SZRSN v MIAC

Case [2013] FCA 751

FEDERAL COURT OF AUSTRALIA

SZRSN v Minister for Immigration and Citizenship [2013] FCA 751

Citation: SZRSN v Minister for Immigration and Citizenship [2013] FCA 751
Appeal from: SZRSN v Minister for Immigration and Anor [2013] FMCA 78
Parties: SZRSN v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number: NSD 441 of 2013
Judge: MANSFIELD J
Date of judgment: 6 August 2013
Date of hearing: 17 May 2013
Place: Adelaide
Division: GENERAL DIVISION
Category: No catchwords
Number of paragraphs: 50
Counsel for the Appellant: The appellant appeared in person
Counsel for the Respondents: H Younan
Solicitor for the Respondents: Sparke Helmore

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 441 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN:

SZRSN
Appellant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

MANSFIELD J

DATE OF ORDER:

6 AUGUST 2013

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant pay to the first respondent costs of the appeal.

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 441 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN:

SZRSN
Appellant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

MANSFIELD J

DATE:

6 AUGUST 2013

PLACE:

ADELAIDE

REASONS FOR JUDGMENT

  1. The appellant on 2 May 2013 applied for a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth) (the Act). On 1 March 2013, Driver FM (now Judge Driver) dismissed an application to the Federal Magistrates Court (now the Federal Circuit Court) to review a decision of the second respondent (the Tribunal): see SZRSN v Minister for Immigration and Citizenship [2013] FMCA 78. This is an appeal from the judgment and orders of the Federal Magistrate. It is brought pursuant to s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth).

  2. The decision of the Tribunal of 30 June 2012 which affirmed the refusal of a delegate of the first respondent not to grant the appellant a protection visa stands unless this appeal is successful.

  3. For reasons which are set out below, the appeal is dismissed.

  4. I record that, when this appeal was called on for hearing on 17 May 2013, the appellant appeared in person. He said he wanted an adjournment to better prepare for the hearing, and that he hoped it was listed only for directions. He said he had attended only because on 16 May 2013 he had been given the written outline of submissions of the first respondent.

  5. Upon being shown two earlier letters pointing out the hearing date, he did not dispute that he had received them. He then said he was trying to get representation for the appeal, but it appeared from what he said that those efforts had only very recently…

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AGLC
SZRSN v MIAC [2013] FCA 751
Case
[2013] FCA 751
Decision Date

CaseChat Overview and Summary

In the matter of SZRSN v MIAC, the appellant, a New Zealand citizen who arrived in Australia in 1995, faced a visa cancellation on character grounds following imprisonment for robbery. Despite multiple unsuccessful appeals and applications, he sought a protection visa based on fears of harm from his father and family in New Zealand. The Administrative Appeals Tribunal (AAT) denied his application, a decision upheld by the Federal Circuit Court. The appellant then sought judicial review of the AAT's decision, raising issues of procedural fairness, compliance with the Migration Act, and a perceived failure to exercise discretion regarding the impact of separation from his children.

The court addressed the appellant's claims, confirming that the AAT had followed procedural fairness by providing him with notice of the issues and an opportunity to respond. The court also noted that the AAT was not obligated to consider all evidence presented but only that relevant to the protection visa application. Regarding the alleged failure to exercise discretion, the court found that while the AAT briefly considered the complementary protection criterion, it did not deem the forced separation from his children as "significant harm" under the Act's definition. The court concluded that the AAT had adequately exercised its discretion and considered the relevant factors.

Ultimately, the Federal Court dismissed the appeal, affirming the AAT's decision. The appellant was ordered to pay the respondent's costs of the appeal. The judgment underscores the importance of adhering to procedural fairness and ensuring that all relevant factors, particularly those pertinent to the protection visa application, are considered by the AAT. The court's decision highlights the stringent criteria that must be met for a protection visa application to succeed, particularly concerning the definition and scope of "significant harm."

