SZRNN v Minister for Immigration and Citizenship

[2013] FCA 482

FEDERAL COURT OF AUSTRALIA

SZRNN v Minister for Immigration and Citizenship [2013] FCA 482

Citation:		SZRNN v Minister for Immigration and Citizenship [2013] FCA 482
Appeal from:		SZRNN v Minister for Immigration & Anor [2013] FMCA 98
Parties:		SZRNN v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 407 of 2013
Judge:		BARKER J
Date of judgment:		20 May 2013
Catchwords:		MIGRATION – appellant claimed well-founded fear of persecution by Maoists on account of imputed political opinion as member of Nepali Congress Party – whether legal error by Tribunal – whether Tribunal failed to deal with appellant’s claims
Legislation:		Migration Act 1958 (Cth) s 36(2)(a), s 36(2)(aa), Pt 7 Div 4, s 474(2)
Cases cited:		Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476
Date of hearing:	20 May 2013
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	22
Counsel for the Appellant:	The Appellant appeared in person with the assistance of an interpreter
Counsel for the First Respondent:	Ms K Hooper
Solicitor for the First Respondent:	DLA Piper Australia

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 407 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZRNN
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BARKER J
DATE OF ORDER:	20 MAY 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs of the appeal to be taxed, if not agreed.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 407 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZRNN
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BARKER J
DATE:	20 MAY 2013
PLACE:	SYDNEY

REASONS FOR JUDGMENT

OVERVIEW

1. The appellant appeals from the judgment and orders of the Federal Magistrates Court (now the Federal Circuit Court) dated 18 February 2013 dismissing an application for judicial review of a decision of the second respondent (Tribunal) dated 30 April 2012.  The Tribunal had earlier affirmed a decision of a delegate of the first respondent (Minister) on 8 August 2011 to refuse to grant the appellant a Protection (Class XA) visa.

2. For the reasons that follow, the appeal should be dismissed.

   PROTECTION VISA APPLICATION

3. The appellant is a male citizen of Nepal who arrived in Australia on 19 April 2009. The appellant applied for a protection visa on 14 June 2011.

4. The appellant claimed to fear persecution in Nepal by Maoists by reason of his imputed political opinion as a member of the Nepali Congress Party (NPC).

5. A delegate of the Minister refused the appellant’s protection visa application on 8 August 2011. 

   REVIEW APPLICATION IN THE REFUGEE REVIEW TRIBUNAL

6. The appellant sought review of the delegate’s decision by application to the Tribunal lodged on 30 August 2011.

7. The appellant attended hearings before the Tribunal on 10 November 2011 and 16 April 2012.

8. By decision dated 30 April 2012, the Tribunal affirmed the decision under review, refusing to grant the appellant a protection visa. 

9. The Tribunal was not satisfied that the appellant was a truthful witness.  In so finding, the Tribunal placed weight on inconsistencies and omissions in the appellant’s evidence, his delay in applying for a protection visa, and his earlier actions in seeking to go to the United States.  The Tribunal particularised inconsistencies and omissions in the appellant’s evidence and claims.  The Tribunal rejected the entirety of the appellant’s material claims.

10. The Tribunal further found that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant’s removal, there was a real risk that the appellant would suffer significant harm.

    JUDICIAL REVIEW IN THE FEDERAL MAGISTRATES COURT

11. The appellant sought judicial review in the Court below by an application filed on 4 June 2012.  The application contained four grounds alleging, in summary, that the Tribunal had failed to satisfy statutory requirements, denied the appellant natural justice, failed to consider the appellant’s evidence fairly in making its adverse credibility findings, and had failed to act in good faith.

12. The Federal Magistrates Court heard the application on 18 February 2013 and published written reasons later that day.  In dismissing the application, the Federal Magistrate (as her Honour then was) observed that each of the appellant’s four grounds was absent particulars, evidence and submissions.

13. Her Honour in the Court below held that to a large extent the appellant sought merits review, that the Tribunal had complied with the requirements of Div 4 of Pt 7 of the Migration Act 1958 (Cth) (Act) and had considered the elements of the appellant’s claims and made findings of adverse credibility open to it, and that an absence of good faith was not proven.

    APPEAL TO THIS COURT

14. By notice of appeal filed on 8 March 2013, the appellant states that he does not agree with her Honour’s judgment as she failed to find legal error by the Tribunal, and that the Tribunal failed to deal with his claims.

15. The appellant did not support his appeal with any materials but at the hearing made oral submissions in support of the appeal.

16. A decision of the Tribunal is liable to be set aside where it is shown to have fallen into jurisdictional error, for example, where there has been “a failure to discharge ‘imperative duties’ or to observe ‘inviolable limitations or restraints’”: Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 at [76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ). If an applicant fails to establish jurisdictional error, the decision of the Tribunal is a “privative clause decision” within the meaning of s 474(2) of the Act and not amenable to judicial review.

17. The Federal Magistrate could not detect any jurisdictional error as claimed.  On any view, her Honour was correct to reject each of the appellant’s grounds for the reasons given.  

18. As to the first and third grounds of appeal, a consideration of the Tribunal’s reasoning concerning whether the appellant was a person to whom Australia owed protection obligations under ss 36(2)(a) and 36(2)(aa) of the Act disclosed no error and her Honour was correct to so find.

19. Her Honour was also correct to find that the Tribunal complied with the procedural obligations in Div 4 of Pt 7 of the Act.

20. As to the second ground, the Tribunal comprehensively dealt with and rejected the elements of the appellant’s claims.  It made findings of fact reasonably open to it, and for which it gave reasons.  As her Honour held in the Court below, a fair reading of the Tribunal’s decision reveals that the Tribunal understood and considered the appellant’s claims, and made findings based on the evidence and material before it.  No appellable error by her Honour in so finding is disclosed.

21. The oral submissions made at the hearing all went to the merits of the Tribunal’s decision and how the appellant could have provided additional material if he had been required.  Notwithstanding these assertions, no error of law by her Honour in the Court below, or jurisdictional error by the Tribunal, is indicated.

    CONCLUSION AND ORDERS

22. The appeal should be dismissed with costs.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.

Associate:

Dated:       22 May 2013