SZWBG v Minister for Immigration & Border Protection
[2015] FCCA 772
•20 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZWBG v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2015] FCCA 772 |
| 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) Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13 |
| Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510 |
| Applicant: | SZWBG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 255 of 2015 |
| Judgment of: | Judge Emmett |
| Hearing date: | 20 March 2015 |
| Date of Last Submission: | 20 March 2015 |
| Delivered at: | Sydney |
| Delivered on: | 20 March 2015 |
REPRESENTATION
| The applicant appeared in person with the assistance of a Tamil interpreter |
| Solicitor for the Respondents: | Mr Andras Markus (Australian Government Solicitor) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 255 of 2015
| SZWBG |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Refugee Review Tribunal dated 9 January 2015 (“the RRT”), which affirmed a decision of a delegate of the first respondent not to grant a protection visa to the applicant (“the Delegate”).
On 2 February 2015, the applicant filed an application seeking judicial review of a decision of the Refugee Review Tribunal dated 9 January 2015 (“the RRT”).
On 26 February 2015, the applicant attended a directions hearing before a registrar 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 16 March 2015. The applicant was also directed to file and serve written submissions in support of the grounds of his application by 16 March 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.”
I accept as accurate the summary of the applicant’s claims and the RRT decision in the submissions of the first respondent filed on 17 March 2015. Those submissions are as follows:
“Applicant’s Claims
7. Prior to arriving in Australia, the applicant lived in Tamil Nadu in southern India. He had lived in a village until about 2004 when he moved to Chennai. He claimed to fear returning to India due to his involvement with a Muslim political party, the Tamil Nadu Munnetra Kazhagam (TMMK), and his more recent involvement with an anti-nuclear group, the People’s Movement Against Nuclear Energy (PMANE).[1]
8. The applicant claimed that due to his involvement with the TMMK he was attacked and injured by the right wing Hindu party, the Rashtriya Swayamsevak Sangh (RSS) and its affiliated group the Bharatiya Janata Party (BJP).[2] In 2010, he resigned from the TMMK, however in 2012, the RSS and BJP came looking for him at his office and also visited his home and attacked his son.[3] He fears being threatened or attacked by the RSS or BJP if he returns to his family home in India, particularly because the BJP are running the country and targeting Muslims.[4]
9. In 2011 or 2012, the applicant was involved in a protest as part of the PMANE and in 2012, he participated in a hunger strike, after which he was arrested and taken to the police station where a First Information Report was filed against him, although he was later released and no charges were filed.[5] The applicant did not participate in a significant PMANE protest in March 2012 in which many protesters were arrested, nor has he had any contact with PMANE since his arrival in Australia.[6]
[1] RD 34-35
[2] RD 34
[3] RD 93 [25]
[4] RD 94 [31]-[35]
[5] RD 92 [11], 96 [49]
[6] RD 96 [55]-[57]
Tribunal Decision
10. The Tribunal accepted that the applicant is a Muslim and that he was assaulted in his home village by Hindu nationalists in 2005 for his involvement in the TMMK.[7]
[7] RD 98 [65]-[66].
