SZTQJ v Minister for Immigration and Border Protection
[2014] FCA 1206
•17 November 2014
FEDERAL COURT OF AUSTRALIA
SZTQJ v Minister for Immigration and Border Protection [2014] FCA 1206
Citation: SZTQJ v Minister for Immigration and Border Protection [2014] FCA 1206 Appeal from: Application for leave to appeal: SZTQJ & Anor v Minister for Immigration & Anor [2014] FCCA 1676 Parties: SZTQJ and SZTQK v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number(s): NSD 827 of 2014 Judge(s): BUCHANAN J Date of judgment: 17 November 2014 Cases cited: Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
SZTQJ & Anor v Minister for Immigration & Anor [2014] FCCA 1676Date of hearing: 10 November 2014 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 17 Counsel for the First Applicant: The first applicant appeared in person Counsel for the Second Applicant: The second applicant did not appear Solicitor for the First Respondent: Ms E Warner Knight, Australian Government Solicitor Counsel for the Second Respondent: The second respondent filed a submitting notice
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 827 of 2014
BETWEEN: SZTQJ
First ApplicantSZTQK
Second ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BUCHANAN J
DATE OF ORDER:
17 NOVEMBER 2014
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application for leave to 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 827 of 2014
BETWEEN: SZTQJ
First ApplicantSZTQK
Second ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BUCHANAN J
DATE:
17 NOVEMBER 2014
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The applicants are citizens of India and are husband and wife. They have applied for leave to appeal against an interlocutory decision of the Federal Circuit Court of Australia (“the FCCA”) which, although interlocutory, is final in a practical sense if leave to appeal is not given.
The FCCA found that an application to it for judicial review of a decision of the Refugee Review Tribunal (“the RRT”) did not disclose any arguable case of jurisdictional error by the RRT which would provide a foundation for relief (SZTQJ & Anor v Minister for Immigration & Anor [2014] FCCA 1676).
The applicants arrived in Australia on 14 December 2012 on tourist visas. They applied on 29 January 2013 for protection visas. Their applications were refused by a delegate of the first respondent and they then applied for review of that decision to the RRT.
The RRT recorded the claims upon which the applications for protection visas were made, as follows:
6.The applicant’s claims were initially set out in a handwritten statement attached to his protection visa application and can be summarised as follows:
ŸHe moved to live in [a] town in 1986, and in 2003 he started his business in partnership. The applicant trusted his business partner, who was dealing with the cash and accounts as he was more educated and experienced. The business went well and they were earning very well after a few years.
ŸIn early 2012, a cheque was dishonoured and the applicant immediately called for an auditing of the business. He discovered: some fake invoices; cash missing from accounts; and purchase invoices for goods that were never delivered. When the applicant asked his partner about the transactions, he at first denied any involvement, but when the applicant said he was going to report the matter to the police, the partner kept threatening to kill him. They had an argument at the business premises, the partner attacked the applicant furiously, and threatened to kill his family members.
ŸThe applicant went to a business association and asked them to help “instead of going to the court or police”. He discovered that his partner had been involved with another partnership a long time ago (his partner’s former business partner suddenly “disappeared” on his way home) and that his partner was the right-hand man of the local Bharatiya Janata Party (“BJP”) leader. The business association wanted to solve the matter but the partner threatened to the committee leader and asked them to stay away from his personal business.
ŸHis partner sent some BJP goons to the applicant’s home who ransacked his house in front of the other family members because he had reported the matter to the business association. The applicant was desperate to get his money back so he hired a lawyer but after the lawyer contacted the partner, the lawyer no longer wanted to take on the case.
ŸThe applicant and his wife went to the local BJP party office for help, and were told that they would be contacted, but a few hours later his partner rang his mobile and threatened to kidnap his only son. The applicant immediately went to his son’s school and took his son to (a different state) [the state], where his son is currently living. The applicant and his wife realised that reporting to the party office made his partner very angry. He told the applicant that if he wanted to be alive then he would have to transfer all of the business to the partner’s name, which the applicant refused to do, and the applicant went into hiding until he moved to Australia.
ŸSince coming to Australia on many occasions the partner’s people have come to look for the applicant at his house and his relatives’ houses.
(Footnote omitted.)
The RRT, however:
14.… did not find the applicant to be a credible, truthful, or reliable witness, and in making this finding, the Tribunal has considered his various internal inconsistencies and omissions, as well as his changing evidence and other concerns referred to below.
