protection claims: CB 40-41. He claimed that members of the RSS opposed the work of the CPI(M) and attacks and violent clashes occurred. He also claimed that when his wife campaigned as a member of the CPI(M) party in local governing body elections she was run down by a car driven by RSS members and had her ankle broken. The applicant was later subjected to constant threats after his wife won the election and became the Welfare Standing Committee Chairperson of Kazhakkkoottam Block Panchayat. The applicant and his wife travelled to England in 2004 and returned in 2009: CB 15. The applicant claimed he was attacked, stabbed and had his arm broken by four RSS members in 2010 and that in 2012 his family and their family home were subjected to two further attacks.
On 25 February 2014, the applicant was invited to attend an interview with a delegate of the first respondent (CB 42-44), which he attended on 18 March 2014: CB 53-54.
On 21 March 2014, the delegate refused to grant the applicant a Protection visa: CB 49-62. After assessing the credibility of the applicant’s claims and the available independent country information, the delegate was not satisfied that there was a real chance that the applicant would suffer any serious or significant harm if he returned to India.
The Tribunal
On 14 April 2014, the applicant lodged an application for review of the delegate’s decision: CB 63-68. On 12 September 2014, he was validly invited to attend a hearing before the Tribunal on 23 October 2014: CB 71-72. He accepted this invitation (CB 73-74) and appeared before the Tribunal at the scheduled hearing: CB 77-79.
At the Tribunal hearing, the applicant provided copies of medical documents (CB 81-82), media articles relating to incidents in India (CB 83-84), and a certificate and identity card relating to the Kazhakuttom Block Panchayat: CB 85-87. The Tribunal expressly considered these documents in reaching its decision: CB 99, par 10.
On 4 November 2014, the applicant provided the Tribunal with a further media article (CB 89) and copies of his marriage certificate (CB 90), a letter from the State Secretary of Kerala Pravasi Sangham (CB 91) and a First Information Report (English translation only reproduced at CB 92-94). The Tribunal also expressly considered these documents in reaching its decision: CB 103-104, pars 23-24.
On 14 November 2014, the Tribunal affirmed the delegate’s decision not to grant the applicant a Protection visa: CB 97-108. The Tribunal accepted some aspects of the applicant’s claimed history but was concerned by identified inconsistencies between his written and oral evidence. In addition, it found that the applicant changed his oral evidence when questioned about details of incidents, considered some of his claims implausible and retained concerns about his delay in departing India: CB 100, par 13; CB 102, par 20; CB 104, 25.
For example, the Tribunal found the applicant’s oral evidence that he remained living in his wife’s house from 2000 until October 2013 (other than when he and his wife lived in England from 2004 to 2009) was inconsistent with his written statement (at CB 27), which indicated that he “moved to different parts to escape” religious fundamentalists: CB 100, par 14. The Tribunal also found that he changed his oral evidence about how he knew that the four people who allegedly attacked him in March 2010 were connected with the RSS: CB 101-102, par 17). In addition, the Tribunal found it was not plausible that RSS supporters allegedly attacked and seriously injured the applicant in 2010 and confronted his family in 2012 but he remained living in the same house in India from 2000 to 2004 and from 2009 to October 2013: CB 102, par 20.
The Tribunal was also concerned by the applicant’s late provision of documents and the timing of his claim that his wife received threats six days before the Tribunal hearing. On the basis of its credibility concerns and country information about the prevalence of documentary fraud in India, the Tribunal found that the First Information Document he provided was not genuine: CB 103, pars 22-24. It was a matter solely for the Tribunal to identify such material as it finds relevant to its reasoning and to give that material appropriate weight.
For these and other reasons, the Tribunal found that the applicant was not a witness of truth and rejected key aspects of his claims to fear harm in India: CB 104, pars 26, 28. On this basis and after finding that the applicant had “a very low political profile, if any” (CB 104, par 27), the Tribunal did not accept that he was owed protection obligations under either the refugee (CB 104, par 29) or the complementary protection criteria: CB 104-105, pars 30-32.”
On 31 March 2015, the applicant filed an amended application. In that amended application, the applicant stated the grounds of review as follows:
“Ground one
The RRT erred in law, with the error being a jurisdictional error, by failing to consider in full the complementary protection obligations Australia owed to me.
Ground two
The RRT made an error in law, with the error being a jurisdictional error, by not complying with section 424A and 424AA.
Particulars
The Respondent did not raise /or put to me in writing parts of the adverse decision for me to comment in writing.
Ground three
There is jurisdictional error as the RRT should have invited me for a second hearing to comment orally on the adverse information and without giving me the opportunity to invite me for a second hearing involved denial of procedural fairness and legal unreasonableness in my circumstances.
