SZVYS v Minister for Immigration

[2016] FCCA 3174

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVYS & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3174

Catchwords:
MIGRATION – Application to review decision of the Refugee Review Tribunal – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.424A

Cases cited:

SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609;

[2007] HCA 26

First Applicant: SZVYS

Second Applicant: SZVYT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 32 of 2015

Judgment of: Judge Barnes

Hearing date: 1 December 2016

Delivered at: Sydney

Delivered on: 1 December 2016

REPRESENTATION

The First Applicant:	In Person
Solicitors for the Respondent:	Clayton Utz

ORDERS

1. The name of the Second Respondent be amended to “Administrative Appeals Tribunal”.

2. The application be dismissed.

3. The Applicants pay the costs of the First Respondent fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 32 of 2015

SZVYS

First Applicant

SZVYT

Second 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 for review of a decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal, dated 10 December 2014.  The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicants’ protection visas. 

2. The Applicants are citizens of India who arrived in Australia in July 2013.  On 19 August 2013 they applied for protection visas.  The First Applicant, referred to for convenience hereafter as the Applicant, made claims to fear harm on return to India.  The Second Applicant, his wife, lodged a Form D application as a member of her husband’s family unit.  The Tribunal recorded that during the hearing the Second Applicant gave evidence that she was not making any of her own claims and that she was depending upon her husband’s claims.

3. In support of the protection visa application, the Applicant provided a three-page statement outlining his claims.  He attended an interview with a delegate.  After his application was refused he sought review by the Tribunal.  He provided a document said to be a supporting letter from a person who claimed that the Applicant felt a great loss of his business and was at risk of death if he returned to India.   

4. As the Tribunal summarised, in his application the Applicant claimed to have borrowed 10 lakhs in 2001 at a high interest rate to start a diamond business.  He claimed that he borrowed from a well-known businessman in the industry and that he made payments in accordance with the agreement until 2012 when his business slowed down and he was unable to meet his repayments.  He claimed that as a result the lender pursued him and made threats against him, his wife and their children.  In his statement he explained this as a claim that the lender came to his house with goons and demanded payment of 10 lakhs and threatened him repeatedly.  He claimed he went to the police, but they refused to take action because of the lender’s connections to the BJP and prominent politicians.  He also claimed that the police and political parties were corrupt and would not protect him and that he moved around, sold his house quietly and came to Australia. 

5. The Tribunal, for reasons which it gave, did not accept any of the claims made by the Applicants in relation to a loan being made to them and/or threats made against them and/or threats being made against their family and children.  It found that the Applicants had fabricated all their claims for the sole purpose of applying for protection in Australia. 

6. It made these findings based on a number of concerns, which it detailed.  The evidence was that the Applicant’s children were living in India at his in-law’s house in the same village where they had lived before the Applicants travelled to Australia and continued to attend school.  In circumstances where the Applicants claimed they would be killed and/or their children kidnapped and the Applicant had been approached at his in-law’s house, the Tribunal did not accept that they would leave their children “apparently in harm’s way”.    The Tribunal did not accept the explanation that the Applicants did not bring the children to Australia because the children did not have passports because they were studying.  It did not find this explanation credible in light of the Applicant’s claims that they were threatened and the children were threatened with kidnapping. 

7. Nor did the Tribunal accept the Applicant’s evidence that they would not consider relocating in India if the threats made against them were true.  It had regard to the Applicant’s evidence that he had only lived in two places in India, his claim that he could not relocate anywhere else and his claim that he had been threatened when he lived in Ahmedabad.  However the Tribunal found that it was not credible that they did not attempt relocation in light of the claims that their lives and the lives of their children were at risk.  It observed that the Applicants had travelled to Australia, a country where they did not speak the language, have regular employment or family support, but proposed to start a life and found that this suggested they were capable of relocation.

8. The Tribunal did not accept the Applicant’s claim that he borrowed an amount of 10 lakhs (which the Tribunal calculated was $19,451) in 2001 to start a diamond business.  It found his claim implausible, considering he sold his house 12 years later in 2013 for the equivalent of $3,890 and earned the equivalent of $583 a month.  The Tribunal did not accept the Applicant would go into such a level of debt to start a business 13 years earlier.  It took into account his evidence that he purchased four machines, that each machine required four workers and that he wanted to employ a lot of people, but did not find this evidence credible in light of his “overall claims of poverty”. 

