SZUBA v Minister for Immigration and Border Protection

[2015] FCA 120

FEDERAL COURT OF AUSTRALIA

SZUBA v Minister for Immigration and Border Protection [2015] FCA 120

Citation:	SZUBA v Minister for Immigration and Border Protection [2015] FCA 120
Appeal from:	Application for leave to appeal: SZUBA & Ors v Minister for Immigration & Anor [2014] FCCA 2594
Parties:	SZUBA, SZUBB and SZUBC v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	NSD 1215 of 2014
Judge:	COLLIER J
Date of judgment:	24 February 2015
Catchwords:	MIGRATION – leave to appeal interlocutory decision – no arguable case – no sufficient doubt of decision by primary Judge – unparticularised grounds for leave to appeal – thorough and thoughtful analyse of claim by Tribunal
Legislation:	Federal Court of Australia Act 1976 (Cth) ss 24(1)(d), 24(1A) Migration Act 1958 (Cth) s 65 Federal Circuit Court Rules 2001 (Cth) r 44.12(1)(a)
Cases cited:	Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Date of hearing:	24 February 2015
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	22
Counsel for the First, Second and Third Applicants:	The First Applicant appeared in person on behalf of the First, Second and Third Applicants with the assistance of an interpreter
Solicitor for the First and Second Respondents:	Mr S Speirs of Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1215 of 2014

BETWEEN:

SZUBA
First Applicant

SZUBB
Second Applicant

SZUBC
Third Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	24 FEBRUARY 2015
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

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 1215 of 2014

BETWEEN:

SZUBA
First Applicant

SZUBB
Second Applicant

SZUBC
Third Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE:	24 FEBRUARY 2015
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from an interlocutory decision of the Federal Circuit Court. In the interlocutory decision below the primary Judge had summarily dismissed an application by the applicants for review of a decision of the Refugee Review Tribunal on the basis that the applicants had not raised an arguable case for relief within the meaning of r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (“Federal Circuit Court Rules”). Relevantly, r 44.12(1)(a) provides:

   Show cause hearing

   (1)At a hearing of an application for an order to show cause, the Court may:

   (a)if it is not satisfied that the application has raised an arguable case for the relief claimed--dismiss the application; or …

   History of proceedings below

2. The applicants are from Pakistan – a husband, wife and their daughter. I understand that the family unit includes three other children currently living in Pakistan. Relevant protection claims were made by the first applicant, the husband. The applicant wife and daughter did not have any separate claims for protections and applied as members of the same family unit. The focus of this appeal is accordingly on the case presented by the applicant husband. It is convenient to simply refer to the husband as “the applicant” for the purposes of this matter.

3. The applicant, his wife and daughter are all Sunni Muslims from Karachi, Pakistan. Since 1993, the applicant had worked for Pakistan International Airlines. He was promoted in 2009 to a senior office with the airline, with responsibility for 200 staff.

4. On 18 August 2012, the applicant entered Australia on a visitor visa valid until 18 November 2012. On 12 November 2012, the applicant, together with his wife and daughter, applied for a protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth) (“the Act”). The application was refused by the delegate on 27 February 2013.

5. The decision of the delegate was affirmed by the Tribunal on 25 February 2014.

   Decision of the Tribunal

6. Before the Tribunal the applicant made detailed claims concerning the treatment he and his family had experienced at the hands of the Taliban, an Islamic fundamentalist political group. He gave detailed evidence about his interactions with the Taliban, the type of information they sought from him in light of his position with the airline and work at Karachi airport, the threats to his family (in particular his daughter), his reluctance to inform his family of the threats, and his wife’s resultant medical condition. The material assertions of the applicant before the Tribunal are summarised by the primary Judge at [7] of the judgment below.

7. In summary, after a methodical and lengthy examination of the claims of the applicant and the material before the Tribunal, the Tribunal rejected the applicant’s claims as implausible, catalogued in detail the inconsistencies in the applicant’s evidence, and concluded that the applicant and his wife were not witnesses of truth. The Tribunal concluded that the applicant and his wife and daughter did not satisfy the criteria for a protection visa, and that they were not persons in respect of whom Australia had protection obligations.

   Proceedings in the Federal Circuit Court

8. On 19 March 2014 the applicants filed an application seeking judicial review of the decision of the Tribunal. The applicants relied on two grounds:

   1.The Refugee Review Tribunal did not take into consideration evidence presented before the Tribunal.

