SZTAZ v Minister for Immigration and Border Protection

[2015] FCA 133

FEDERAL COURT OF AUSTRALIA

SZTAZ v Minister for Immigration and Border Protection [2015] FCA 133

Citation:	SZTAZ v Minister for Immigration and Border Protection [2015] FCA 133
Appeal from:	SZTAZ v Minister for Immigration & Anor [2014] FCCA 2225
Parties:	SZTAZ v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number(s):	NSD 1071 of 2014
Judge(s):	SIOPIS J
Date of judgment:	27 February 2015
Date of hearing:	23 February 2015
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	28
Counsel for the Appellant:	The Appellant appeared by telephone.
Counsel for the First Respondent:	Ms F Taah
Solicitor for the First Respondent:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1071 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZTAZ
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE OF ORDER:	27 FEBRUARY 2015
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant is to 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 1071 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZTAZ
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE:	27 FEBRUARY 2015
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of a judge of the Federal Circuit Court of Australia delivered on 1 October 2014, dismissing the appellant’s application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal).

2. The appellant is a citizen of India who arrived in Australia on 30 June 2009 on a Student (Class TU 573) visa.  On 23 July 2012, the appellant lodged an application with the Department of Immigration and Citizenship (now the Department of Immigration and Border Protection) for a Protection (Class XA) visa.

3. The appellant claimed to be a member of the Congress Party and that he feared returning to India as Akali Dal Party supporters would try to harm or kill him because of his affiliation to the Congress Party.  The appellant said that the police would not protect him as they were allied with the Akali Dal Party.

4. The appellant said he was attacked in 2004 or 2005 and then again in 2007.  In the most recent attack, the appellant claimed that he was beaten with an iron bar by five people on bikes.  The appellant said that the incident was reported to the police but no action was taken.

   THE TRIBUNAL

5. On 27 November 2012, a delegate of the first respondent rejected the appellant’s protection visa application.

6. The appellant sought a review of the delegate’s decision before the Tribunal.  On 6 June 2013, the appellant gave evidence before the Tribunal to support his claims.

7. The Tribunal accepted that the appellant was a member of the Congress Party.  It accepted that the appellant was attacked in 2007.  However, the Tribunal noted that the appellant had not been attacked since the incident in 2007 and that he had lived in India for a period of time after the attack.  The appellant had also safely returned to India in 2010 to oversee the sale of his house.  The Tribunal held that there was no evidence of any continuing adverse interest in the appellant by the Akali Dal Party.

8. The Tribunal found that there was no real chance that the appellant would face persecution in India now or in the reasonably foreseeable future, because of his membership of the Congress Party.

9. Further, although it was unnecessary to do so, the Tribunal found that it would be reasonable for the appellant to relocate safely within India, given his ability to earn a livelihood as a florist or in retail generally.

   THE FEDERAL CIRCUIT COURT

10. The appellant brought an application for judicial review of the decision of the Tribunal to the Federal Circuit Court.  The appellant’s grounds of review were:

    1.The Tribunal failed to consider properly the test whether the applicant would suffer serious harm as per sec 91R(2)(a) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do), if they asked to relocate in India.  The Tribunal failed to satisfy this statutory obligation was a serious jurisdictional error caused by the Tribunal.

    2.The Tribunal had no jurisdiction to make said decision because its “reasonable satisfaction” was not arrived in accordance with requirements of the Migration Act.

    3.The [Tribunal] failed to investigate applicant’s claims, specially the grounds of persecution, in India.  Therefore, the Tribunal decision dated 13 June 2013 was effected by actual bias constituting judicial error.

11. On 1 October 2014, the Federal Circuit Court dismissed the appellant’s application for judicial review.

    THE APPEAL

12. The appellant has set out two grounds of appeal in his notice of appeal:

    1.The FM [sic] 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 Federal Circuit Court failed to take into consideration that the Tribunal’s decision was unjust and was made without taking into account the full gravity of my circumstances and consequences of the claim.

13. When the matter was called on for hearing, there was no appearance by the appellant.  Counsel for the first respondent handed to the Court correspondence between the appellant and counsel’s instructing solicitors, the Australian Government Solicitor.  The correspondence revealed that the appellant had written to the Australian Government Solicitor saying that he would not be attending the hearing because he did not have sufficient funds to travel from Leeton, New South Wales, to the Court to attend the hearing.

14. The Australian Government Solicitor had responded by letter to the appellant stating that the matter remained listed for hearing at 10:15 am on 23 February 2015 and that should the appellant fail to appear on that date, orders may be sought that his appeal be dismissed with costs.

15. This correspondence had not found its way to the Court prior to the hearing.  Nor had the appellant foreshadowed to the Court that he would not be able to attend the hearing.

16. The appellant’s letter to the Australian Government Solicitor contained a mobile telephone number for the appellant.  The Court used the telephone number to contact the appellant and the appellant participated in the hearing by telephone.

17. The appellant made no oral submissions in support of the grounds of appeal in his notice of appeal.  The appellant merely said that it was his right to appeal and he had exercised that right.

18. The first ground of appeal contends that the primary judge erred in failing to consider that the Tribunal had acted in a “manifestly unreasonable way”.  There never was a ground of review before the primary judge based upon the Tribunal having acted unreasonably.  Accordingly, the failure by the primary judge to consider a ground of review based on manifest unreasonableness on the part of the Tribunal did not amount to an error by the primary judge.

19. In any event, looking at the primary judge’s decision more broadly, it is apparent that the primary judge considered and rejected the three grounds of review which the appellant had raised before the Federal Circuit Court.

20. The first ground of review was rejected on the basis that the question of whether the appellant could relocate safely within India was unnecessary to the Tribunal’s decision because it had already found that the appellant did not have a well-founded fear of persecution.

21. The second ground of review was rejected on the basis that the ground of review was an impermissible attempt to address the merits of the Tribunal’s decision.

22. The third ground of review was rejected on the basis that there was no duty upon the Tribunal to inquire generally in relation to the appellant’s claims that he feared persecution; and there was no evidence of any bias in relation to the making of the Tribunal’s decision.

23. In my view, the primary judge did not err in coming to the views which he did.

24. Accordingly, ground one of the appellant’s grounds of appeal is dismissed.

25. As to the second ground of appeal, this ground appears to amount to a complaint that the primary judge did not address the merits of the Tribunal’s decision.  To the extent that this is the gravamen of the appellant’s complaint, the primary judge did not err in failing to address the merits of the Tribunal’s decision.

26. Further, and in any event, looking at the primary judge’s decision more broadly, I have already found that the primary judge addressed the grounds of review before the Federal Circuit Court, and that, in making the findings which he did in relation to each of the grounds, the primary judge did not err.

27. It follows that the second ground of appeal is dismissed.

28. The appeal is dismissed with costs.

I certify that the preceding twenty‑eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:

Dated:        27 February 2015