9. The Tribunal also had regard to a contradiction between the Applicant’s written submission that he had to pay 17 per cent interest and his oral evidence to the Tribunal that the rate of interest was 1.7 per cent.  It found that the Applicant had failed to provide any explanation for this contradiction, other than to affirm that the rate was 1.7 per cent.  The Tribunal noted that the Applicant had recorded that he could read and write English in his protection visa application form.  It found the contradiction indicated that he had fabricated his evidence for the sole purpose of pursuing his refugee claims. 

10. The Tribunal also found that the Applicants apparently lacked a willingness to provide basic evidence in response to basic questions.  It described the difficulty it experienced at the hearing in obtaining information regarding how they supported themselves in Australia and their current income.  It found that the manner in which they provided their evidence indicated they were fabricating evidence in an attempt to further their refugee claims. 

11. The Tribunal also had regard to the Applicants’ evidence that they had not repaid any money under the loan since they came to Australia in July 2013.  It did not accept that they would not have taken steps to repay or reduce the debt if they believed it existed and if their children’s lives were under threat due to such a debt.  It found that, overall, the Applicants’ actions indicated their claims were fabricated. 

12. The Tribunal considered the document said to be from a citizen of the Applicant’s village in India who had known the Applicant for 20 years which also asserted that the Applicant travelled to Australia due to mental stress because of torture by the lender.  However it found that it was not clear who this person was and/or why his evidence should be accepted at face value and that it added little or nothing to the Applicant’s claims. 

13. For these reasons, the Tribunal was not satisfied that either of the Applicants was a person in respect of whom Australia had protection obligations. 

14. The Tribunal concluded that the Applicants did not meet the Refugees Convention criteria.  As it had not accepted any of their claims to protection and found that they had fabricated their claims for the sole purpose of pursuing the application, considering their overall circumstances it also found that they did not meet the complementary protection criterion. 

15. Hence the Tribunal also found that the Applicants were unable to satisfy the family unit criteria.  It affirmed the delegate’s decision. 

16. The Applicants sought review by application filed in this court on 6 January 2015. There are three grounds in the application. The Applicants did not file written submissions. When I gave the Applicant the opportunity to address these grounds today he said that he had nothing to say. When I asked him about ground 2, which is an assertion of a failure to comply with s.424A of the Migration Act 1958 (Cth), he was unable to identify any information which would have enlivened the obligation under that section.

17. The first ground is that the Tribunal committed jurisdictional error “by failing to address the applicant’s claims in the way it was made” (sic).  There are three particulars to this ground which may be intended to be cumulative.  They are that:

    (a) The applicant stated in his protection visa application that he was a businessman. 

    (b) The applicant borrowed 10 laks. 

    (c) The Tribunal did not consider applicant’s claims. 

18. The matters referred to in the particulars are part of the background facts said to support the Applicant’s claim that he feared harm from a lender he claimed had lent him money. 

19. Contrary to the contention in this ground, the Tribunal understood and considered the Applicant’s claims in this respect, as set out in the statement accompanying the protection visa application (in which he claimed that in 2001 he borrowed from a named private lender with a high interest to start a diamond cutting and polishing business) and as discussed at the Tribunal hearing.  There is no evidence that the Applicant made any broader claim to fear harm purely on the basis of being a businessman. 

20. The Tribunal also understood that, as set out in the statement accompanying his protection visa application, the Applicant claimed that he had borrowed 10 lakhs for the running of the business.  It considered that claim in its reasons for decision (as set out above) but, for the reasons given, did not accept the truth of such claim.  Insofar as the assertion is that the Tribunal failed to consider the Applicant’s claims or an integer of the Applicant’s claims, it is not established on the material before the court that the Tribunal failed to consider any integer of the Applicant’s claims.

21. I note in that respect that notwithstanding that the Second Applicant told the Tribunal that she was not making any of her own claims and was depending on her husband’s claims, in its findings and reasons the Tribunal considered whether she had a well-founded fear of persecution or met the complementary protection criterion as well as her claims based on being a member of her husband’s family. 

22. Insofar as this ground is in essence a contention that the Tribunal ought to have accepted the Applicant’s claims, it seeks impermissible merits review.  If this ground is seen as raising a contention that the Tribunal failed to consider material or evidence, the Tribunal considered the supporting letter provided by the Applicants and gave reasons for not placing any weight on that letter. 