I am willing to listen the RRT audio tapes to find any other legal errors and if I find it I will submit a transcript to this this court before a hearing date.”
The applicant was unrepresented before the Court this morning, although had the assistance of a Malayalam interpreter.
The applicant confirmed to the Court this morning that he now relied on the grounds contained in his amended application, filed on 31 March 2015.
All the grounds appear to arise from the same complaint, which the applicant identified as a failure by the RRT to give him an opportunity to comment on information that it ultimately found to be adverse to him. The applicant asserts that the information should have been given to him in writing for comment and that he should have been invited to a second hearing to comment orally on that adverse information.
The information identified by the applicant was post-hearing material, in particular a document headed “First Information Report”. That First Information Report is a document that purports to be a police report dated 25 October 2014 in respect of an event involving the applicant’s wife (“First Information Report”).
A fair reading of the RRT’s decision record makes clear that the RRT explored the applicant’s claims with him in some detail and put to him concerns it had about his evidence and noted his responses. Ultimately, the RRT found the applicant’s evidence to be inconsistent, vague, confused and unpersuasive. The RRT noted that it raised its concerns that the applicant had changed his oral evidence in response to the RRT’s questions and noted the applicant’s response. The RRT ultimately was not persuaded by the applicant’s explanations.
In particular, the RRT noted that at the conclusion of the hearing, it had identified its concerns about the applicant’s late provision of documents in support of his application and that country information indicated that false and fraudulent documents were easily obtained in India. The RRT gave the applicant 14 days in which to provide any further documents in support of his application, including the First Information Report referred to by the applicant in evidence to the RRT.
The RRT’s decision record makes clear that it considered the First Information Report when it was provided by the applicant post-hearing. However, in light of the timing of the event which the First Information Report was intended to corroborate, as well as the country information in relation to fraudulent documents in India, together with other concerns the RRT had in relation to the applicant’s credibility, the RRT was not satisfied that the First Information Report and statement were genuine or that the information contained in them was true.
The applicant made no further submission in relation to the complaint in Ground 1 that the RRT had failed to consider in full the complementary protection obligations that Australia owed to him. A fair reading of the RRT’s decision record makes clear that the RRT did consider whether the applicant met the complementary criterion in s.36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”) and, for reasons that appear to be open to the RRT on the evidence and material before and for the reasons it gave, concluded that the applicant did not.
In considering Ground 2, it is well established that the RRT’s subjective appraisals, thought processes and determinations do not constitute information that enliven any obligation under s.424A of the Act (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 at [14] per Finn and Stone JJ). In those circumstances, the applicant’s complaint that the RRT’s adverse credibility findings were not put to him for comment do not establish any jurisdictional error on the part of the RRT.
The applicant’s complaint in Ground 3 that he was denied procedural fairness because the RRT did not invite him to a second hearing or that its decision not to invite him to a second hearing involved some legal unreasonableness is not made out. The applicant was on notice in the delegate’s decision that the credibility of his claims and evidence was in issue and the RRT’s decision record makes clear that those concerns were expressed to the applicant again by the RRT. There is nothing to suggest that the RRT otherwise did anything other than comply with its obligations under Part 7, Division 4 of the Act.
There is nothing in the conduct of the tribunal to suggest that either the conduct of its review or its decision was legally unreasonable (see Minister for Immigration and Citizenship v Li [2013] HCA 18).
To the extent that the applicant’s affidavit filed in support of his application makes two bare, unparticularised assertions that the RRT failed to perform a detailed investigation and failed to consider the required terms and conditions, there have been no further submission made in respect of either of those allegations and neither, by itself, identifies any error capable of review by this Court.
It is well established that the duty of the tribunal is to review, 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). I accept the first respondent’s submission that there a number of very limited cases where material before the Court may establish that the RRT was under a duty to inquire in the sense that there a failure to make an inquiry about a critical fact the existence of which was easily ascertained. In the case before this court there has been no such particulars, evidence or submission to support such an assertion. The RRT’s findings would appear to be open to it on the evidence and material before it and for the reasons it gave, including the RRT’s adverse credibility findings, which are 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).
It is well established that the RRT is not required to accept uncritically any and all claims made by an applicant (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).
Whilst I make no final decision as to whether or not the RRT’s decision is affected by jurisdictional error on the basis that this is an interlocutory proceeding, 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 RRT’s decision record. The RRT applied the relevant and correct law to the facts as it found them to be.
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 17 December 2014, should be dismissed pursuant to r.44.12(1)(a) of the Rules with costs.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 24 April 2015
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Standing
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Statutory Construction
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