   2.The Refugee Review Tribunal did not take into consideration relevant facts before the Tribunal.

9. His Honour detailed the findings of the Tribunal and then addressed the grounds of review before the Court. His Honour found that grounds of review lacked merit. In particular, his Honour found that, contrary to the submissions of the applicant:

   ·the Tribunal did consider the medical reports concerning the applicant’s wife;

   ·the Tribunal did not overlook relevant material relating to the applicant’s attempted travel to Australia via Dubai;

   ·the Tribunal did consider the applicant’s claims concerning the kidnapping of his daughter.

10. His Honour noted the material referred to by the applicant in his oral submissions concerning an attack on Karachi airport, but found that while that material possibly supported the applicant’s claims as a refugee, it had no bearing on the Court’s consideration of the validity of the Tribunal decision.

11. His Honour concluded that the applicant had failed to demonstrate an arguable case of jurisdictional error by the Tribunal, and ordered the application be dismissed pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules.

12. On 20 November 2014, the applicants filed an Application for leave to appeal the decision of the Federal Circuit Court.

    Application to this Court

13. By application filed on 21 November 2014 the applicant sought special leave to appeal the decision of the primary Judge on the following grounds:

    1.The Federal Circuit Court of Australia did not take into consideration relevant evidence presented by the applicants to be considered for the grant of his protection visa.

    2.The Federal Circuit Court of Australia erred in not taking into consideration evidence relevant to the applicant’s case and as a result the applicant suffered injustice.

14. It is not in dispute that pursuant to s 24(1)(d) and s 24(1A) of the Federal Court of Australia Act 1976 (Cth) the applicant requires leave to appeal the decision of the primary Judge, being an interlocutory decision of that Court.

15. The applicant also filed an affidavit annexing a draft notice of appeal from his Honour’s decision, including identical grounds to those set out in the application for special leave to appeal.

    Consideration

16. The Full Court in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-400 held that in considering whether to grant special leave to appeal, the appellant must demonstrate that, in all the circumstances:

    ·the decision in respect of which leave to appeal is sought is attended by sufficient doubt such as to warrant the grant of leave; and

    ·substantial injustice would result if leave to appeal were refused, supposing the decision below to be wrong.

17. In this case I am satisfied that, if the decision of the primary Judge were wrong, it would cause substantial injustice to the applicant who would be denied a visa to which he would otherwise be entitled. I note that the Minister, properly in my view, concedes this point.

18. However I am not satisfied that the decision of the primary Judge below is attended by sufficient doubt to warrant the grant of leave. I form this view in light of:

    ·the completely unparticularised nature of the grounds for leave to appeal and the draft grounds of appeal;

    ·my examination of the decision of his Honour below, which examines submissions and evidence before the Court;

    ·my examination of the decision of the Tribunal, which was thorough and thoughtful in its analysis of the claims of the applicant;

    ·the submissions put to me this morning in Court by the applicant, in particular that the applicant has simply sought an adjournment to allow him to seek further legal advice.

19. In relation to the applicant’s application for an adjournment, I note that the decision of the Court below was delivered more than three months ago which in the ordinary course of events would allow sufficient time to organise legal advice and representation. I note that the Minister’s lawyers wrote to the applicant on 3 December 2014 suggesting to the applicant that he obtain legal advice because of the complex nature of the migration jurisdiction, and further suggested organisations which could provide assistance in respect of legal advice or referral. I understand that the applicant contacted one or some of these bodies but lacked the resources to fund legal representation in this Court.

20. However in any event, while the applicant in oral submissions detailed unfortunate family and medical circumstances which distracted him both emotionally and financially from preparing for the present hearing, I am not satisfied on the basis of the material before me that any adjournment as sought by the applicant would do otherwise than postpone what I consider to be an inevitable outcome of the current application for leave to appeal. In this light I note that the case before the Court below was a show cause hearing, which meant that the applicant was already on notice at that stage that he needed to present at the very least an arguable case to his Honour to avoid summary dismissal, and he did not.

21. The grounds before this Court do not advance the applicant’s case further than was before his Honour.

22. In my view the application for leave to appeal should be dismissed with costs.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate:

Dated:        24 February 2015