11. The Tribunal acknowledged it was ‘understandable’ that the applicant would have some nervousness regarding the future under the current Prime Minister, given that he had been involved with a Muslim organisation and was previously attacked. However, it found that there was no evidence of a deterioration in the situation for Muslims in Tamil Nadu, or in India, and on that basis, it found there was not a real chance the applicant would be persecuted for being a Muslim if he returned to India.[8]
[8] RD 98 [71], 99 [72]
12. The Tribunal accepted that the applicant had experienced some harassment by a group of local Hindu nationalists while in Chennai. However, it found it implausible that this harassment continued after the applicant’s resignation from the TMMK in 2010, and did not accept that the claimed incidents occurred in 2012.[9] It reached this conclusion on the basis of the following:
[9] RD 99 [76]
12.1 there was no evidence before the Tribunal indicating that ex-members of the TMMK were being targeted by Hindu nationalists in Tamil Nadu[10]
[10] RD 99 [77]
12.2 inconsistencies in the applicant’s evidence regarding the treatment of ex-TMMK members[11]
[11] RD 99 [78]
12.3 illogicality of the applicant’s claim that he faced a resurgence in hostility in 2012 towards him[12]
[12] RD 99 [79]
12.4 the applicant’s actions, and those of his wife, were inconsistent with his claims to fear serious harm for the reasons claimed. In particular, the Tribunal noted that:
12.4.1 the applicant took no steps to protect his family despite claiming they were harassed at their family home. The Tribunal did not accept he had been ‘in hiding’ at all, as he had admitted at the hearing he had been living at home apart from the time when the RSS visited the house looking for him
12.4.2 the applicant had not made enquires about obtaining international protection while in Malaysia in 2012
12.4.3 the applicant had left his children with their grandmother at their family home which he alleged had been targeted
12.4.4 the applicant’s wife returned to their family home rather than applying for a protection visa while she was in Australia, which was considered inconsistent with the applicant’s claims.[13]
13. The Tribunal did not accept that, at the time he left India, the applicant considered himself to be at risk of serious or significant harm because of his involvement with TMMK.[14] It found that the chance of the applicant being harmed in the reasonably foreseeable future for the reason of his religion, his involvement with TMMK, or a combination of both, was remote.[15]
14. The Tribunal accepted that the applicant was part of a core group of active supporters of PMANE[16] and that he had been detained in 2012 in relation to the hunger strike. It also noted, however, that although the applicant’s active involvement with PMANE was known to the police, he had been released without charge and had never been charged with any crime because of his involvement with the PMANE.[17] Observing that the applicant did not have problems after this, although he continued to be involved with the PMANE, the Tribunal expressed satisfaction that, at the time he left India, the applicant was of no ongoing interest to the authorities as a result of his PMANE activities.[18]
15. Whilst the Tribunal accepted that the applicant may resume his PMANE activities if returned to India, it noted that the applicant had not claimed that the protests were continuing in Tamil Nadu, nor did the Tribunal have evidence that protests were continuing.[19] The Tribunal therefore found that any other PMANE activities the applicant might engage in would only have a remote chance of subjecting him to serious harm. Accordingly, the Tribunal concluded that the applicant does not have a well-founded fear of persecution for the Convention reason of political opinion.[20]
16. The Tribunal concluded that, on the basis of the same factual findings as were made in respect of the applicant’s Convention based claims, there is not a real chance the applicant will be harmed for any of the reasons given by him if he returned to India. Therefore, he did not meet the Complementary Protection criteria.[21]”
[13] RD 99 -100 [80]-[84]
[14] RD 100 [85]
[15] RD 100 [87]
[16] RD 100 [89]-[90]
[17] RD 102 [96]-[97]
[18] RD 102 [98]
[19] RD 102 [101]-[102]
[20] RD 102 [103]
[21] RD 103 [105]
The applicant was unrepresented before the Court this morning although had the assistance of an interpreter.
The applicant confirmed that he has not filed any further documents in support of his application to this Court and has no further documents to hand to the Court this morning. The applicant also confirmed that he continues to rely on the grounds of his initiating application filed on 2 February 2015. Those grounds are as follows:
“1. The Tribunal constructively failed to exercise its jurisdiction:
Particular
The applicant provided documents to the Tribunal to corroborate his claims. The Tribunal failed to engage in active intellectual process of these documents. The Tribunal ultimately gave the documents no weight on the basis of credit findings. It was an error for the Tribunal to assess the applicant’s credit without first assessing whether the substance of the documents corroborated his claims.
2. The second respondent failed to comply with the mandatory requirement under section 424A (read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why the information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.
Particular
The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to. and did not, comply with the requirements set out in section 424AA of the Act.
