SZSGH v Minister for Immigration and Border Protection
[2013] FCA 1298
•5 December 2013
FEDERAL COURT OF AUSTRALIA
SZSGH v Minister for Immigration and Border Protection [2013] FCA 1298
Citation: SZSGH v Minister for Immigration and Border Protection [2013] FCA 1298 Appeal from: SZSGH v Minister for Immigration & Anor [2013] FCCA 797 Parties: SZSGH v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number(s): NSD 1368 of 2013 Judge(s): BUCHANAN J Date of judgment: 5 December 2013 Legislation: Migration Act 1958 (Cth), s 36(3) Cases cited: SZSGH v Minister for Immigration & Anor [2013] FCCA 797 Date of hearing: 20 November 2013 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 15 Counsel for the Appellant: The Appellant appeared in person with an interpreter Solicitor for the First Respondent: Mr R White, Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1368 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZSGH
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BUCHANAN J
DATE OF ORDER:
5 DECEMBER 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to ‘Minister for Immigration and Border Protection’.
2.The appeal be dismissed with costs.
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 1368 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZSGH
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BUCHANAN J
DATE:
5 DECEMBER 2013
PLACE:
SYDNEY
REASONS FOR JUDGMENT
BUCHANAN J:
Background
The appellant is a citizen of Chad, although he has apparently never lived there, having lived all his life in Saudi Arabia where he was born.
The appellant arrived in Australia at Sydney Airport on 8 June 2012. He travelled to Australia on a Saudi Arabian passport in a different name. On 29 June 2012, he lodged an application for a protection visa. The application for a protection visa was supported by a statutory declaration, in English, that stated the appellant had a Saudi Arabian residency permit, although the permit expired in March 2012. The appellant’s claims that he would be subject to persecution in Chad were based upon contentions in the following terms:
Why I will be harmed
22.I will be harmed because I was born and grew up in Saudi Arabia. I have no support networks in Chad to rely on for subsistence-based support, or for protection from violence in that country.
23.I am also aware that the violent conflict that prevails in Chad today is based in tribal/ethnic conflicts. Because I have never lived in Chad, I do not know the details of these conflicts, but I fear that I may be discriminatorily targeted and harmed because of my ethnicity in Chad under the guise of generalised violence.
A delegate of the first respondent accepted that the appellant had expressed the fear that he would be harmed on the basis of his membership of the Gorani tribe, and feared that this harm would be perpetrated by members of the Zaghawa tribe, of whom the current president of Chad is a member. The delegate recorded:
Evidence and Reasons
The applicant has not been specific in regard to the extent of harm he fears, however I am satisfied that it is implicit within his account that he fears serious harm on the basis of his ethnicity.
The delegate’s conclusions were:
The information available to the Department and referred to above indicates that the Gorane and the Zaghawa tribes were allies during the rule of Habre from 1982 to 1990, although acts of violence were committed at the local level against the Zaghawa by the Gorane during this period. There is no current information that indicates the government has targeted, or is targeting, members of the Gorane tribe on the basis of their ethnicity. The information also indicates that tribal identity is not a basis for membership in any rebel groups that are opposed to the government, and that any targeting of, for example, members of the Gorane tribe belonging to rebel groups would be on the basis of an anti-government political opinion rather than any tribal affiliation. There is no information to indicate that either the applicant or any of his family members have ever been associated with any rebel groups.
…
The available information indicates that the level of harm to which the applicant may be subject to on the basis of his ethnicity should he return to Chad would be limited to discrimination, and not of sufficient severity to constitute serious harm.
Similarly there is no basis upon which a finding could be made that the applicant is at risk of persecution on account of his political opinion or any other convention reason.
The delegate also found that the appellant was not entitled to a protection visa on complementary protection grounds because there was not a real risk that he would suffer significant harm in Chad for other reasons. Accordingly, on 31 July 2012, the delegate rejected the application for a protection visa.
The Refugee Review Tribunal’s decision
The appellant then applied to the Refugee Review Tribunal (“the RRT”) for review of the delegate’s decision. Submissions were made on his behalf by a firm of solicitors. Those written submissions addressed the delegate’s findings. The RRT conducted a hearing on 19 September 2012 and took evidence from the appellant. On 26 September 2012, further written representations were made on behalf of the appellant which led to a further hearing on 12 October 2012. The second hearing concerned the appellant’s contention that his father had been summoned to the embassy at Chad in Saudi Arabia to inquire about the appellant’s departure from Saudi Arabia.
The RRT accepted (with some reservations) that the appellant would no longer have the right to enter and reside in Saudi Arabia and that he should not, therefore, be denied protection (if otherwise justified) under the terms of s 36(3) of the Migration Act 1958 (Cth). The effect of this finding is that attention was required by the RRT specifically to the appellant’s claims to fear persecution in Chad if he was removed from Australia.
