SZVYH v Minister for Immigration

[2017] FCCA 427

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVYH v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 427

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – extension of time hearing – whether the Tribunal failed to give applicant opportunity to present arguments and give evidence – whether the Tribunal failed to make an obvious inquiry about a critical fact –extension of time not necessary in the interests of administration of justice – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 425, 476, 477

Cases cited:

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant: SZVYH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 7 of 2015

Judgment of: Judge Street

Hearing date: 8 March 2017

Date of Last Submission: 8 March 2017

Delivered at: Sydney

Delivered on: 8 March 2017

REPRESENTATION

Solicitors for the Applicant: Mr M Jones
Parish Patience Immigration Lawyers

Solicitors for the Respondents: Ms N Blake
Clayton Utz

ORDERS

1. The name of the Second Respondent be changed to the Administrative Appeals Tribunal and dispense with the need to file any further document in that regard.

2. Leave is granted to the Applicant to file in Court the affidavit dated 6 March 2017.

3. Leave is granted to the Applicant to file and rely on the further amended application dated 3 March 2017.

4. The application made by the further amended application for an extension of time under s.477 of the Migration Act 1958 (Cth) is dismissed.

5. The Applicant pay the costs of the First Respondent fixed in the amount of $3,416.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 7 of 2015

SZVYH

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 Refugee Review Tribunal (“the Tribunal”) made on 12 November 2014, affirming a decision of the delegate not the grant the applicant a Protection (Class XA) visa.

2. The application in this Court was filed on 5 January 2015, although the application is dated 5 December 2014. That date would have been within the period under s.477 had the application been filed on that date. An application has been made for an extension of time under s.477 of the Act. The application under s.477 requires consideration of the explanation for the delay, whether there is any relevant prejudice, and the merits of the application. The Court also takes into account the principles identified and addressed in the applicant’s further submissions. No prejudice is suggested by the first respondent in the present case.

3. The applicant’s explanation for the delay is that he signed the application within time and gave the application to a friend who is identified and said to be living at the same address and who was assisting the applicant. The applicant asserts that he was not aware that the document had not been filed within time and that the relevant person that he had given the document to has now returned to India. Whilst the applicant’s explanation was not entirely satisfactory, the real issues in the present case are the merits of the application and whether an extension of time is considered to be necessary in the interests of the administration of justice.

4. The grounds of the further amended application are as follows:

   1. The Tribunal erred by failing to give the Applicant an opportunity to give evidence and present arguments relating to all of the issues arising in relation to the decision under review.

   Particulars

   The Tribunal considered it an issue arising in relation to the decision under review that the Applicant had not given any “credible evidence” of being a witness in a murder trial. This was not raised as an issue in the delegate's decision and the Tribunal did not raise it as an issue with the Applicant at the hearing or at any other time.

   2. The Tribunal constructively failed to exercise its jurisdiction by failing to make an obvious inquiry about a critical fact, the existence of which could have been easily ascertained.

   Particulars

   The Applicant had referred to the details of the criminal prosecution in his original application and had told the Tribunal at the hearing that he could provide all of the relevant statements and police and court reports. Whether there was evidence of the Applicant's involvement in the trial was a critical fact in the Tribunal's reasoning. It could easily have asked for those documents but failed to do so.

5. The applicant is a citizen of India and his claims were assessed against that country. The applicant was granted a Higher Education Sector visa (subclass TU 573) on 11 September 2008 and arrived in Australia on 17 October 2008 as the holder of that visa. On 7 April 2010, the applicant departed Australia and returned to Australia on 23 May 2010. On 14 December 2010, the applicant was granted a Bridging Visa A and his Higher Education Sector visa ceased on 15 March 2011, and the bridging visa came into effect. The bridging visa ceased on 8 October 2012 and he was granted a Bridging Visa B (BVB - subclass WB-020).

6. On 12 October 2012, the applicant departed Australia and returned on 19 February 2013. The applicant’s BVB visa ceased on 27 August 2013, following which the applicant became an unlawful person in Australia. The applicant lodged an application for protection on 20 September 2013.

7. In the protection application, the applicant asserted that he was a witness of a murder case in Griffith. The protection application gave a reference to a case number and a case name and a reference to two persons with a reference to murder. The application by the applicant for protection asserted the accused murderers were known to the applicant and that they were from the same area in which the applicant was born in India. The application asserted that those persons are from a very influential family and politically affiliated with the government in India.

8. The applicant asserted that both accused persons of murder were deported from Australia and will never be allowed to come back to Australia. The applicant says that when he went back to India to visit his family he was attacked by those persons. The applicant asserts that he was very lucky to be alive. The applicant asserts that those persons accused him of being involved in their current situation. The application alleged that those persons went to look for him and hired goons to kill him, and that his family told him to leave India immediately. From the applicant’s migration history, it is apparent that the applicant returned to India in 2010 and 2012.