Orders

Orders of the court

1. The appeal is dismissed.

2. The appellant pay to the first respondent costs of the appeal.

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

Background

Background to the litigation

His application for an adjournment was refused, as I was not satisfied that the appellant had not been aware of the hearing date nor that, if he was given an adjournment, there was any real prospect that he would obtain legal representation. He was offered, and accepted the opportunity to put written submissions to the Court, and he nominated a period of three weeks to do so. He has not taken up that opportunity.BACKGROUND The appellant was born in 1984. He is a New Zealand citizen. He arrived in Australia on 13 July 1995 with his mother and brother, on a Special Category visa, as is generally granted to New Zealand citizens who arrive in Australia and who do not hold a permanent visa: s 32(2) of the Act. That visa was cancelled on 18 October 2010 on character grounds, pursuant to s 501 of the Act. The decision to cancel the visa was made following the appellant’s serving a term of imprisonment for the offence of robbery with an offensive weapon. The Administrative Appeals Tribunal (the AAT) reviewed and upheld the cancellation decision. An appeal against the AAT decision was also unsuccessful: [Name omitted] v Minister for Immigration and Citizenship [2011] FCA 1168. The appellant also made an application for ministerial intervention pursuant to s 417 of the Act but that application was denied. The appellant then lodged the application for a protection visa under the Act. That application was based on him fearing harm if he were to return to New Zealand from his father and other members of his family in New Zealand, based on previous violence he had suffered from them when he was much younger, as well as the fact that he has no family or friends in New Zealand, other than his father who he has no contact with and no wish to contact; that he has not returned to New Zealand since he arrived in Australia on 13 July 1995; that he has no skills or employment history that will help him gain employment in New Zealand; that he has a criminal record; that he will not be able to find a job, find accommodation, or survive in New Zealand; and that there is general violence in New Zealand. More generally, and understandably, the appellant wanted to remain in Australia where he could stay with his partner and his children, and care for them.THE TRIBUNAL DECISION On 30 June 2012, the Tribunal affirmed the delegate’s decision to refuse the appellant’s protection visa application. The Tribunal took into account in assessing the appellant’s claim that he had been badly injured in a fight in Australia in 2004, that he had suffered brain damage as a result, and that the brain damage had numerous effects (such as making him prone to migraines, ‘fidgety’, and overtired) which affected his ability to talk to the Tribunal. The Tribunal then addressed his various claims. It did not accept that he had experienced any harm in New Zealand. The appellant’s claims of “being bashed almost to death by his father” were not credible and were not accepted. Consequently, it was not satisfied that there was a real chance of him suffering serious harm from his father or his father’s family if he returned.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Consequently, the Tribunal concluded that the appellant is not a person to whom Australia has protection obligations under the Convention. THE FEDERAL MAGISTRATES COURT DECISION The appellant’s grounds for review of the Tribunal decision were:1.When the Tribunal made its decision on 30 June 2012 to affirm the delegate’s decision, it was made in denial of procedural fairness and natural justice to me.2.Procedures that were required to be followed in the making of the decisions in accordance with the Migration Act 1958 were not observed or complied with.3. The Tribunal constructively failed to exercise discretion. In respect of the procedural fairness grounds (grounds 1 and 2), the Federal Magistrate reviewed the conduct of the hearing before the Tribunal at [32]-[37] of his judgment. The Federal Magistrate concluded that the Tribunal gave the appellant a fair hearing, that the appellant was put on notice as to “the dispositive issues” and given a chance to respond to them, that the Tribunal considered all of the appellant’s claims, that while the Tribunal did not refer to all the appellant’s material in its reasons, that was justifiable in light of the irrelevance of that material and the fact that the Tribunal owes no obligation to refer to every piece of evidence before it. The Federal Magistrate therefore concluded that the procedural fairness requirements of ss 424A and 425 of the Act had been followed. In respect of the ‘constructive failure to exercise discretion’ ground (ground 3), the Federal Magistrate said that there was an “issue of significance [as to] whether the Tribunal constructively failed to exercise its jurisdiction in relation to its consideration of the complementary protection criterion” because the Tribunal’s reasons did not address the issue of the appellant’s separation from his children: [38]. The “complementary protection criterion” is a reference to the criterion for a protection visa set out in s 36(2)(aa) of the Act. That paragraph states that it is a criterion for a protection visa that the applicant is:a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm. “Significant harm” is defined by s 36(2A) of the Act to be any of the following: arbitrary deprivation of life, subjection to the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. The definition of “significant harm” in s 5(1) of the Act makes it clear that if an act does not fall within the categories listed in s 36(2A), it is not “significant harm” – that is, the list of categories is an exhaustive one. It was accepted by the Federal Magistrate that the complementary protection criterion was considered by the Tribunal albeit briefly: [38]. The question which his Honour then considered is whether the forced separation of the appellant from his children may have constituted “significant harm” for the purposes of s 36(2)(aa): [39]. The Tribunal was not satisfied that that was the case.