The RRT accepted that the appellant was a member of the Gorane tribe “on the basis that it is plausible”. However, the RRT did not accept that the appellant was thereby exposed to a real risk of persecution in Chad. In the course of its analysis, the RRT rejected any suggestion that the government of Chad, through its embassy in Saudi Arabia, had expressed a real interest in the appellant such that he was at risk of being targeted by reason of an imputed political opinion. It rejected the appellant’s claims that the Chadian authorities informed his father that he has caused them trouble and that he is a suspected dissident. The RRT made the following further findings:
112.The Tribunal has considered these overlapping claims, and their cumulative effect. It finds that the applicant a Saudi-born and resident Chadian who has never lived in Chad, is a Gorane, and a young person who has tried to migrate to other counties [sic] to find a better life. It does not accept that the Chadian authorities have an adverse interest in him now, or in the future, or that there is a real chance of them imputing to him any adverse political opinion for reason of these, or any other factors. The Tribunal accepts that the applicant’s entry into Chad could present him with various challenges, but it does not accept that these give rise to a real chance of persecution for any Convention reason.
113.Having considered the applicant’s claims individually and cumulatively, the Tribunal finds that he does not face a real chance of persecution for any Convention reason, if he goes to Chad, his country of nationality. The Tribunal is therefore not satisfied that he has a well-founded fear of Convention-related persecution, now or in the reasonably foreseeable future, if he goes to Chad.
Complementary protection
114.The Tribunal has accepted that the applicant may face challenges in Chad, because of the poor living conditions in that country. However, it does not accept that his Gorane ethnicity, his birth and residency in Saudi Arabia or any other factors would lead the Chadian authorities to target him (including for reason of any imputed adverse political profile), or for any other armed, tribal or other groups to target him. The Tribunal does not accept that the difficult living conditions in Chad involve ‘significant harm’ as defined in s.36(2A) of the Act. This is because, among other things, the Tribunal does not accept that he ‘will be arbitrarily deprived of his life’, that ‘the death penalty will be carried out’, or that the general living conditions in Chad involve any intention to inflict harm on the applicant, as required in the definitions of ‘torture’, ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment of punishment’.
115.The Tribunal is therefore not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal to Chad, there is a real risk of significant harm.
The Federal Circuit Court of Australia’s decision
The appellant then applied to the (then) Federal Magistrates Court of Australia (now the Federal Circuit Court of Australia) (“the FCCA”) for judicial review of the decision of the RRT. The grounds for that review were stated as follows:
1.Migration Act was not observed properly and the RRT member was not acting in good faith in decision making process.
2.The decision does not relate to the subject matter of the legislation and the decision exceeds the limits set out in the constitution.
3.The RRT deprived me of natural justice.
On 4 July 2013, the FCCA dismissed the application for judicial review (SZSGH v Minister for Immigration & Anor [2013] FCCA 797). The FCCA dismissed the application for judicial review for reasons which were briefly, but cogently, expressed. It found that none of the stated grounds gave reason to find a jurisdictional error on the part of the RRT.
The appeal to this Court
The appellant has now appealed to this Court. The grounds of appeal are stated in the following terms:
1.Migration Act 1958, s32(1)a, was not observed properly and RRT member was not acting in good faith in decision making process.
2.The decision does not relate to the subject matter of the legislation and the decision exceeds the limits set out in Commonwealth constitution.
3.The RRT deprived me of natural justice.
4.The RRT member did not act according to the law assessing the complementary protection criteria.
[sic]
These grounds are in formulaic terms and do not state any particular matter which would identify jurisdictional error on the part of the RRT.
The appellant did not file any written submission prior to the hearing of the appeal. At the hearing of the appeal, the appellant sought to explain the bases of his apprehension about being required to go to Chad. He stated that his father had left Chad over 40 years ago because of the conflict there. He stated that at the present time there is conflict between rebels and the government and between tribes who are prepared to kill each other over matters like access to water. As a result there is no stability, no peace and the country is not safe. He does not want to live in a country where there is even a 10% chance that he will be killed and he came to Australia to seek protection, a safer place to live and stability.
I have no reason to doubt the appellant’s sincerity but, as I explained to him, the merits of his claim to a protection visa are not matters with which this Court, or the FCCA, may deal. The merits of the decision of the RRT, that the appellant should not be granted a protection visa, are beyond the scope of the present appeal, as they were beyond the scope of the proceedings before the FCCA. No jurisdictional error on the part of the RRT has been identified and none appears to me on the material which is before the Court. In particular, I see no indication that the RRT failed to understand and address the claims made by the appellant.
Conclusion
The present appeal must therefore be dismissed. It is appropriate to dismiss it with costs.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan. Associate:
Dated: 5 December 2013
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