The Delegate’s Decision

1. The delegate was not satisfied the applicant has a real chance of being persecuted for a Refugees Convention reason. The delegate was not satisfied the applicant’s fear was well-founded. The delegate found the applicant did not satisfy the criteria under s.36(2)(a), or s.36(2)(aa) of the Act, and found that Australia did not have a protection obligation to the applicant.

The Tribunal’s Decision

1. On 10 March 2014, the applicant applied for review of the delegate’s decision. By letter dated 9 October 2014, the applicant was invited to attend a hearing on 11 November 2014. The letter informed the applicant, having considered the material before it, the Tribunal was unable to make a favourable decision on that information alone. The applicant attended on the hearing date to give evidence and present arguments. The transcript has been tendered. The transcript reveals that the Tribunal raised with the applicant his involvement in the alleged murder. The transcript reveals that the applicant was unable to recall dates involving when he spoke to the police or when the murder occurred.

2. When asked by the Tribunal whether the applicant witnessed the murder, as asserted in his application, the applicant said “no”. The Tribunal asked questions that plainly related to the applicant’s credit in respect of an assertion of his involvement in relation to the murder. The applicant was asked what year did he speak to the police. The applicant made a reference to the fact that he could not remember the dates or the year. The applicant made reference to the fact that he had “got all the statements, reports, from the Courts, police”. The applicant asserted that he could provide the Tribunal with the dates.

3. The Tribunal asked the applicant whether the Court found the relevant couple guilty when the applicant responded that he did not know. The Court raised with the applicant, “So you do not know the outcome of the case?” and the applicant again said “no”. The Court then explored with the applicants the alleged threats that he asserted occurred on his return to India. The Tribunal also explored with the applicant his return to India in 2010. The Tribunal also raised with the applicant his delay in the claim for protection. The Tribunal asked the applicant why he went back to India in 2012. The applicant’s credit in relation to the incident was clearly a live issue before the Tribunal.

4. At the end of the hearing before the Tribunal, the Tribunal raised with the applicant that it was having a problem believing the applicant’s case because of the applicant’s behaviour from the time that he found out threats were being made and, in particular, made reference to the applicant’s return to India on two occasions. The Tribunal made reference that on top of this that the applicant was very vague about some important dates. The Tribunal made reference to the fact that the applicant could not recall when the murder in Griffith occurred and could not recall when the applicant spoke to police.

5. The Tribunal observed that those matters could indicate that the applicant is not genuinely in fear of harm in India. The applicant responded saying he is not very good with dates and his memory is not too good. The applicant responded:

   “Whatever has happened - I remember what has happened but I don’t remember the dates”.

6. The applicant also referred to making the mistake in taking a risk and going back to India on two or three occasions. The applicant asserted:

   “whatever has happened, there’s proof because you can see the injuries…You can still see the injuries on my face”.

7. The Tribunal member asked the applicant if there was anything else the applicant wanted to say.

8. On the face of the material before the Court, the applicant had a real and meaningful hearing and the Tribunal complied with its statutory obligations in the conduct of the hearing. In the conduct of the review, the Tribunal, in its reasons, identified the applicant’s background and for detailed reasons set out by the Tribunal, found the applicant was not a witness of truth.

9. Those reasons included the applicant’s return to India in 2010 and 2012 as well as his delay in seeking protection and difficulties with the applicant’s evidence in relation to his role as a witness of a murder. The Tribunal found the applicant’s evidence surprisingly vague about significant events which he says took place in his life. The Tribunal made reference to the applicant’s claims being based on a fear of harm from a husband or wife who also live in Griffith and with whom he had a poor relationship.

10. The Tribunal made reference to the applicant’s fear because he had given evidence against the couple to the police in the investigation of the murder of another Indian person and for whom he understood the couple were deported from Australia to India. The Tribunal made reference to asking the applicant when the murder actually occurred. The Tribunal observed, not unsurprisingly, that surprisingly the applicant could not recall because it was a long time ago when that was, even though he said in his evidence that he commenced living in Griffith in either 2009 or 2010.

11. In relation to the applicant’s recollection, the Tribunal also referred to its surprise in that regard given that the applicant had invited the victim to go to his home for a party and the victim was sharing a home with the couple and was allegedly murdered that same night. The Tribunal made reference to having asked the applicant when he actually spoke to the police and gave that information about the couple and his suspicions that they were responsible for the murder. The Tribunal noted that again the applicant could not remember.

