SZRJU v Minister for Immigration

[2016] FCCA 2915

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRJU v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2915

Catchwords:
MIGRATION – Application for review of decision of Administrative Appeals Tribunal (Tribunal) – whether Tribunal made a jurisdictional error in assessing application for review only against complementary criterion in circumstances where the applicant had previously made an application for review which was affirmed before the complementary criterion came into effect – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 417

Cases cited:

MA15 v Minister for Immigration and Border Protection [2015] FCA 1424

SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71

SZVCH v Minister for Immigration & Anor [2015] FCCA 2950

Applicant: SZRJU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2159 of 2015

Judgment of: Judge Manousaridis

Hearing date: 9 November 2016

Date of Last Submission: 9 November 2016

Delivered at: Sydney

Delivered on: 9 November 2016

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents: Ms N Blake of Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2159 of 2015

SZRJU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant, who is a citizen of India, seeks judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (class XA) visa (Protection visa). 

2. The application for review, which was filed at the time the applicant was legally represented, raises one ground of review.  Given the ground that is raised, it is not necessary that I set out in any detail the claims for protection the applicant made.  It is only necessary that I set out some aspects of the applicant’s migration history, and a previous application the applicant made for a Protection visa.

3. The applicant arrived in Australia in November 2006 on a subclass 573 student visa. He was granted two further student visas, the second of which was valid until 15 March 2010. On that day, the applicant applied for a Protection visa, but, on 27 May 2011, a delegate of the Minister refused to grant the visa, and, on 22 March 2012, the Refugee Review Tribunal affirmed the delegate’s decision. The applicant applied to this Court for judicial review of the Refugee Review Tribunal’s decision, but, on 18 October 2016, discontinued the proceeding. The applicant instead applied for Ministerial Intervention under s.417 of the Migration Act 1958 (Cth) (Act).  That application was unsuccessful.

4. On 18 February 2013 the applicant again applied for a Protection visa.  This the applicant was entitled to do because of the decision of the Full Federal Court in SZGIZ v Minister for Immigration and Citizenship.[1] In that application, the applicant claimed fear of harm because of a past association with a person from whom he claimed to have borrowed money and to whom the applicant claimed to have guaranteed loans the person made to friends of the applicant. A delegate of the Minister rejected the application. The applicant applied for review of the delegate’s decision. The Tribunal considered that it could assess the applicant’s claims for protection only against the complementary protection criterion specified by s.36(2)(aa) of the Act. The Tribunal concluded it was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to India, there is a real risk that the applicant would suffer significant harm.

   [1] [2013] FCAFC 71

5. The application for review contains one ground of application, and it is as follows:

   The Tribunal erred by failing to consider whether Australia had protection obligations under the Refugee’s Convention and Protocol in respect of the applicant. 

   Particulars

   The applicant had previously been refused a protection visa under s36(2)(a) of the Migration Act 1958. The applicant then lodged a new application for a protection relying on s36(2)(aa). The Tribunal held that it was precluded from considering the grounds in s36(2)(a), and did not do so in relation to application for a Protection visa. The Tribunal misinterpreted s48A, which operates only to determine whether an application for a protection visa is valid, not what the Tribunal may and may not consider when making its determination.

6. It is apparent this ground relies on the decision of Judge Driver in SZVCH v Minister for Immigration & Anor.[2] In that case, the Refugee Review Tribunal, like the Tribunal in the case before me, reviewed an application for a protection visa by an applicant who had previously unsuccessfully applied for a Protection visa before s.36(2)(aa) of the Act came into effect. Like the case before me, the Refugee Review Tribunal in SZVCH reviewed the application for a review only against s.36(2)(aa) of the Act. Judge Driver held the Tribunal made a jurisdictional error by not considering the application for a review against both s.36(2)(a) and s.36(2)(aa) of the Act. The basis of his Honour’s conclusion was that the delegate considered the application for a Protection visa against both criteria specified in s.36(2)(a) and s.36(2)(aa) of the Act.

   [2] [2015] FCCA 2950

7. The decision and reasoning of Judge Driver was overturned by the Full Federal Court in Minister for Immigration and Border Protection v SZVCH.[3]  The plurality agreed with Markovic J for the reasons her Honour gave in AMA15 v Minister for Immigration and Border Protection[4] that Judge Driver erred in holding that the Tribunal was required to assess the application before it against both s.36(2)(a) and s.36(2)(aa). Her Honour said:[5]

   The Second PV Application was valid because it was based on the complementary protection criteria. Accordingly it could only be granted if the Minister was satisfied that the “other criteria prescribed” by the Act or the regulations were satisfied. Those other criteria would, it follows, be those relevant to s 36(2)(aa). In other words consideration of s 36(2)(a) had no part to play.

   The question that then arises is, whether in circumstances where the delegate having turned her mind to s 36(2)(a) and made findings in relation to that criteria, the Tribunal was then obliged to do so as found by Driver J in SZVCH. With respect, I do not think it was so obliged.

   [3] [2016] FCAFC 127

   [4] [2015] FCA 1424 at [42]-[48]

   [5] [2015] FCA 1424 at [44]-[45]

8. The applicant is unrepresented.  At the hearing before me, I explained to him the nature of the ground stated in his application, that it was based on a decision of Judge Driver in SZVCH, but that the decision was held by the Full Court of the Federal Court to be wrong.  I indicated that, subject to anything that he may wish to say, I proposed that I would order that his application be dismissed.  I adjourned the matter for a few minutes to permit the application to gather his thoughts and to consider whether he wished to make any further submissions.

9. When I resumed, the applicant said that his claim before the Tribunal was not that he was a refugee, but it was a claim based on complementary protection.  I indicated to the applicant that that was the criterion against which the Tribunal assessed the applicant’s application for review.  The applicant said that he understood that his claim was rejected because of credibility findings.  I am not sure that that is correct. 

10. When I asked the applicant what complaints he had about the manner in which the Tribunal dealt with his application, he, with refreshing frankness, said he had no complaints.  He did say that he perhaps deserved a chance for the matter to be reconsidered.  He noted that he has spent many years in Australia and that it would be difficult for him to return to India.  As I informed the applicant, I have sympathy with his desire not to return to India, but I did inform him that this Court has limited jurisdiction which is restricted to determining whether the Tribunal made a jurisdictional error. In those circumstances, the matters which the applicant put before me do not disclose any jurisdictional error by the Tribunal. 

11. Given the case on which the stated ground in the application relies has been overturned, it follows that that ground cannot succeed.  Given also that the applicant has raised nothing in his submissions which indicates the Tribunal made a jurisdictional error, it follows that I must make an order dismissing the applicant’s application, and I propose to do so.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 11 November 2016