SZVVX v Minister for Immigration

[2017] FCCA 1770

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVVX v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1770

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – the Tribunal complied with its statutory obligations in the conduct of the review – the applicant had a real and meaningful hearing before the Tribunal – no jurisdictional error identified – application dismissed.

Legislation:

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

Applicant: SZVVX

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3499 of 2014

Judgment of: Judge Street

Hearing date: 28 July 2017

Date of Last Submission: 28 July 2017

Delivered at: Sydney

Delivered on: 28 July 2017

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents:

Ms C Hillary

DLA Piper

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3499 of 2014

SZVVX

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 Act1958 (Cth) (“the Migration Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 26 November 2014, affirming a decision of the delegate not to grant the applicant a protection 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 4 March 2009 on a student visa. The applicant did not apply for a protection visa until 14 June 2013. 

3. The applicant claimed to fear harm in India by the police and State authorities for the reason that he and his family believed in a separate state of Khalistan and that they were continuously troubled by the authorities as a result of this. 

4. The applicant claimed that he and his father were long term supporters of the Sikh political party and claimed to fear harm by reason of being a young male Sikh.

5. On 3 April 2014, the delegate refused the applicant’s application and found that the applicant failed to meet the criteria under the Migration Act for the grant of a protection visa.

The Tribunal’s decision

1. On 8 May 2014, the applicant applied for review. By letter dated 16 November 2014, the applicant was invited to attend a hearing on 5 November 2014.  The applicant appeared on that date to give evidence and present arguments and was represented by his migration agent. 

2. The Tribunal gave the applicant until 12 November 2014 following the hearing, as an opportunity to provide further comments or responses to the issues raised during the course of the hearing. 

3. The Tribunal in its reasons dated 26 November 2014, identified the applicant’s background and what had occurred in relation to the application for a protection visa. The Tribunal set out the relevant law.  The Tribunal identified the applicant’s claims and evidence.

4. The Tribunal summarised what occurred at the hearing on 5 November 2014, and in particular, the Tribunal raised with the applicant the delay in his application for a protection visa, as well as issues in relation to his claims. 

Consideration of Refugee Convention criteria

1. The Tribunal raised with the applicant a number of concerns about his claims, which the Tribunal summarised. The Tribunal was not satisfied as to the applicant’s claim to have a well-founded fear of persecution if he returns to India based on his political beliefs and because he is a young Sikh male. The Tribunal made adverse findings in relation to the particular incidents alleged by the applicant and also made reference to the material provided by the applicant in support of his claims, and it considered the totality of the applicant’s claims and evidence. 

2. The Tribunal did not believe there is a real chance of persecution of the applicant for his claimed political opinion or because he is a young Sikh male, should he return to India now or in the reasonably foreseeable future. The Tribunal found the applicant was not a refugee within the meaning of the Migration Act.

Complementary protection criteria assessment

1. The Tribunal also considered the issue of complementary protection.  The Tribunal was not satisfied there is a real risk the applicant would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to India.

2. The Tribunal found the applicant failed to meet the criteria under s.36(2)(a) and s.36(2)(aa) of the Migration Act and affirmed the decision under review.

Before this Court

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

   1. The decision of Refugee Review Tribunal involves jurisdictional error.

   2. The Tribunal ignored relevant material.  

2. 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 either 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 unfair. 

3. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent, and then give the applicant an opportunity to put submissions in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court. 

Consideration of the applicant’s submissions from the bar table

1. From the bar table, the applicant sought to maintain that there had been incidents involving his family in relation to assault and harassment. The applicant also suggested that he was not sure if the Tribunal had made up its mind before the hearing. The Tribunal dealt with the incidents alleged by the applicant in relation to himself and his family being assaulted and harassed, and made adverse credibility findings that were open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification. 

2. On the face of the material before the Court, the applicant had a real and meaningful hearing before the Tribunal and the Tribunal complied with its statutory obligations in the conduct of the review. Based on the material before the Court, the Tribunal complied with its obligations of procedural fairness in the conduct of the review.

3. The Tribunal’s reasons reflect an orthodox approach to the determination of the applicant’s claims, and there is no basis upon which an allegation of bias could be made out. The adverse findings by the Tribunal are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. 

4. On the material before the Court, there is nothing to suggest the Tribunal approached the review other than with an open mind reasonably capable of persuasion. No allegation of bias is made out.  No jurisdictional error arises from anything said by the applicant from the bar table. 

Consideration of the grounds

1. In relation to ground 1, the allegation that the decision involves jurisdictional error does not identify any jurisdictional error.  Ground 1 fails to make out any jurisdictional error. 

2. In relation to ground 2, the assertion of ignoring relevant material is unparticularised or unsupported and does not identify any jurisdictional error. 

Conclusion

1. As the application fails to make out any jurisdictional error, the application is dismissed. 

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  6 September 2017