SZSEV v Minister for Immigration, Multicultural Affairs and Citizenship
[2013] FCA 794
•9 August 2013
FEDERAL COURT OF AUSTRALIA
SZSEV v Minister for Immigration, Multicultural Affairs and Citizenship
[2013] FCA 794
Citation: SZSEV v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 794 Appeal from: Application for leave to appeal: SZSEV v Minister for Immigration & Anor [2013] FCCA 96 Parties: SZSEV v MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 725 of 2013 Judge: COWDROY J Date of judgment: 9 August 2013 Legislation: Federal Court of Australia Act 1976 (Cth) s 24(1A)
Migration Act 1958 (Cth) s 36(2)
Federal Circuit Court Rules 2001 (Cth) rr 44.12(1), 44.12(2)Cases cited: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259Date of hearing: 7 August 2013 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 19 Counsel for the Applicant: The applicant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Ms M Stone of DLA Piper Counsel for the Second Respondent: The second respondent did not appear
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 725 of 2013
BETWEEN: SZSEV
Applicant
AND: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
COWDROY J
DATE OF ORDER:
9 AUGUST 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The Applicant pay the costs of the First Respondent of this application.
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 725 of 2013
BETWEEN: SZSEV
Applicant
AND: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
COWDROY J
DATE:
9 AUGUST 2013
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an application for leave to appeal from a decision of the Federal Circuit Court of Australia (‘the FCCA’) dismissing an application for review of a decision of the second respondent (‘the Tribunal’) dated 17 October 2012.
BACKGROUND
The applicant is an Indian citizen who arrived in Australia in December 2011. On 24 January 2012 the applicant applied for a protection (Class XA) visa. On 21 May 2012 a delegate (‘the delegate’) of the first respondent (‘the Minister’) made a decision to refuse the application for the visa.
The applicant, who was born in the state of Kerala, claimed to be a Hindu and a supporter of the Communist Party of India (Marxist) (‘CPIM’). The basis of his protection visa application is that he claims to fear political persecution if he returns to India as a result of the following alleged facts:
(a)The applicant became involved with the CPIM in year 10 after being approached by the Students’ Federation of India (the student wing of the CPIM);
(b)The applicant took part in CPIM activities to promote the popularity of the party, with the result that his personal profile both within the CPIM and the community grew.
(c)Due to such involvement, Muslims associated with the Congress Party attacked him and threatened to kill him.
(d)The applicant fled to Muscat and lived there for approximately the next 19 years where he established an electrical repair shop. During this time he returned to India regularly to visit his father.
(e)The applicant returned permanently to India in 2011 to campaign on behalf of a CPIM candidate in an election.
(f)After the election, in which the CPIM candidate was successful but the Congress Party formed government, people associated with the Congress Party members threatened to kill him and demanded he pay them money. At this point, the applicant again fled India.
THE TRIBUNAL’S DECISION
Following the decision of the delegate on 21 May 2012, the applicant sought review of that decision before the Tribunal. The Tribunal found that the applicant was not a credible witness. The Tribunal found some of the applicant’s claims to be vague, and noted that the applicant had a lack of knowledge of the particulars of his own claims, including the precise name of the CPIM.
The Tribunal also found some of the applicant’s claims to be implausible. The Tribunal did not accept that the applicant had ever been threatened or harmed as a consequence of his political opinion, nor that the applicant had the political profile he claimed. For these reasons, the Tribunal found that the applicant would not face a real risk of persecution for a Convention reason pursuant to s 36(2)(a) of the Migration Act 1958 (Cth) (‘the Act’), or a risk of significant harm as defined by the complementary protection criterion contained within s 36(2)(aa), should he return to India. Accordingly, the decision of the delegate to refuse the visa was affirmed.
THE PROCEEDING IN THE FEDERAL CIRCUIT COURT
The applicant challenged the Tribunal’s findings in the FCCA, relying on the following grounds of review:
1.The Tribunal denied the applicant procedural fairness by reaching adverse conclusions that were implausible and by not giving the applicant opportunity to comment on these conclusions.
2.The Tribunal did not give the country information on which it intended to rely to the applicant before the hearing.
3.The Tribunal’s ‘reasonable satisfaction’ was not arrived at in accordance with the Act.
4.The Tribunal’s decision did not take into account the full gravity of the claims.
