FEDERAL COURT OF AUSTRALIA

SZRGI v Minister for Immigration and Border Protection [2013] FCA 1190

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to Minister for Immigration and Border Protection.

2.    The appeal be dismissed.

3.    The appellant pay the costs of the first respondent, to be assessed unless otherwise agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    By notice of appeal filed on 22 July 2013 the appellant appeals from a decision of a judge of the Federal Circuit Court of Australia delivered on 11 July 2013 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 25 September 2012.

BACKGROUND AND CLAIMS

2    The appellant is a citizen of India who arrived in Australia most recently on 28 January 2010. On 22 November 2010, the appellant applied for a protection visa. A delegate of the first respondent made a decision to refuse the application for the visa on 27 June 2011.

3    The appellant claimed to be a supporter of the Congress Party and that his involvement had attracted the adverse attention of the opposing Shiromani Akali Dal (SAD) party. He borrowed money from a moneylender at a high interest rate to support his brother in Australia. His brother had been badly injured from a motor vehicle accident and he borrowed money so that he could travel to Australia to support him. The appellant claimed that when he went to repay the moneylender, the moneylender demanded double the original amount and threatened to kill his family if he did not pay. A couple of weeks later, SAD thugs came to his home and he was beaten viciously.

4    The appellant claimed that a relative of his who was a member of SAD warned him that the SAD party high command wanted to harm him because of his political activities with the Congress party. The appellant claimed that SAD party members had threatened him with violence in the past and that whilst he has been in Australia they have come to his home asking about him.

5    Relevantly, at the end of the Tribunal hearing, the appellant advised the Tribunal that he only wished to remain in Australia until he had repaid his loan at the end of 2012.

THE TRIBUNAL’S DECISION

6    The Tribunal found numerous inconsistencies in the appellant’s main claims and it did not accept his explanation that a friend helped him to write his application. This was because the appellant stated that he reads and writes English on his protection visa application. Instead, the Tribunal found that the appellant had inflated some of his claims and given false information in relation to his other claims in an effort to strengthen his application. On that basis, the Tribunal was not satisfied that the appellant had a well-founded fear of persecution due to any actual or imputed political opinion or his membership of a particular social group.

7    In response to the appellant’s claim regarding his debt to a certain moneylender, the Tribunal was not satisfied that being in debt after borrowing money had the relevant Convention nexus.

8    The Tribunal also considered the criteria for the grant of a protection visa based on complementary protection grounds, but for reasons given above it was not satisfied that there were substantial grounds for believing that there was a real risk that the appellant would suffer significant harm if he was removed from Australia and returned to India.

9    Thus, the Tribunal dismissed the application with costs.

THE PROCEEDINGS IN THE FEDERAL CIRCUIT COURT OF AUSTRALIA

10    In the Federal Circuit Court of Australia the appellant advanced the following grounds:

1.    The Refugee Review Tribunal denied the applicant procedural fairness by reaching adverse conclusions that applicant claims were implausible, being conclusions that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.

2.    The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act.

3.    The Tribunal’s decision was unjust and was made without taking into account the full gravity of applicant circumstances and the consequence of the claim.

4.    The applicants satisfy the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.

11    In Court the appellant complained of being denied more time to remain in Australia until he had repaid his debt.

12    His Honour noted that ground one was not particularised and accordingly that it was unclear which of the adverse conclusions drawn by the Tribunal were implausible and which were not obviously open on the known material. His Honour considered that the decision record indicated that the evidence relied upon was the evidence provided by the appellant himself, and that the inconsistencies were put to the appellant, who had an opportunity to respond and provide further information. In those circumstances, his Honour found no jurisdictional error could be made out.

13    Ground two was similarly not particularised. His Honour noted that it was not for the Court to guess what the appellant meant and that the ground could not be sustained.

14    The third and fourth grounds were dismissed for seeking impermissible merits review.

15    Finally, his Honour addressed the appellant’s oral submission that he should be allowed to stay in Australia until he had repaid his debt. His Honour was of the view that the appellant’s statement indicated that he did not have a well-founded fear of persecution for a Convention reason. His Honour also noted that while there might be some ‘incongruity’ in the Tribunals’ decision relating to the complementary protection criteria, it did not reach the high threshold that was required for a finding of illogicality. Further, his Honour held that the Tribunal’s conclusions were reasonable when regard was had to the numerous inconsistencies in the appellant’s evidence. The application was dismissed with costs.

THE APPEAL PROCEEDINGS

16    By notice of appeal filed on 22 July 2013 the appellant relies on the following grounds:

1.    The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claim and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation.

2.    The learned Judge has dismissed the case without considering the legal and factual errors contained in the decision of the RRT.

SUBMISSIONS OF THE PARTIES

17    The appellant was self-represented. He did not file any written submissions. He did not enter an appearance in Court this morning.

18    The Minister submitted, inter alia, that:

    No meaningful particulars, evidence, or submissions were provided in respect of the grounds of appeal.

    There is no basis for concluding that the Tribunal acted in a manifestly unreasonable way.

    The decision was not so unreasonable that no reasonable person could have reached it.

    Contrary to the appellant’s allegations in the second ground, the reasons of the Federal Circuit Court Judge establish that his Honour gave detailed consideration to the Tribunal’s reasons and findings.

    The Tribunal was not required to accept the appellant’s claims at face value and the weight to be given to his claims and evidence was a matter for the Tribunal to assess as part of its fact-finding function. If the Tribunal could not be satisfied on the basis of the material presented that his claims were genuine then it did not have any duty to make further inquiries.

    In substance the appellant is asking the Court to undertake a review of the merits of the Tribunal’s decision and its assessment.

CONSIDERATION

19    I am satisfied that the appellant was served with notice of the details of today’s hearing.

20    After it became clear that there was to be no appearance by the appellant I temporarily adjourned and asked the Court officer to contact the appellant by telephone. I understand that the appellant is aware of today’s hearing but claimed to be ill. There is no evidence before the Court to support such a claim, and in any event no evidence to explain the absence of the appellant this morning.

21    In my view the Minister’s submissions correctly state the position in relation to this appeal. It is unnecessary for me to replicate the principles I have already summarised.

22    The grounds of appeal relied on by the appellant are pro forma. I note that these grounds, with identical typographical and grammatical errors (including references to the “FM” and “Federal Magistrate” when the decision the subject of the appeal is actually that of a Federal Circuit Court Judge), are identical to grounds of appeal relied upon in many cases in the past two years. In the absence of particularisation or supporting submissions by the appellant, I am unable to identify any relevance of those grounds of appeal to the circumstances of the case before the Court.

23    Further, I am unable to identify any errors in the decision of the Court below, or any jurisdictional error infecting the decision of the Tribunal.

24    The appeal is dismissed with costs.

Associate:

Dated:    13 November 2013