SZVYI v Minister for Immigration

[2016] FCCA 411

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVYI v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 411

Catchwords:
MIGRATION – Review of decision of the former Refugee Review Tribunal – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.36, 424A, 425

Applicant: SZVYI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 8 of 2015

Judgment of: Judge Driver

Hearing date: 1 March 2016

Delivered at: Sydney

Delivered on: 1 March 2016

REPRESENTATION

The Applicant appeared in person by telephone

Solicitors for the Respondents: Ms N Maddocks of DLA Piper

INTERLOCUTORY ORDERS

1. The name of the second respondent is amended to the Administrative Appeals Tribunal.

2. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 8 of 2015

SZVYI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal).  The decision was made on 9 December 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from India and had made claims of religious persecution.  The following statement of background facts is derived from written submissions by the Minister.

2. The applicant, a male citizen of India, was born on 16 March 1981.[1]  He arrived in Australia on 26 May 2013.[2]

   [1] Court Book (CB) 45

   [2] CB 52

3. The applicant applied for a protection (Class XA) visa on 21 June 2013.[3] His claims were set out in a statement accompanying the application:[4]

   a)the applicant claimed to fear persecution in India by the Indian authorities and police on the basis of his Muslim religion.  He claimed that, following the Mecca Masjid bombings in May 2007, it had become the practice of Indian police to harass Muslim youth and that his brother was held in illegal custody for over six months for his alleged involvement;

   b)the applicant further claimed that both he and his brothers were subject to years of police harassment and torture, and that the harassment had both impacted on his family business and made it unbearable for him to live anywhere in India;

   [3] CB 1-26

   [4] CB 63-64

4. The protection (class XA) visa application was refused by a delegate of the Minister, on 10 April 2014.[5] 

   [5] CB 121-134

5. The delegate accepted that the applicant was originally from Hyderabad and was a Muslim.[6] 

   [6] CB 128

6. However, the delegate found that the applicant's material claims for protection were not credible on the basis that the applicant's evidence was vague, lacking in detail and otherwise illogical.[7]  Specifically, the delegate did not accept that the applicant had faced police harassment or that he was a person of interest to Indian authorities, did not accept that the applicant's brother was a person of interest to Indian authorities or that he was arrested following the 2007 bombings, and did not accept that the applicant feared harm on returning to India.[8] 

   [7] CB 125

   [8] CB 128

7. The applicant applied to the Tribunal for review of the delegate's decision on 30 April 2014.[9]  The applicant provided a copy of the delegate’s decision to the Tribunal with his application for review.[10]

   [9] CB 135-140

   [10] CB 147-160

8. The applicant gave oral evidence before the Tribunal on 25 November 2014.[11] 

   [11] CB 172-175

9. At hearing, the applicant advanced a claim that he was arrested and detained by the police following his brother’s arrest.[12]

   [12] CB 190-191 [24]-[25]

The Tribunal decision

1. The Tribunal raised its concerns regarding the applicant's credibility with him at hearing, and was not satisfied as to the credibility of the applicant or the credibility of his claims.[13] 

   [13] CB 194 [39]

2. The Tribunal found that the applicant was very vague in his evidence when discussing the circumstances in which his brother was arrested and detained, and also in relation to his claims regarding his arrest and detention for three days.[14]

   [14] CB 194 [38]

3. As such, the Tribunal was not satisfied that the applicant faced a threat to his life from Indian government agencies should he return to India, nor that he or his brothers were tortured as claimed in relation to his brother's detention.[15]  The Tribunal was also not satisfied that the applicant and his family paid a bribe to secure his brother’s release from detention, or that either the applicant or his brother were in fact detained, as claimed.[16]

   [15] CB 195 [40]

   [16] CB 195 [40]

4. The Tribunal considered the applicant's general claim to fear harm on the basis of his Muslim religion,[17] however it was not satisfied the applicant faced persecutory harm for reason that he was a Muslim, should he return to India now or in the reasonably foreseeable future.[18] The Tribunal relied on country information in so finding.[19]

   [17] CB 195-196 [43]

   [18] CB 196-197 [44]

   [19] CB 195-197 [43]-[44]

5. The Tribunal concluded that the applicant did not satisfy the criteria for grant of the visa in s.36(2)(a) or s.36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act).[20]

   [20] CB 197 [45]-[46]

The present proceedings

1. These proceedings began with a show cause application filed on 5 January 2015.  The applicant was given the opportunity to file and serve an amended application and additional evidence but he has not taken up that opportunity.  There are two grounds in the application:

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

   2. The Tribunal ignored relevant material.

2. The application is supported by an affidavit which I received to the extent that it contained statements of fact. 

3. I also have before me as evidence the court book filed by the Minister on 16 February 2015 and other material tendered in the course of oral argument.

4. First court date directions in this matter were given by Registrar Morgan on 26 February 2015.  The applicant attended in person and consented to orders which, among other things, listed the matter for a show cause hearing at 11.00am on 2 March 2016.  Subsequently, the Minister’s solicitors raised with my associate a conflict between those orders and what appeared on the Commonwealth Courts Portal.  On 9 March 2015, my associate sent an email to the parties in which she advised that the correct hearing date was 1 March 2016 at 11.00am.[21]  Two letters were sent by the Minister’s solicitors on 10 March 2015[22] and 19 February 2016,[23] reminding the applicant of the hearing today at 11.00am.  Those letters also advised the applicant that if he failed to appear at the hearing, the Minister would seek the dismissal of the application on account of that non-appearance.

