SZOAH v Minister for Immigration and Border Protection
[2018] FCA 1902
•26 November 2018
FEDERAL COURT OF AUSTRALIA
SZOAH v Minister for Immigration and Border Protection [2018] FCA 1902
Appeal from: SZOAH Ors v Minister for Immigration Anor [2018] FCCA 1476 File number: NSD 890 of 2018 Judge: MCKERRACHER J Date of judgment: 26 November 2018 Date of publication of reasons: 28 November 2018 Catchwords: MIGRATION – protection visas – where decision on review concerns the complementary protection criterion – where the Federal Circuit Court dismissed the applications for judicial review – where no jurisdictional error
Held: appeal dismissed
Legislation: Migration Act 1958 (Cth) ss 36(2)(aa), 36(2A), 48A, 424A, 424A(1)
Migration Amendment (Complementary Protection) Act 2011 (Cth)
Cases cited: DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190
SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235
SZOAH & Ors v Minister for Immigration & Anor [2010] FMCA 254
Date of hearing: 26 November 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 27 Counsel for the Appellants: The Appellants appeared in person with the assistance of an interpreter Counsel for the First Respondent: Mr HPT Bevan Solicitor for the First Respondent: DLA Piper Australia Counsel for the Second Respondent: The Second Respondent submits to any order of the Court, save as to costs ORDERS
NSD 890 of 2018 BETWEEN: SZOAH
First Appellant
SZOAI
Second Appellant
SZOAJ
Third Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
MCKERRACHER J
DATE OF ORDER:
26 NOVEMBER 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellants pay the costs of the first respondent, to be assessed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
REVISED FROM THE TRANSCRIPTMCKERRACHER J:
In this matter, the appellants appeal from a decision of the Federal Circuit Court of Australia in which that Court dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal: SZOAH Ors v Minister for Immigration Anor [2018] FCCA 1476. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection to refuse to grant the appellants protection visas.
BACKGROUND
The appellants are citizens of India. The first appellant appears this morning and has made some submissions making it clear that he does not want to go back to India and that he would not have left India if the matters that he had complained of had not happened. The other appellants are members of the first appellant’s family. The second appellant is the mother of their child, the third appellant.
The first appellant made claims for protection on the second appellant and third appellant’s behalf, and their claims have depended on his claims. The appeal concerns second applications for protection visas, lodged 28 September 2012, which were confined to considerations of the complementary protection criterion under s 36(2)(aa) of the Migration Act1958 (Cth).
The appellants had previously applied for protection visas on 17 March 2009, but these applications were refused by a delegate of the Minister. This decision was reviewed and affirmed by the Refugee Review Tribunal (as the Tribunal then was) on 13 October 2009. On 7 April 2010, the Federal Magistrates Court dismissed the appellants’ application for judicial review: SZOAH & Ors v Minister for Immigration & Anor [2010] FMCA 254.
The appellants lodged the second applications the subject of this appeal. These second applications were based upon the complementary protection criterion introduced into the Migration Act by the Migration Amendment (Complementary Protection) Act 2011 (Cth). While the Department of Immigration and Citizenship initially regarded the second applications as invalid pursuant to s 48A of the Migration Act, the Department proceeded to process the second applications following the Full Court’s decision in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235. By letter dated 28 August 2014, the appellants were notified that their second applications had been refused on the basis they did not satisfy the requirements prescribed under s 36(2) of the Migration Act. The appellants sought review of this decision in the Tribunal.
BEFORE THE TRIBUNAL
On 16 December 2016, the Tribunal affirmed the decision not to grant the appellants protection visas.
In its Statement of Decision and Reasons, the Tribunal set out the relevant law and the factual background to the appellants’ second applications before turning to the grounds upon which claims for protection were made.
Broadly stated, the first appellant claimed to fear harm in India arising from his political involvement in India, especially with the ‘Indra’ Congress Party. He claimed that he was targeted by political opponents, principally from Punjabi nationalists and the Akali Dal, and that false allegations and charges were made against him. The first appellant further claimed that by virtue of corruption and inefficiencies, the Indian authorities would not protect him.
The Tribunal confined its consideration to complementary protection criterion. It found the first appellant’s evidence ‘confusing and inconsistent’, for which it considered there was no ‘satisfactory explanation’. The Tribunal observed that one of the documents provided by the first appellant supported his claim to have been charged with murder in 1999. However, the Tribunal had difficulty getting the first appellant to clearly describe what he had allegedly done wrong which gave rise to the second case he claimed had been brought against him in 2006.
The Tribunal observed the first appellant’s difficulty in providing more detail about the 2006 charge and did not accept that he ‘would have forgotten [the] circumstances’ surrounding the 2006 case.
The Decision records that the first appellant said ‘that he has not suffered any harm until now but cannot trust his enemies’.
The Tribunal identified several aspects of the first appellant’s claims that were inconsistent with his claimed fear of harm or there being a risk of harm, including that he has not suffered harm because of the claimed 1999 and 2006 charges between these events and his departure from India. His return to India in 2008 was also regarded as inconsistent with a claim to fear significant harm.
Further, the Tribunal referred to the first appellant’s ‘lack of knowledge of the Indian political system’ and found his ‘vague and generalised evidence about his own political work when questioned’ to be ‘inconsistent with the knowledge of someone who claimed’ to have his political experience and claimed that this political experience brought him adverse attention.