5.The applicant satisfies the Convention requirements.
At a show cause hearing pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (‘the FCCA Rules’), his Honour noted that the applicant failed to make any submissions to support these grounds. His Honour found that without submissions or particulars the grounds lacked any substance and did not reveal any jurisdictional error on the part of the Tribunal, nor was there any evidence that procedural fairness was not afforded to the applicant. His Honour further found that the fourth ground invited the Court to engage in impermissible merits review.
As his Honour concluded that the grounds failed to demonstrate an arguable case of jurisdictional error, his Honour dismissed the application pursuant to r 44.12(1)(a) of the FCCA Rules.
THE LEAVE APPLICATION
Rule 44.12(2) of the FCCA Rules specifies that a dismissal under r 44.12(1) is interlocutory. The applicant therefore requires, and indeed sought, leave to appeal pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth). The application for leave to appeal was accompanied by a draft notice of appeal which set out the following two grounds of review:
1.The [Judge] failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claims [sic] and ignoring the aspect of persecution and harm in terms of [s 91R] of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation [sic].
2.The learned [Judge] has dismissed the application without considering the legal and factual errors contained in the decision of the [Tribunal].
HEARING OF APPLICATION
The applicant appeared unrepresented but assisted by an interpreter. Although the applicant did not file written submissions, upon invitation by the Court he made oral submissions at the hearing. The applicant said that what he told the Tribunal was correct; that the Tribunal did not consider his case; and that he wished to provide more evidence to the Court. The applicant also said that the Tribunal did not investigate what was happening in India regarding the political activities there.
The applicant further claimed that if he returned to India, revenge would be taken on him and he would be killed. He referred to the competing political parties and stated that the ruling party, namely the Congress Party, was against the party he supported, being the CPIM.
The applicant was not able to offer any further details nor to have provided particulars which might have supported either of his two grounds of proposed appeal.
In an application for leave to appeal, it is essential that an applicant demonstrate that there is sufficient doubt as to the correctness of the judgment sought to be appealed from so as to warrant review and further, that if the judgment below is assumed to be wrong, substantial injustice will be suffered by the applicant if the leave to appeal were refused: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-400.
No particulars of any kind have been provided to support the broad and general contentions raised by the applicant. As to first ground, it is plain that the applicant seeks to have a merits review of the Tribunal’s findings. This Court has no jurisdiction to entertain a merits review of the factual findings of the Tribunal: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 and 291-292. The Tribunal was entitled to make the findings it did on the evidence before it and draw the conclusion that the applicant before it was not at risk of harm if he returned to India.
As to the submission that the Tribunal should have investigated the situation in India, the Tribunal member put numerous questions to the applicant to test his knowledge of the Indian political system. The Tribunal concluded that the applicant had only a low level of knowledge of the relevant political parties. The Tribunal also noted that the applicant had spent time in Muscat but had returned to India of his own accord in 2011.
It was in part because of the vague knowledge of the applicant concerning the political parties that the Tribunal concluded that it was not satisfied of the credibility of the applicant’s claims. The Tribunal noted that the applicant had not claimed to have occupied a position on any executive committee of any political party. The Tribunal was not satisfied that the applicant was ever threatened or harmed because of his political opinion in the past, nor that he would suffer harm in the future. The claims as raised by the applicant did not fall within the circumstances recognised by the High Court in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] that would require the Tribunal to make further inquiries on behalf of the applicant, or to investigate his claim.
The first ground of appeal also refers to an alleged failure by the Tribunal to comply with its statutory obligations, but no detail was contained to enable the Court to identify any breach or breaches as alleged. The Court has examined the Tribunal’s decision which appears to be comprehensive. It does not appear that there has been any failure to observe any statutory requirements. Further, it is impossible to determine that the Tribunal acted in a ‘manifestly unreasonable way’. Accordingly this ground of proposed appeal could not succeed.
It is asserted in the second ground of appeal that the learned Judge dismissed the matter before him without considering ‘the legal and factual errors’ of the Tribunal. No such errors were identified by the applicant, nor can they be discerned from the reasons of the Tribunal.
In these circumstances the Court finds that the requirements to be satisfied before leave to appeal can be granted have not been fulfilled. It follows that the Court dismisses the application with costs.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate:
Dated: 9 August 2013
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