Ratio Decidendi

Legal Principle Established

As noted, the appellant was unrepresented in this Court. He has not filed any outline of submissions or any other document in support of his appeal. Contrary to the comment at the end of the first ground of appeal, the appellant has not provided particulars of that ground. The respondent was represented by Ms Younan of counsel. Her written outline of submissions was filed in advance of the hearing.CONSIDERATION It is convenient to deal first with ground 2 of the appeal. That ground is an attack on the Federal Magistrate’s reasoning as to whether the Tribunal afforded procedural fairness to the appellant. The Federal Magistrate considered this issue at [32]-[37] of his judgment. The requirements of procedural fairness that the Tribunal must observe are set out in Division 4 of Part 7 of the Act: s 422B. Relevantly, s 424 provides that the Tribunal may get any information it considers relevant, including by inviting a person to give information. Once that information is received, it must be considered. Information was given by the appellant in this case in both oral and documentary form. Not all of the documents given to the Tribunal were referred to in its reasons. The Federal Magistrate correctly observed that fact does not of itself demonstrate error on the part of the Tribunal. It is well established that the Tribunal is not obliged to refer in its reasons to every item of evidence that was before it: Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402, 414; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 593; Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396, [79]; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630, [46]; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, [14]; SZEHN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1389, [58]. In this case, as the Federal Magistrate noted, much of the material submitted by the appellant did not relate in any obvious way to the appellant’s eligibility for a protection visa. Instead, the material related to the decision to cancel the appellant’s former visa on character grounds. That decision was not the subject of the application for review before the Tribunal. It was unnecessary for the Tribunal to refer to it. The Federal Magistrate found that there was no information used by the Tribunal to which the procedural requirements of s 424A of the Act attached. That finding was correct. The only information before the Tribunal that could have been characterised as “the reason, or a part of the reason, for affirming the decision that is under review” was information that fell within s 424A(3) (information provided by the appellant, and information not specific to the appellant), and was therefore exempt from the requirements set out in s 424A(1). It appears from [54]-[62] of the Tribunal’s reasons that the Tribunal raised with the appellant particulars of two pieces of information that the Tribunal considered “would be the reason, or a part of the reason, for affirming the decision that is under review”, apparently pursuant to s 424AA(a). The two pieces of information were (1) that the appellant had been in Australia for 17 years but only now made an application for a protection visa; and (2) that the appellant had originally stated on a form that he had not experienced any harm in New Zealand, but he had then stated at the Tribunal hearing that he had in fact experienced harm in New Zealand. The procedural requirements of s 424AA(b) were satisfied in relation to those pieces of information. The Tribunal’s reasons show that it tried to ensure the appellant understood those pieces of information and their consequences. It gave the appellant additional time to respond to those pieces of information and to comment on the pieces of information.