   [21] The registrar amended the orders under the Slip Rule

   [22] Exhibit R1

   [23] Annexure A to the affidavit of Cassandra Iling Nguyen made on 1 March 2016

5. The applicant did not appear when this matter was called at 11.00am.  However, the Court was successful in contacting him on his nominated telephone number.  Somewhat surprisingly, the applicant claimed that he thought the hearing was on 3 March at 11.00am.  When I reviewed the circumstances with him, however, he amended that claim to a belief that the hearing was on 2 March at 11.00am.  He claims to have a letter from someone advising him of a hearing date on 2 March.

6. Nevertheless, the applicant offered to attend today’s hearing by telephone, and I accepted that offer.  The applicant told me that he had received the court book filed by the Minister on 16 February 2015.  He has discussed the court book with a person he describes as a lawyer by the name of Mishaf Malik.  That person has apparently retained the applicant’s copy of the court book.

7. To the extent necessary, I discussed the contents of the court book with the applicant, and he had no objection to me receiving it as evidence.  The applicant denied receipt of the Minister’s outline of submissions sent under cover of the letter dated 19 February 2016.  I left the bench while those submissions were read to the applicant by the interpreter.

8. I invited the applicant to make oral submissions in relation to the grounds in his application.  The applicant told me that he had submitted all of the material he wishes to rely upon to the Court, and he called on the Court to deal with that information and make a decision.

9. The first ground of review is a bald allegation of jurisdictional error.  That is meaningless in the absence of particulars.  The second ground of review is an assertion that the Tribunal ignored relevant material.  The applicant was not able to identify what that material was.  I raised with him, however, the possibility that he was intending to refer to the substantial body of medical documents reproduced in the court book between pages 75 and 114.

10. I drew his attention to the decision of the Minister’s delegate, which relevantly[24] contains an expression of concern by the delegate that the documents may not be genuine.  The delegate declined to give the documents any significant weight.  The delegate observed that, in any case, the documents testify to the applicant having an injury and that he was manhandled.  The documents do not explain the circumstances in which any such injury was incurred.

    [24] CB 127

11. It is apparent from the Tribunal’s reasons [35][25] that the Tribunal raised the issue of the medical evidence with the applicant at the Tribunal hearing.  The Tribunal put the applicant on notice that the Tribunal might find that the documents were not genuine.  The Tribunal did not otherwise discuss the medical documents in its reasons.  In my opinion, it did not need to.

    [25] CB 193

12. The Tribunal states at [45] of its reasons[26] that it had considered all of the applicant’s evidence.  The Tribunal only needed to expressly deal with evidence which had some bearing on the review.  The medical documents, although numerous, do not in terms support the applicant’s protection claims.  Assuming the documents are genuine, they simply recount medical attention received by the applicant on various occasions between 2007 and 2012. 

    [26] CB 197

13. In my opinion, the Tribunal did not ignore any relevant material.  Neither, in my opinion, did the Tribunal otherwise fall into jurisdictional error.  The Tribunal considered all of the applicant’s claims and made findings on them which were available on the material before the Tribunal.  The Tribunal complied with its procedural code.  I otherwise agree with the Minister’s submissions concerning the grounds of review. 

14. The Minister submits that the pleaded grounds make broad assertions of jurisdictional error on the part of the Tribunal which, absent particulars, cannot be made out.  I agree.

15. Ground 1asserts that the Tribunal decision involves jurisdictional error. 

16. As I have already noted, the Tribunal made findings of fact open to it on the evidence and material before it.

17. As I have also noted, the Tribunal complied with its statutory obligations pursuant to Division 4 of Part 7 of the Migration Act. Specifically, the Tribunal complied with the hearing rule codified in s.425 of the Migration Act and traversed the issues dispositive of the review with the applicant at hearing on 25 November 2014. The Tribunal's obligations under s.424A were not enlivened in this matter.

18. Ground 2 asserts that the Tribunal ignored relevant material.  For the reasons set out below, I accept the Minister’s submission that this ground cannot be made out:

    a)the applicant provided various medical documents to the Minister’s Department following an interview held on 11 December 2013.  These medical records revealed, among other things, that the applicant was in hospital in India in August and September 2007;

    b)the Tribunal expressly referred to the medical documents which the applicant provided to the Department, at [35]. The Tribunal also stated that, at hearing, it raised with the applicant that medical evidence had been provided to the Department, that document fraud was widespread in India, and that the applicant was asked how the Tribunal could be satisfied that the medical documents from India were genuine. In response, the applicant stated that he had made an honest request and/or attempts to get the documents from the hospitals and doctors;[27] 

    c)whilst the Tribunal did not make any express reference to the medical evidence in its findings, no jurisdictional error flows from this.  The Tribunal’s questioning of the applicant at hearing, summarised at [35], makes clear that the Tribunal was aware of the medical evidence provided by the applicant to the Department and an evidentiary inference should be drawn that the Tribunal did not ignore this material.  This is in particular in circumstances where the Tribunal stated at [45] that it had considered the applicant’s evidence.  

    [27] CB 193-194 [35]

19. I conclude that the applicant has failed to demonstrate an arguable case of jurisdictional error by the Tribunal.

20. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application is dismissed.

21. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant, as I understand it, indicated an intention to pursue his appeal rights but did not make any submissions on costs.

22. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:  3 March 2016