3. The Tribunal failed to consider an integer of the applicant’s claim, in failing to consider whether or not a liberal Muslim (regardless of their specific claims of affiliation or past persecution) in India was at risk of harm from radical Hindus, and not able to access effective protection.”
Each of the grounds was interpreted for the applicant, and he was invited to say whatever he wished in support of those grounds.
In Ground 1, the applicant asserts that the RRT constructively failed to exercise its jurisdiction because it gave no weight to documents provided by the applicant to corroborate his claims. However, such a complaint misunderstands the RRT’s reasons.
The documents provided by the applicant were accepted by the RRT both as authentic and in respect of the facts asserted within them. However, the RRT found that they were not sufficient to corroborate the applicant’s claims of being at risk of harm for the reasons claimed.
In particular, the RRT accepted that the applicant had been harassed in 2005 and was assaulted in his village by local thugs from opposing political parties. The RRT accepted that the applicant had been a member of the Tamil Nadu Munnetra Kazhagam (“TMMK”) in 2010 and that he had been an office-holder in that organisation. The RRT also accepted that the reason for the harm that he suffered in 2005 was his involvement with the TMMK. The documents provided by the applicant simply went to corroborate those claims, which were accepted.
Central to the RRT’s affirmation of the Delegate’s decision was its rejection of the applicant’s evidence in relation to events the applicant claimed occurred in 2012 on the basis that there was no evidence before the RRT, either in the nature of country information or otherwise, to support those claims.
The RRT also had regard to various inconsistencies that it found to exist in the applicant’s evidence with regard to the treatment of ex‑TNMK members and the RRT’s finding that the applicant’s claim that he faced a resurgence of hostility in 2012 to be illogical.
The RRT further found that the applicant’s actions were inconsistent with his claims to fear serious harm, as identified above in the summary of the RRT’s decision record.
In the circumstances, Ground 1 is misconceived.
In Ground 2, the applicant asserts that the RRT failed to comply with its obligations under s.424A of the Migration Act 1958 (Cth) (“the Act”). I explained to the applicant that s.424A of the Act required the RRT to give him certain information that may be the reason, or part of the reason, for it affirming a decision under review. I then asked the applicant what was the information that he says the RRT was required to give him. The applicant gave an entirely unresponsive answer in restating that there are still problems in his country and that the RRT had not accepted his claims and that he did not understand why.
The RRT decision record makes clear that the basis of the RRT affirming the decision under review was based solely on the applicant’s own evidence and certain country information to which it referred. Section 424A(3)(a) of the Act expressly excludes country information from the obligations under s.424A of the Act. Further, it is well settled that the country information to which the RRT has regard and the weight it gives that information is a matter for the RRT (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).
To the extent that the applicant stated that he did not understand the RRT’s decision record and that he was expecting a favourable result, such a complaint does not establish jurisdictional error on the part of the RRT.
In Ground 3, the applicant asserts that the RRT failed to consider an integer of his claim, being whether or not a liberal Muslim in India was at risk of harm from radical Hindus and not able to access effective protection.
I accept the submission of the solicitor for the first respondent, Mr Markus, that no such claims squarely emerged on the claims made by the applicant or in the record of the RRT’s decision in relation to its summary of exchanges it had with the applicant. The applicant’s claims were confined to his association with the TNMK and his involvement in a movement against nuclear energy. A fair reading of the RRT’s decision record makes clear that those claims were considered in some detail by the RRT with the applicant at the hearing. The RRT put to the applicant concerns that it had about his evidence and noted the applicant’s responses.
Whilst I make no final decision as to whether or not the decision of the RRT is affected by a jurisdictional error, none is apparent on the face of the RRT’s decision record and none has been identified by the applicant. The RRT’s findings would appear to be open to it on the evidence and material before it and for the reasons it gave.
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 2 February 2015, should be dismissed pursuant to r.44.12(1)(a) of the Rules with costs.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 1 April 2015
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
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Civil Procedure
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Standing
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Appeal
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