SZTPF v Minister for Immigration and Border Protection

[2015] FCA 445

FEDERAL COURT OF AUSTRALIA

SZTPF v Minister for Immigration and Border Protection [2015] FCA 445

Citation:	SZTPF v Minister for Immigration and Border Protection [2015] FCA 445
Appeal from:	SZTPF v Minister for Immigration & Anor [2015] FCCA 186
Parties:	SZTPF v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	NSD 141 of 2015
Judge:	PAGONE J
Date of judgment:	8 May 2015
Catchwords:	MIGRATION – Appeal from Federal Circuit Court of Australia – application for Protection (Class XA) visa – where applicant claimed protection due to fear arising from demolition of his home and subsequent mistreatment by police – whether decision of Federal Circuit Court disclosed appealable error.
Legislation:	Migration Act 1958 (Cth) ss 36(2), 474
Cases cited:	Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129
Date of hearing:	8 May 2015
Date of publication of reasons:	12 May 2015
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	6
Counsel for the Appellant:	The appellant appeared in person assisted by an interpreter
Counsel for the Respondents:	Ms A Carr of DLA Piper

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 141 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZTPF
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	PAGONE J
DATE OF ORDER:	8 MAY 2015
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.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 141 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZTPF
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	PAGONE J
DATE:	8 MAY 2015
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of the Federal Circuit Court of Australia made on 30 January 2015. Judge Manousaridis of the Federal Circuit Court dismissed an application for judicial review of a decision of the Refugee Review Tribunal made on 31 October 2013. The Tribunal had affirmed a decision made by a delegate of the Minister for Immigration and Citizenship (now the Minister for Immigration and Border Protection) on 10 December 2012 not to grant the appellant a Protection (Class XA) visa. The Minister’s delegate refused to grant the visa because he was not satisfied that the appellant was a person to whom Australia owed protection obligations pursuant to s 36(2) of the Migration Act 1958 (Cth).

2. The task of this Court on appeal is to determine whether the judgment of the Federal Circuit Court is affected by appealable error: SLMB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 129, [11]. The task of the Federal Circuit Court had been to determine whether the decision of the Tribunal was affected by jurisdictional error: Migration Act 1958 (Cth), s 474; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. It is not the role of this Court in these applications to review the decision afresh or to substitute its view of the preferable decision on the facts. The Court’s role is to correct legal errors and may not reconsider the case more generally.

3. The grounds relied upon by the appellant in his notice of appeals are as follows:

   (1)My home renovation cost 3 million Yuan.  But, the authorities would give me half of it as compensation.  I tried to stop their bulldozer for which I was persecuted.  I tried my best to escape.  Then, with my friend’s assistance, I left China to Australia.  But, the Refugee Review Tribunal member didn’t accept my past experience in China.  And said that if I return to China, I won’t be persecuted.

   (2)The Tribunal ignored the true facts.  The Tribunal’s decision is not just and made jurisdictional error.

   (3)The Federal Circuit Court accepted the Refugee Review Tribunal member’s decision.

   The appellant’s affidavit adds nothing to support any of the three grounds.  He appeared at the hearing with the assistance of an interpreter and explained his challenge of the decision of the Federal Circuit Court, and also of the Tribunal, to be that the decisions were both factually wrong rather than that they were based upon legal error or erroneous application of principle.

4. The first ground seeks to have this Court engage in impermissible merits review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. The ground identifies no error of principle made by the Federal Circuit Court, or by the Tribunal before it, but seeks to challenge the Tribunal’s refusal to accept the evidence which the appellant had urged upon the Tribunal. Much the same is true in respect of the second and third grounds to the extent that they are capable of being understood as incorporating specifics and particulars.

5. The three grounds relied upon by the appellant in this Court are substantially the same as those he had relied upon in his application to the Federal Circuit Court for review of the decision by the Tribunal.  The Federal Circuit Court had dealt with those grounds by saying:

   Application for judicial review

   3.In his application for judicial review before this Court, the applicant relied on the following grounds:

   My home renovation cost 3 million Yuan. But, the authorities would give me half of it as compensation. I tried to stop their bulldozer for which I was persecuted. I tried my best to escape. Then, with my friend’s assistance, I left China to Australia.

   But, the Refugee Review Tribunal member didn’t accept my past experience in China. And said that if I return to China, I won’t be persecuted.

   The Tribunal ignored the true facts. The Tribunal’s decision is not just and made jurisdictional error.

   4.At the hearing the applicant, who was not legally represented, did not make any oral submissions in support of these grounds.

   5.The first two paragraphs do not disclose any jurisdictional error. They only express disagreement with the Tribunal’s findings of fact.

   6.The third paragraph does not identify the facts the applicant claims the Tribunal ignored. I will take this paragraph, however, as claiming that the Tribunal did not consider the applicant’s claims, and the evidence he advanced to the Tribunal in support of his claims.

   7.In my opinion, there is no merit in the applicant’s claims. The Tribunal’s reasons indicate that it considered, and considered in detail, the applicant’s claims before it. The Tribunal set out the applicant’s claims and evidence, the evidence the applicant gave at the hearing before the Tribunal on 3 October 2013, and the reasons for the Tribunal not accepting the applicant’s evidence. The matters on which the Tribunal relied for concluding the applicant was not a witness of credit were matters on which it was reasonably open for the Tribunal to rely for so concluding.

   The decision of the Federal Circuit Court is not shown to be in error.  Furthermore, the Federal Circuit Court did not, contrary to ground 3 in the notice of appeal, accept the decision of the Tribunal, but rather the Federal Circuit Court had found that the Tribunal’s decision was not reached by jurisdictional error.  No such error has been shown in the appeal to this Court.

6. Accordingly, the appeal will be dismissed.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.

Associate:

Dated:       12 May 2015