12. The Tribunal made reference to the proposition that the applicant said he had read about the matter in a newspaper and then approached the police. The Tribunal made express reference to the applicant’s assertion that he had taken records about the case. However, the Tribunal observed that it would have expected the applicant to be able to say at least what year it was he spoke to the police given the consequences he claims ensued from doing that. The Tribunal made reference to putting to the applicant his vagueness about these matters at the end of the hearing and his behaviour.

13. The Tribunal found that the applicant was not a witness of truth and that the account of events on which his protection claims were based is false. The Tribunal disbelieved the applicant’s claims that threats had been made against him by anybody at any time in person or over the telephone to him, his mother or his aunt. The Tribunal disbelieved the applicant’s claim that in November 2012 he and his mother were hit while riding on a motorcycle. The Tribunal found it had no credible evidence before it about the murder of an Indian national in Griffith or the applicant’s involvement in any prosecution of that crime, in particular, giving evidence about that to the police.

14. The Tribunal found there was no credible evidence that the applicant or any member of his family suffered harm in India. The Tribunal found that there was no credible evidence that anybody in India wishes to harm the applicant. The Tribunal found that there was no credible evidence before the Tribunal as to why the applicant returned to Australia in May 2010 and February 2013. The Tribunal found there was no credible evidence as to why the applicant does not wish to return to India.

15. The Tribunal found that the applicant’s account about the couple making threats and seeking to harm him was rejected as not being credible. The Tribunal found that there is not a real chance that the applicant will suffer serious harm in India and found that the applicant does not hold a well‑founded fear of persecution based on any Convention ground. The Tribunal found are no substantial grounds for believing that as a necessary and foreseeable consequence of the applicant’s removal from Australia to the receiving country that there is a real risk that he will suffer significant harm.

16. The Tribunal found that the applicant did not meet the criteria of s.36(2) of the Act.

Proceedings before this Court

1. In relation to ground 1, Mr Jones, solicitor for the applicant, contended that there was a breach of s.425 of the Act and that the applicant had not been given a proper opportunity to present all arguments in relation to his fear in respect of his involvement in the murder trial. In particular, Mr Jones sought to rely upon the particulars to ground 2 in support of ground 1 in asserting that there had not been a compliance with the Tribunal’s obligations under s.425.

2. The applicant’s credit before the Tribunal was a live issue during the course of the hearing, as is apparent from the transcript. The adverse credibility findings by the Tribunal cannot be said to lack an evidence and intelligible justification and were open on the material before the Tribunal. There is no arguable case of a breach of s.425 of the Act. Ground 1 is, in substance, and invitation to this Court to engage in an impermissible merits review. Ground 1 fails to disclose any arguable jurisdictional error.

3. In relation to ground 2, Mr Jones, solicitor for the applicant, contended that the applicant’s reference to having statements or reports from the Courts and police was the subject of an obligation and duty upon the Tribunal to make further inquiries to obtain those documents. Mr Jones contended that the documents were relevant to a critical fact being the applicant’s involvement in assisting the police and his fear in respect of the couple. The applicant’s reference to the statements or reports from the Court and police was a matter expressly referred to in the reasons of the Tribunal.

4. That reference was in the context of the applicant being unable to explain the year he spoke to the police about the subject matter of his alleged fear. It is not apparent how either statements or reports from the Court or police could be said to be relevant to a critical fact. There is no obvious inquiry that the Tribunal was bound to make in relation to the documents referred to by the applicant. Nor was there any easily ascertainable critical fact by reference to those documents so far as the applicant’s claim was concerned.

5. The Court has taken into account the applicant’s oral and written submissions. The Court does not accept that there was any duty upon the Tribunal to make inquiry of the applicant for the production of the documents. The Court does not accept that the reference to the existence of statements or reports gave rise to an obligation upon the Tribunal to seek out those documents. The applicant was aware of the existence of documents relating to a murder trial from the time he lodged his application. It was for the applicant, if he saw fit, to adduce documents relating to the case number 20XX/XXXXX XXX if those documents could, in some way, advance his alleged fear of persecution.

6. There was nothing said by the applicant in his evidence that identified some basis upon which the Tribunal ought to have believed that the documents would assist in easily ascertaining a critical fact. No arguable jurisdictional error is disclosed by ground 2.

Conclusion

1. I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [24]-[25] and [59]-[60]. I am not satisfied that there is a sufficiently arguable case on the merits to warrant an extension of time in the interests of the administration of justice.

2. In the circumstances of the present case, an extension of time is not necessary in the interests of the administration of justice.

3. The application for an extension of time under s.477 of the Act in the further amended application is dismissed.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 13 March 2017