SZTQG v Minister for Immigration and Border Protection
[2015] FCA 99
•16 February 2015
FEDERAL COURT OF AUSTRALIA
SZTQG v Minister for Immigration and Border Protection [2015] FCA 99
Citation: SZTQG v Minister for Immigration and Border Protection [2015] FCA 99 Appeal from: SZTQG v Minister for Immigration & Anor [2014] FCCA 2511 Parties: SZTQG v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: NSD 1175 of 2014 Judge: EDMONDS J Date of judgment: 16 February 2015 Legislation: Migration Act 1958 (Cth) ss 36, 91R Cases cited: SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 cited
SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51 citedDate of hearing: 16 February 2015 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 18 Counsel for the Appellant: The appellant appeared in person Solicitor for the Respondents: Ms Louise Buchanan of Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1175 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZTQG
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
EDMONDS J
DATE OF ORDER:
16 FEBRUARY 2015
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs, as agreed or taxed.
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 1175 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZTQG
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
EDMONDS J
DATE:
16 FEBRUARY 2015
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal from a judgment of the Federal Circuit Court (Nicholls J) given on 31 October 2014: SZTQG v Minister for Immigration and Border Protection [2014] FCCA 2511, dismissing an application for review of a decision of the second respondent (“Tribunal”) made on 18 November 2013 affirming a decision of a delegate of the first respondent (“Minister”) refusing to grant the appellant a Protection (Class XA) visa.
BACKGROUND
The relevant factual background is set out at [2]–[7] of the reasons for judgment below (“R”). Relevant details of the interview with the delegate of the Minister and the delegate’s findings are set out at R [8] and [9]. Relevant details of the proceedings before the Tribunal and the Tribunal’s findings are set out at R [10]–[22].
APPLICATION FOR REVIEW
The grounds of the application for review are set out at R [24]. Relevant details of the proceedings before the primary judge are set out at R [25]–[27]. A recitation of the appellant’s submissions before the court below are set out at R [28]–[42] and the court’s consideration of the two grounds of the appellant’s application are set out at R [43]–[66].
The primary judge concluded, correctly in my view, that the appellant’s submissions before the court proceeded on a fundamental misunderstanding of the nature of the proceedings he had instituted and the power of the court. This appears at R [28]. His Honour also found that a number of the matters raised by the appellant in his submissions to the court sought impermissible merits review. One finds that at R [36], [40] and [41]. All were irrelevant and that is apparent at R [33]. But in any case, his Honour concluded that they did not amount to jurisdictional error in the Tribunal’s decision. That’s apparent from R [42].
Turning to the grounds of appeal below, the appellant’s first ground asserted that the Tribunal erred by failing to engage in an active intellectual process in relation to documents said to corroborate his claims and give weight to them in making credibility findings. The primary judge considered this ground at R [43]–[54]. His Honour noted that the only corroborative documents provided to the Tribunal were two documents which the Tribunal specifically referred to in its decision. The Tribunal accepted the incidents the documents related to had occurred and his Honour accepted that this indicated that the Tribunal gave consideration and weight to them and, in any event, even if the Tribunal overlooked the documents, it could not give rise to jurisdictional error in circumstances where the Tribunal accepted the incidents occurred broadly as the appellant had claimed. His Honour otherwise found that the Tribunal’s credit findings were reasonably open to the Tribunal on the evidence before it and for which it gave rational explanations.
The appellant’s second ground asserted that the Tribunal misunderstood or incorrectly applied the test in s 36(2B)(a) of the Migration Act 1958 (Cth) (“Act”) regarding relocation. The primary judge considered this particular ground at R [55]–[66].
His Honour considered the appellant’s complaint was that the Tribunal did not consider the reasonableness of relocation. His Honour found no jurisdictional error in the Tribunal’s findings in this regard. His Honour noted that care needed to be taken as the Tribunal accepted the appellant has a subjective fear of harm, but found that the fear was not objectively well founded because the appellant could access State protection and could relocate.
His Honour further found that the Tribunal correctly applied the legal threshold identified by the High Court in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 and SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51. His Honour then noted that the Tribunal had distinguished between the relevant test in s 36(2)(a) and s 36(2)(aa) of the Act, given it made specific reference to them. His Honour found no error in the findings in relation to complementary protection merely due to the brevity of its findings whereby it referred back to its previous factual findings regarding the appellant not facing any harm outside of his local area, being able to relocate from that area and that, in any event, he could access state protection.
His Honour therefore dismissed the application with costs.
APPEAL
Before this Court, the appellant appeals from the whole of the judgment of the Federal Circuit Court and in doing so, the appellant relies on two grounds of appeal in his notice of appeal filed on 14 November 2014.
The first ground of appeal asserts that the primary judge below failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the claims in terms of s 91R of the Act. The meaning of this particular ground is unclear to me. It was not a ground raised in, or considered by, the court below and arguably, the appellant needs leave to raise this issue. The Minister submits that in the absence of any explanation as to why this ground was not raised at trial and in light of its lack of merit, leave should be refused.
In my view, there is nothing to indicate that the Tribunal failed to consider and apply s 91R of the Act. The Tribunal accepted that the appellant had a subjective fear of harm for a reason under the Refugees Convention. However, it did not accept that the appellant faced a well-founded fear of persecution due to its findings relating to State protection and relocation.
For this reason, even if I was to grant leave for the appellant to rely on this first ground, it would not sustain the appeal. This provides a further reason for refusing leave.
The second ground of appeal asserts that the primary judge below erred by failing to consider that the Tribunal decision was unjust and did not consider the full gravity of the appellant’s claims.
Again, the ground is expressed in general terms and does not clearly relate to either of the grounds of review relied upon below. Again, arguably, the appellant would need leave to raise this ground.
If this ground takes issue with the judgment below, it is not clear how the court below is alleged to have erred in its treatment of one or other of the grounds raised in that court. On one view, this ground seeks to cavil with the merits of the Tribunal’s decision and is misplaced. The Minister submits that even if the appellant is permitted to rely on this ground of appeal, the ground is without merit. I agree with that submission. The Federal Circuit Court below found, correctly in my view, no jurisdictional error in the Tribunal’s decision.
There was no failure by the Tribunal to properly deal with the appellant’s corroborative documents nor was there any error in the Tribunal’s application of the relocation test in s 36(2B)(a) of the Act. The Tribunal found that the appellant would face no danger at all beyond his own local area. The Tribunal, therefore, found the appellant would face no risk of harm, serious or significant, outside his local area and that it was reasonable for the appellant to relocate to an area beyond his local area where he would be safe. Further, in any event, the Tribunal also found the appellant would not be denied State protection.
CONCLUSION
I agree with the primary judge’s conclusion that the Tribunal’s decision is not infected with jurisdictional error and I am otherwise unable to discern any appealable error in his Honour’s reasons for judgment. The appeal therefore must be dismissed with costs.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds. Associate:
Dated: 20 February 2015
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