The RRT then referred in some detail to “significantly differing evidence”, evidence which was “sometimes inexplicably vague and implausible”, varying evidence as to where the applicants had lived while claiming to hide from danger, and omissions to mention at the hearing before the RRT “significant events which were referred to in his statement”.
The RRT then said the following:
Conclusions on the applicant’s credibility
30.Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility as discussed above lead the Tribunal to conclude that the applicant is not a witness of truth and the account of events on which his protection claims are based is false. The Tribunal has other concerns with the applicant’s evidence however in light of this finding it is considered unnecessary to further consider such concerns.
This assessment is not open to judicial review unless the RRT made a jurisdictional error. It is an assessment about the credibility of the first applicant and about the merits of the applicants’ claims.
The RRT, based on the assessment it had made about the first applicant’s claims and his credibility, said the following:
Findings on the applicant’s claims to be a refugee
32.On the basis of the adverse credibility finding, the Tribunal finds that the account of events on which the protection visa claims are based is false. The Tribunal does not accept that the applicant operated a business in partnership as claimed; that he had a partner who was responsible for the accounts and was embezzling money/ not keeping proper accounts; that the applicant confronted him which led to the applicant being beaten, he and his family being threatened and going into hiding and his house being ransacked; that the applicant approached the business association or anyone else including his relatives to assist him with these business problems; that his partner had political connections to BJP or connections to goons or thugs; that anyone has searched for him or sought to harm him or has any adverse interest in harming him, or his wife or his son, now or in the reasonably foreseeable future.
33.The Tribunal finds there is no basis for the applicant’s claims to fear persecution. The Tribunal is satisfied that if the applicant returns to India there is no real chance that he will be harmed by or at the behest of his former partner, BJP officials or thugs, any person in authority, or anyone else for a Convention-based reason. The Tribunal is also satisfied that there is no real chance that the applicant will be at risk of persecution for any Convention-based reason should he return to India in the reasonably foreseeable future.
Complementary protection - the applicant
34.As the Tribunal is not satisfied as to any of the applicant’s claims as to why he fears harm upon return, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm.
The claims of the second applicant depended on those of her husband and were also rejected.
The primary judge in the FCCA said:
5.Having considered the available material and having given the applicant the opportunity today to make oral submissions, I have concluded that there is no arguable case of jurisdictional error by the Tribunal. The Tribunal’s decision turned on comprehensive adverse credibility findings. Those findings are detailed on pages 97 to 100 of the court book. Those adverse credibility findings also extended to the applicant’s asserted links with his business partner who had a political affiliation.
The proposed grounds of appeal in this Court, if leave to appeal is granted, are as follows:
1.The Judge failed to consider that the Tribunal acted in a manifestly unreasonable way to send further communication to substantiate my claim of Refugee status and therefore there was a denial of natural justice. As there was a natural justice in this case I am entitled to be granted Leave to Appeal in order to obtain the relief I sought in the Federal Circuit Court.
2.The Federal Judge failed to consider that the Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.
The applicants were directed to file written submissions in support of the application for leave to appeal, and upon which the applicants would rely on the appeal if leave to appeal was granted. They did not do so.
At the hearing of the application for leave to appeal, only the first applicant appeared. When asked what he wished to say to support the application for leave to appeal, the first applicant said only that he wished an opportunity to provide evidence from his son. Such evidence could relate only to the assessment by the RRT of the merits of the applicants’ claims. It seemed apparent that the first applicant had no real understanding of the grounds of appeal which had been included in the proposed notice of appeal and was in no position either to support them by argument or attempt to identify any failing by the RRT, apart from contesting the merit of the RRT decision.
Apart from the lack of coherence in the proposed grounds of appeal which appear to me not to be directed in any particular way to either the question of jurisdictional error on the part of the RRT or to the question of appellable error by the FCCA, no other serious attempt has been made to identify anything in the decision of the RRT which might possibly raise a question of jurisdictional error rather than a complaint about the RRT’s assessment of the merits of the applicants’ claims.
I cannot identify any arguable case of jurisdictional error by the RRT or any arguable case of error by the FCCA. An appeal would not appear to me to have any prospect of success if leave to appeal was granted, because the decision of the FCCA is not, in my view, “attended with sufficient doubt to warrant its being reconsidered” (Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398).
Leave to appeal will therefore be refused with costs.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan. Associate:
Dated: 17 November 2014
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