23. I note more generally that the Tribunal’s findings were reasonably open to it on the material before it for the reasons which it gave.  It has not been established that there was not a factual basis for such findings.  It has not been established that the Tribunal erred in the manner contended for in ground 1.

24. Ground 2 asserts a failure to comply with s.424A of the Migration Act. It summarises the obligation under s.424A(1), but does not identify any information which may have enlivened that obligation. There are no particulars to this ground. When I asked the Applicant today if he could identify the information that he said should have been put to him, he was unable to assist.

25. It is not apparent on the material before the court that there was any information that enlivened s.424A(1). Insofar as the Tribunal had regard to information provided by the Applicants, the s.424A(1) obligation does not apply to information that the Applicant gave for the purpose of the application for review (see s.424A(3)(b) or information that the Applicant gave during the process that led to the decision under review other than oral information given to the Department (see s.424A(3)(ba)). There is no suggestion in the Tribunal’s reasons for decision that it relied on any oral evidence given to the delegate, as distinct from the Applicant’s oral evidence to the Tribunal.

26. The matters which the Tribunal relied on either fell within these exceptions or were based on the Tribunal’s subjective appraisals of inconsistencies in the Applicant’s evidence and other concerns about aspects of the evidence.  The Tribunal is not under an obligation to put its subjective appraisal of inconsistencies to the Applicants for comment (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 at [18]). It has not been established that there was any failure to comply with s.424A of the Act.

27. Further, while ground 2 is drafted in terms of s.424A of the Act there is no evidence before the court by way of a transcript of the Tribunal hearing to support any concern that the Tribunal failed to raise dispositive issues with the Applicant and the Tribunal decision is to the contrary. Ground 2 is not made out.

28. Ground 3 is that “The Tribunal’s decision was unjust and made without taking into account the full gravity of the applicant’s circumstances and consequences of claims.  The Tribunal did not consider the applicant who had been under immense and intimidating pressure from debtor.” 

29. I take it that the reference to “debtor” is intended to be a reference to the lender. 

30. Insofar as the First Respondent submitted that the failure to particularise a ground of review was “a sufficient basis for the Applicants’ ground to be dismissed”, in my view in circumstances where an Applicant is self-represented it is appropriate for the court to endeavour to ascertain what is intended by a ground, whether unparticularised, badly expressed or unclear.  However in this case and without the benefit of any submissions from the Applicant, it appears that it takes issue with the fact that the Tribunal did not accept the Applicant’s claims.  In this sense ground 3 does no more than seek impermissible merits review. 

31. The concluding sentence of ground 3 suggests that the Tribunal did not consider the Applicant had been under immense and intimidating pressure from the lender.  Again, insofar as this relates to the Applicant’s factual claims it seeks impermissible merits review.  If it could be seen as some concern about the conduct of the hearing, in the absence of a transcript of the hearing it has not been established that the Tribunal failed to comply with s.425 of the Act or in any way failed to accord the Applicants procedural fairness. 

32. I note that after the Tribunal sent a hearing invitation to the Applicant he indicated a wish to participate by way of video conference.  The Tribunal agreed and the hearing proceeded on that basis.  When the Tribunal notified the Applicant of its agreement it informed him: 

    If you prefer to attend in person in Sydney, please contact the Tribunal as soon as possible. 

33. There is also no evidence before the court to suggest that there was any issue at all about either Applicant’s fitness to participate in the Tribunal hearing.

34. Nor, more generally, is there anything to suggest that the Tribunal made findings that were not reasonably open to it on the evidence before it.  Ground 3 is not made out.

35. For the sake of completeness I note that in the affidavit accompanying his application the Applicant claimed he was a businessman by profession in India and had suffered persecution in India and feared it would continue if he returned.  Such claims echo the issues raised in ground 1 and seek impermissible merits review. 

36. As none of the grounds relied on by the Applicants has been established the application must be dismissed. 

37. The Applicants have been unsuccessful and the Minister seeks that they pay his legal costs. The Minister sought legal costs in the amount of the suggested, but not mandatory, scale amount provided for in the Schedule to the Federal Circuit Court Rules. It is appropriate that the unsuccessful Applicants meet the costs of the First Respondent. However in my view, having regard to the lack of complexity and limited issues raised in these proceedings and the nature of this and other similar matters, an appropriate amount is the sum of $5,000.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Date: 8 December 2016