SZSOP v Minister for Immigration and Border Protection
[2014] FCA 844
•7 August 2014
FEDERAL COURT OF AUSTRALIA
SZSOP v Minister for Immigration and Border Protection [2014] FCA 844
Citation: SZSOP v Minister for Immigration and Border Protection [2014] FCA 844 Appeal from: SZSOP & Anor v Minister for Immigration & Anor [2014] FCCA 771 Parties: SZSOP and SZSOQ v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: NSD 415 of 2014 Judge: NICHOLAS J Date of judgment: 7 August 2014 Legislation: Migration Act 1958 (Cth) ss 36(2)(aa) and 91R Date of hearing: 7 August 2014 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 14 Solicitor for the Appellants: The first appellant appeared in person with the assistance of an interpreter and on behalf of the second appellant Solicitor for the First Respondent: Ms C Hillary of DLA Piper Australia Solicitor for the Second Respondent: The Second Respondent submitted save as to costs
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 415 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZSOP
First AppellantSZSOQ
Second AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
NICHOLAS J
DATE OF ORDER:
7 AUGUST 2014
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellants pay the first respondent’s 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 415 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZSOP
First AppellantSZSOQ
Second AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
NICHOLAS J
DATE:
7 AUGUST 2014
PLACE:
SYDNEY
REASONS FOR JUDGMENT
(Revised from Transcript)
The appellants are husband and wife. Both are citizens of India. They made applications for protection visas which were refused by a Delegate of the first respondent. They applied to the Refugee Review Tribunal (the Tribunal) for review of the Delegate’s decision. The male appellant attended a hearing before the Tribunal, gave evidence and presented arguments on both his and his wife’s behalf. The Tribunal affirmed the Delegate’s decision to refuse to grant the appellants protection visas.
The appellants then sought judicial review of the Tribunal’s decision in the Federal Circuit Court of Australia (the Federal Circuit Court). Their application was heard by Judge Raphael who rejected each of the three grounds of review relied upon by the appellants. The question that arises in this appeal is whether the primary judge’s decision is affected by appealable error.
There were two grounds upon which the appellants relied in support of their claim that Australia owed them protection obligations. The first ground was that the appellants had been threatened by the female appellant’s former husband. The female appellant had been party to a short-lived marriage in 1998. She married the male appellant in 2001. The appellants claimed that her former husband was infuriated and made threats against both of them and their children. The second ground relied upon was that the male appellant had been a member and supporter of the Congress Party and that he had been the subject of harassment and intimidation by persons associated with the Bharatiya Janata Party (the BJP).
As to the first ground, the Tribunal stated in its reasons for decision that it was satisfied that the harm which the appellants claimed to fear at the hands of the female appellant’s former husband was due to a private and personal matter and not for any Convention related reason.
As to the second of the grounds relied upon by the appellants, the Tribunal found at [55]:
The Tribunal accepts that the applicant was a supporter of the Congress Party in his local area. It accepts that he and other members and supporters of Congress experienced harassment from members and supporters of the opposing BJP during the exuberance of election campaigns. He claims that he and other business men were subjected to harassment and demands for money were made from them by the BJP. The applicant also claims that the BJP acted on behalf of the former husband when they continued their harassment of him in 2008. The Tribunal accepts that the applicant faced low level harassment from his political adversaries in the BJP because of his support for the Congress Party. It accepts that demands of money were made of him and other business men from time to time. The Tribunal finds that the applicant negotiated these factors as part of his political and business activities. His evidence indicates that he nevertheless continued to run his business; he had a family and he continued to live at the family home in Langhnaj up until 2008 when he and the applicant wife left for New Zealand. In 2007 he and his wife made a holiday trip visiting Malaysia, Singapore, Hong Kong, Indonesia and China and at the end of this trip they returned to the family home in Langhnaj. According to his evidence before the Tribunal the business in India was closed down one year after he went to New Zealand. The applicant’s actions over this period strongly suggest and the Tribunal finds that notwithstanding minor harassment and issues associated with his support for Congress Party the applicant did not suffer serious harm for reason of his political opinion from the time of his marriage in 2001 up until the time he left India for New Zealand in 2008. The Tribunal considers that had he faced and feared actual harm in that period he would have at the least moved from the family home or he and his wife would not have returned there after their visit to other Asian countries in April 2007.
Accordingly, for the reasons stated, the Tribunal found that the male appellant did not fear harm for any of the reasons advanced by him. The Tribunal also found, based on the evidence available to it and its findings in relation to the male appellant, that there was no real chance that the female appellant would suffer Convention related persecution if she was returned to India in the reasonably foreseeable future.
In the result, the Tribunal was not satisfied that the appellants were persons to whom Australia has protection obligations under the Refugees Convention. Nor was it satisfied that the appellants were persons in respect of whom Australia has protection obligations under s 36(2)(aa) of the Migration Act 1958 (Cth) (the Act).
The primary judge’s reasons for decision set out three grounds relied upon by the appellants in support of their application for review of the Tribunal’s decision.
The first of the grounds of review indicated that the Tribunal denied the appellants procedural fairness. The contention before the primary judge seemed to be that the appellants were denied procedural fairness because the Tribunal reached conclusions adverse to the appellants without giving the appellants an opportunity to be heard in respect of the matters relied upon. As the primary judge correctly found, that submission was factually incorrect. The evidence plainly established that the appellants were given an opportunity to be heard. The male appellant gave evidence and made submissions on their behalf. It is not suggested that there was any material relied upon by the Tribunal which the appellants were not given an opportunity to address.
The second ground of review relied upon by the appellants before the primary judge asserted that the decision made by the Tribunal was made without jurisdiction because its satisfaction was not arrived at in accordance with the provisions of the Act. This contention was never particularised. There does not appear to me to be any substance to it. His Honour correctly rejected this ground of review.
The third ground of review relied upon by the appellants recited that the Tribunal’s decision was unjust and made without taking into account the full gravity of the appellants’ circumstances. The primary judge correctly rejected this ground on the basis that it was no more than a claim for merits review.
The notice of appeal raises two grounds. One of these asserts that the primary judge dismissed the appellants’ case without considering the factual and legal errors contained in the Tribunal’s decision. To the extent that this ground is intended to suggest that the primary judge did not properly consider each of the grounds of review relied upon by the appellants, it must be rejected on the basis that it lacks any substance.
The other ground of appeal relied upon is that the primary judge failed to consider whether the Tribunal acted in a manifestly unreasonable way and ignored the requirements of s 91R of the Act. There is no substance to this ground of appeal. As the paragraph in the Tribunal’s reasons to which I have referred made clear, the Tribunal accepted that the male appellant may have suffered some minor harassment as a result of his support for the Congress Party, but it was plainly of the view that this could not be characterised as serious harm. There is nothing to indicate that the Tribunal was not mindful of s 91R of the Act in assessing whether or not the appellants would be at risk of serious harm were they to return to India.
The proposition that the Tribunal’s decision was unreasonable in the legal sense was not argued below and the appellants did not seek leave to advance that argument in this Court. But it is apparent from the Tribunal’s reasons that the travel movements of the appellants for the purpose of holiday or study in New Zealand and Australia, along with a return visit to India while they were away so that they could visit their two young children who remained there, significantly undermined the appellants’ case for protection visas. Any case to the effect that the Tribunal’s decision was unreasonable in the legal sense, or otherwise not open to it on the material before it, is not seriously arguable.
The appeal will be dismissed with costs.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas. Associate:
Dated: 14 August 2014
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