SZSYD v Minister for Immigration and Border Protection

[2014] FCA 845

FEDERAL COURT OF AUSTRALIA

SZSYD v Minister for Immigration and Border Protection [2014] FCA 845

Citation:	SZSYD v Minister for Immigration and Border Protection [2014] FCA 845
Appeal from:	SZSYD v Minister for Immigration & Anor [2014] FCCA 900
Parties:	SZSYD v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	NSD 414 of 2014
Judge:	NICHOLAS J
Date of judgment:	7 August 2014
Legislation:	Migration Act 1958 (Cth) s 91R
Date of hearing:	7 August 2014
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	17
Counsel for the Appellant:	The appellant did not appear
Solicitor for the First Respondent:	Ms H Dejean of the Australian Government Solicitor
Solicitor for the Second Respondent:	The Second Respondent submitted

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 414 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZSYD
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NICHOLAS J
DATE OF ORDER:	7 AUGUST 2014
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal will be dismissed.

2.The appellant 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 414 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZSYD
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NICHOLAS J
DATE:	7 AUGUST 2014
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(Revised from Transcript)

1. This is an appeal from a judgment of Judge Nicholls of the Federal Circuit Court given on 4 April 2014.  His Honour dismissed the appellant’s application for a review of a decision of the Refugee Review Tribunal (the Tribunal) dated 21 May 2013 affirming a decision of the Delegate of the first respondent to refuse to grant the appellant a protection visa.  There was no appearance on behalf of the appellant at today’s hearing.  At the request of my associate, the solicitor for the first respondent contacted the appellant by telephone only to be told that he was in Griffith and not able to be present at the hearing today.  I am told by the solicitor for the first respondent that there had been no prior communication from the appellant to this effect, nor was there any communication to this effect to either the Registry staff or my Associate.

2. But for the scant information conveyed in the telephone conversation between the solicitor for the first respondent and the appellant to which I have referred, there is nothing before me to explain why the appellant has failed to attend the hearing of his appeal scheduled for today.  That would in itself provide a sufficient basis to dismiss the appellant’s appeal.  However, for the purpose of preparing for the hearing of the appeal I have reviewed the decision of the Tribunal, the decision of Judge Nicholls and a written submission prepared by the solicitor for the first respondent.  The appellant did not comply with directions previously made, requiring him to file written submissions in relation to his appeal.  Thus, these reasons are given in circumstances where I have not had the benefit of any written or oral submissions from the appellant.  However, I have had close regard to the materials to which I have referred, together with the appellant’s notice of appeal and the application for review that he filed in the Federal Circuit Court.

3. The appellant is a citizen of India who arrived in Australia on 13 February 2007.  At that time he held a student visa which was due to expire on 10 September 2008.  Between the time of his arrival and the expiration of his student visa the appellant undertook a number of overseas trips to and from Australia.  On 16 April 2011, following the expiration of his student visa, he was placed in immigration detention.  On 5 May 2011, he was granted a criminal justice visa to allow him to give evidence for the prosecution at a murder trial in Australia.  It appears he was released from immigration detention at about this time.

4. On 6 July 2012, not long before the appellant’s criminal justice visa was cancelled, the appellant applied for a protection visa.  In his application the appellant claimed that the accused in the criminal case had threatened him and also threatened his family in India.  The appellant claimed that the accused’s family was influential in India, well connected with local police, and that the local police were corrupt and would not protect the appellant. 

5. The appellant’s criminal justice visa was cancelled on 19 July 2012.  On 11 October 2012, a Delegate of the Minister refused the appellant’s application for a protection visa.  The appellant applied to the Tribunal for a review of the Delegate’s decision.

6. The appellant gave evidence before the Tribunal.  According to the Tribunal’s reasons, the appellant’s own evidence was that he did not receive any threats and had not been harmed by the accused murderer or either of the accused murderer’s co-accused.  The Tribunal stated:

   [40]When the Tribunal asked the applicant why he applied for the protection visa when the criminal justice visa came to an end rather than go back to India, when he had wanted to go back before, the applicant said because at that time he was working and had responsibilities in his job. He had already wasted one year and did not have much option. He did not have any plans for his future and he may be able to establish a future.

   [41]The Tribunal finds on that evidence, that when the applicant applied for the visa on 6 July 2012, his reasons for not going back to India were his job responsibilities and that he may be able to establish a future. It was not because he was scared of what the accused might do to him in the future.

7. The Tribunal went on to observe that the appellant was merely one of 100 witnesses who might be called to give evidence in the criminal case.  It found that the appellant was not a witness to the alleged murder and that his link to the criminal case was remote.  As it happened, the appellant was never required to give evidence, though there was a trial which culminated in the accused’s acquittal.  

8. The Tribunal concluded that it was not satisfied that the appellant is scared that the accused may take revenge against him in the future even if the accused were to learn that the appellant had assisted the police.  Nor was it satisfied that there is a real chance that the appellant would, for any reason, be targeted by the accused or the accused’s family if the appellant was to return to India.

9. The primary judge dealt with three grounds raised in the appellant’s application for review.  In short, the grounds assert:

   (1)The Tribunal lacked jurisdiction to make its decision because its reasonable satisfaction was not arrived at in accordance with the provisions of the Migration Act1958 (Cth) (the Act).

   (2)The Tribunal’s decision was unjust and made without taking into account the full gravity of the appellant’s circumstances.

   (3)The Tribunal failed to ask whether the Indian authorities would provide a standard of protection comparable with international standards.

10. The primary judge was not satisfied that the decision of the Tribunal was reached otherwise than in accordance with the relevant provisions of the Act. I agree with the primary judge there is no substance to this ground of review.

11. The second ground plainly involved an attempt to have the Federal Circuit Court engage in impermissible merits review.  The primary judge correctly saw this ground for what it really was and rejected it. 

12. The third ground of review that was relied upon by the appellant concerned the level of protection available in India.  As the primary judge correctly found, this was not a matter that the Tribunal was required to consider in circumstances where it was not satisfied that the appellant had any reason to fear the accused or the accused’s family.

13. The appellant’s notice of appeal includes the following two grounds of appeal:

    1.The [primary judge] failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claim and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation.

    2.The [primary judge] has dismissed the case without considering the legal and factual errors contained in the decision of the [Tribunal].

14. In light of the primary findings made by the Tribunal as to the nature and extent of the appellant’s involvement in the criminal case together with the rather remarkable evidence that the appellant gave to the Tribunal as to his reasons for not wanting to return to India (remarkable when compared to what he asserted in his application for a protection visa), the proposition that the Tribunal’s decision was unreasonable in the legal sense is not seriously arguable. Nor was there any necessity for the Tribunal to refer to s 91R of the Act. The Tribunal’s decision did not turn on what might or might not constitute serious harm or significant harm. The Tribunal was not satisfied that the appellant had a well-founded fear that he would suffer any harm at the hands of the accused or his family. 

15. It is difficult to know what to make of the second ground of appeal.  It is not apparent to me that the Tribunal’s decision was affected by any legal error

16. The appellant has not demonstrated the existence of any appealable error affecting the primary judge’s decision.  Nor has he identified any arguable basis for finding that, in rejecting his application for a protection visa, the Tribunal committed jurisdictional error.

17. The appeal will be dismissed.  The appellant will be ordered to pay the first respondent’s costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas.

Associate:

Dated:        19 August 2014