The Tribunal highlighted inconsistencies in the first appellant’s account as to his residency, concluding that the first appellant’s evidence was not credible.
The Tribunal had detailed regard to the documents provided by the first appellant and did not accept that they were genuine or that they assisted his claims for protection.
Based upon the adverse credibility findings (including with respect to the Court documents submitted), the Tribunal rejected each of the first appellant’s claims. The Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the first appellant being removed to India, there was a real risk he would suffer harm. The appellants were found not to satisfy the criteria for a protection visa before the Tribunal.
FEDERAL CIRCUIT COURT
The appellants sought review in the Federal Circuit Court. The appellants raised three grounds of review before the primary judge:
1.The Tribunal misconstrued the risk and fear of significant harm as set out, in s36(2A) [Migration Act].
The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the [appellants] upon his returns to India.
2.The [Tribunal] failed to comply with the mandatory requirement under section 424A (read with section 424AA) of the Migration Act to give the [first appellant] clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the [first appellant] understood why that information was relevant to the review and the consequence of its being relied upon , and to invite the [first appellant] to comment upon or response to that information.
Particular:
The Tribunal did not issue any written invitation under section 424A of the [Migration Act] and. made no attempt to, and did not, comply with the requirements set out in .section 424AA of the [Migration Act].
3.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].
Ground 1 and ground 2 concerned allegations of error under, respectively, s 36(2A) and s 424A of the Migration Act. Both grounds were rejected by the primary judge. The primary judge rejected the first ground because no question under s 36(2A) arose given the Tribunal’s factual findings rejecting the first appellant’s claims which supported the contention that he faced a real risk of significant harm within the meaning of s 36(2)(aa), understood in light of s 36(2A), were rejected by the Tribunal.
Turning to the second ground, his Honour considered there was no relevant ‘information’ that enlivened the obligation under s 424A(1) and, further, even if the information fell within the provision, the primary judge considered it would have fallen within the exception of s 424A(3), relying on SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ (at [17]). No jurisdictional error was found by the primary judge. Neither ground 1 nor ground 2 are a subject of the appeal to this Court.
Ground 3 contended that the Tribunal ‘had no jurisdiction’ because its ‘reasonable satisfaction’ was not arrived at in accordance with the statute. The primary judge noted that it was an assertion made to that Court ‘on many occasions’ and considered that, without particulars, it was ‘meaningless’.
His Honour dismissed this ground, stating (at [17]-[18]):
17.The Tribunal’s decision was based upon its rejection of the [first appellant’s] factual claims. That rejection was based upon a close analysis of the [first appellant’s] written claims, his oral claims and the documents provided by the [first appellant] in support of both of those claims.
18.Each of the reasons given by the Tribunal in connection with those matters showed a close attention to that material and was based upon a reasonable assessment of that material. The conclusion was eminently open to it on the material.
BEFORE THIS COURT
The grounds of appeal to this Court are on a more narrow basis, and, as I have explained to the first appellant, the question for me is not the merits of the decision so much as the question of whether or not there was an error of law on the part of the decision of the Federal Circuit Court. I have read out to the first appellant the grounds of appeal and invited him to address them.
On appeal to this Court, the appellants rely on two grounds:
1.The Honourable [primary judge] failed to consider that 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.
2.The learned [primary judge] has dismissed the case without considering the legal and factual errors contained in the decision of the [Tribunal].
In relation to both grounds of appeal, it must be noted there is no particularisation at all; they do not specify nor direct the Court’s attention to the nature of the jurisdictional error alleged by the appellants. Failure to particularise a ground of review in itself may be sufficient basis for it to be dismissed (see, for example, DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784, per Colvin J (at [4]-[8] and the cases therein cited) but, obviously, the courts will seek to explore where a litigant is unrepresented what might be meant by the grounds concerned. However, having regard to the grounds as argued today, the appellants have failed to demonstrate appellable error.
The first ground of appeal repeats the third ground of review before the Federal Circuit Court. No error on the part of the primary judge, nor of the Tribunal, is established. As his Honour correctly identified, the Tribunal gave careful attention to the evidence before it and rejected the first appellant’s claims at a factual level. This was fatal to the appellants’ claims. The primary judge’s rejection of this ground of review was correct, for the reasons his Honour set out.
The second ground of appeal asserts that the primary judge failed to consider ‘the legal and factual errors’ within the Tribunal’s Decision. There are no particulars and no submissions have been filed by the appellants to support this ground. Oral submissions did not support the ground. The primary judge’s reasons reveal appropriate consideration of the grounds before his Honour and the arguments as they were contended. His Honour performed the ‘legal’ task before him; an assessment of whether the Tribunal’s Decision was affected by jurisdictional error in the manner contended. An assessment of the merits of the Tribunal’s Decision was not the Federal Circuit Court’s task. Having considered the Tribunal’s Decision and the grounds of review raised, his Honour was not satisfied that there was any jurisdictional error in the Tribunal’s decision. The legal issues before the Federal Circuit Court were duly addressed and there were no factual errors, specifically none arising to the level of jurisdictional error. This ground of appeal must be dismissed.
CONCLUSION
It follows, as neither of the grounds of appeal have succeeded, the appeal is dismissed with costs.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. Associate:
Dated: 28 November 2018
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