SZUEK v Minister for Immigration and Border Protection
[2015] FCA 114
•23 February 2015
FEDERAL COURT OF AUSTRALIA
SZUEK v Minister for Immigration and Border Protection [2015] FCA 114
Citation: SZUEK v Minister for Immigration and Border Protection [2015] FCA 114 Appeal from: Application for extension of time and leave to appeal: SZUEK & Anor v Minister for Immigration & Anor [2014] FCCA 2802 Parties: SZUEK and SZUEL v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: NSD 1344 of 2014 Judge: FARRELL J Date of judgment: 23 February 2015 Catchwords: MIGRATION – application for extension of time and leave to appeal – appeal from decision of Federal Circuit Court dismissing application for judicial review – decision of Refugee Review Tribunal – reason for delay – prejudice to the respondents – merits of substantive application Legislation: Federal Circuit Court Rules 2001 (Cth)
Federal Court of Australia Act 1976 (Cth)
Federal Court Rules 2011 (Cth)
Migration Act 1958 (Cth)Convention Relating to the Status of Refugees (1951), as amended by the Protocol Relating to the Status of Refugees (1967)
Cases cited: SZUEK & Anor v Minister for Immigration & Anor [2014] FCCA 2802 Date of hearing: 23 February 2015 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 18 Counsel for the First Applicant: The first applicant appeared in person with the assistance of an interpreter Counsel for the Second Applicant: The second applicant did not appear Solicitor for the First Respondent: Ms A Carr of DLA Piper Australia Counsel for the Second Respondent: The second respondent submitted save as to costs
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1344 of 2014
BETWEEN: SZUEK
First ApplicantSZUEL
Second ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
FARRELL J
DATE OF ORDER:
23 FEBRUARY 2015
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicants pay the costs of the first respondent 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 1344 of 2014
BETWEEN: SZUEK
First ApplicantSZUEL
Second ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
FARRELL J
DATE:
23 FEBRUARY 2015
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an application for an extension of time to seek leave to appeal and for leave to appeal a judgment of Judge Driver of the Federal Circuit Court delivered on 27 November 2014: see SZUEK & Anor v Minister for Immigration & Anor [2014] FCCA 2802 (SZUEK).
At the hearing today, SZUEK appeared in person with the assistance of an interpreter. I was informed that SZUEL was aware of the hearing but had elected not to attend.
I dismissed the application and ordered that the applicants pay the Minister’s costs as agreed or taxed. These are my reasons.
Background
The applicants are husband and wife who are both citizens of India. They arrived in Australia on 7 February 2013, as holders of Tourist (Subclass 676) visas. SZUEK (who I will also refer to as the applicant) applied for a Protection (Class XA) visa (protection visa) on 15 March 2013. His wife, SZUEL applied for protection as a member of the applicant’s family unit. On 20 August 2013, a delegate of the Minister made a decision to refuse to grant the applicants protection visas.
In summary, the applicant’s claims for protection are that he was a member of the Congress Party and, consequently, opposed the Bharatiya Janata Party (BJP). The applicant claimed that threats were made by the BJP to extort money from him because he was a small business owner. The applicant claimed that when he reported these threats to the police, the BJP attended his residence and assaulted him in front of his family and ransacked his shop. The applicant claimed that he was depressed by the events in India and, consequently, he suffered ongoing physical and psychological effects: see SZUEK at [4].
Tribunal decision
On 12 March 2014, the Refugee Review Tribunal (Tribunal) affirmed the delegate’s decision.
The Tribunal found the applicant to be of “very low credibility” and that his oral evidence to it was vague and changeable, that it was difficult to elicit direct answers to many questions, and his memory was sometimes selective and unreliable.
The Tribunal was unprepared to accept that the applicant was a member or active party worker for the Congress Party, that he led a business association, or that he operated his own jewellery business called Vikash Jewellers that BJP associates forced to close. The Tribunal found that the evidence supporting these claims was uncertain, and that some of the claims were “diluted” when further detail was sought.
The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for one of the reasons set out in the Convention Relating to the Status of Refugees (1951), as amended by the Protocol Relating to the Status of Refugees (1967), now or in the reasonably foreseeable future. The Tribunal found that the applicant had fabricated his claims for protection, and had left India for reasons unrelated to his protection visa claims. The Tribunal considered and rejected the applicant’s claim for complementary protection.
Requirement for leave
By a show cause application filed on 9 April 2014, the applicants sought judicial review of the Tribunal’s decision. The primary judge dismissed the application pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). Rule 44.12(2) provides: “To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory”. Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) requires that the appeal proceed only with the leave of the Federal Court or a Judge of the Court.
The applicant seeks an extension of time to seek leave to appeal under r 35.14 of the Federal Court Rules 2011 (Cth). Rule 35.13 provides that an application must be filed within 14 days after the date on which the judgment was pronounced or the order was made. The application for extension of time and leave to appeal was filed on 18 December 2014. The delay, then, is 7 days.
Application to this Court
The applicant relies on two grounds. They are (without alteration):
1.The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claims 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 Hon. Judge Driver dismissed the application without considering the legal and factual errors contained in the decision of the RRT.
At the hearing, I explained to the applicant that having regard to well established principles, in determining whether to grant the application I would need to consider:
·The length of the applicant’s delay in lodging the application for leave to appeal and his reason for it;
·The merits of the appeal; that is whether, in all the circumstances, the decision of the primary judge is attended by sufficient doubt to warrant its reconsideration by a Full Court; and
·Whether substantial injustice would result if leave were refused, supposing the decision of the primary judge to be wrong.
The Minister submitted that the applicant’s first ground was not expressly pleaded in the court below and is a pro forma allegation concerning s 91R of the Migration Act1958 (Cth). In addition, the Minister said that the primary judge was correct to find that, as decision-maker par excellence, it was open to the Tribunal to find that the applicant was not a credible witness, and accordingly reject the whole factual basis of the applicant’s claims for protection.
The Minister submitted that the second ground is an unparticularised assertion that the primary judge failed to consider legal and factual errors by the Tribunal. The Minister says that the primary judge’s reasoning discloses no appealable error and that the primary judge was correct to find that the findings made by the Tribunal were open to it on the material and evidence before it and for the reasons it gave.
The applicant provided no written submissions. I asked the applicant why the application for leave to appeal was not filed within time. He responded by saying that he was unaware of the relevant time limit. I do not regard this explanation as acceptable. I do note that the delay is not long and the Minister did not seek to raise any prejudice arising from the delay in filing the application.
I also asked the applicant to elaborate on each of the grounds set out in the application. He declined to do so.
Having reviewed the Tribunal’s Statement of Decision and Reasons and the primary judge’s reasons in SZUEK, I accept the Minister’s submissions. The applicant has not identified, and I cannot identify, factual or jurisdictional error on the part of the Tribunal or any appealable error on the part of the primary judge. I am satisfied that the draft grounds of appeal have no merit and no substantial injustice will result from dismissing the application.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell. Associate:
Dated: 24 February 2015
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