SZULD v Minister for Immigration - [2017] FCCA 2194

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZULD v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2194

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application by Nepalese citizen for a protection visa – Administrative Appeals Tribunal affirmed Delegate’s decision not to grant a protection visa – Applicant asserted Administrative Appeals Tribunal committed jurisdictional error by misunderstanding or misinterpreting the meaning of the term “charge” in a criminal law context – Administrative Appeals Tribunal did not misunderstand or misinterpret the term – no jurisdictional error – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), s.36

Migration Regulations 1994 (Cth)

Cases cited:

Arnell v Harris [1945] KB 60; [1944] 2 All ER 522
DPP v Newman (2015) 45 VR 302
Gabriel v Williamson (1979) 1 NTR 6
Minister for Immigration v SZNPG (2010) 115 ALD 303
R v D’Eyncourt (1888) 21 QBD 109
R v Norfolk quarter Sessions; Ex parte Brunson [1953] 1 QB 503
R v Roberts (2004) 9 VR 295
Stirland v DPP [1944] AC 315
SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574

Applicant:

SZULD

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1439 of 2014

Judgment of:

Judge Dowdy

Hearing date:

8 November 2016

Delivered at:

Sydney

Delivered on:

14 September 2017

REPRESENTATION

Counsel for the Applicant:

Mr R W Killalea

Solicitors for the Applicant:

Kazi & Associates

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

DLA Piper

THE ORDERS OF THE COURT ARE AS FOLLOWS

The Second Amended Application filed in this Court on 8 November 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1439 of 2014

SZULD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant in this proceeding is a male citizen of Nepal aged 33 years, having been born on 14 February 1984.
By Second Amended Application filed in this Court at the final hearing on 8 November 2016 he seeks to quash and have redetermined a decision of the Second Respondent, the Administrative Appeals Tribunal (at the time of decision the Refugee Review Tribunal) (Tribunal) dated 30 April 2014 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 29 November 2013 refusing to grant to him a Protection (Class XA) visa (Protection visa).
The Applicant using a Nepali passport arrived in Australia from Kathmandu on 27 April 2013 on a Visitor (Subclass 600) visa.
He applied for a Protection visa, the subject of these proceedings, on 5 July 2013.

Relevant Criteria and Law Applicable to Protection Visa Applications

A convenient summary of the grounds and criteria for the grant of a Protection visa can be found in the judgment of Wigney J in SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 at [5]-[7] as follows:
[5]The criteria for the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FCCA 2194
Decision Date: 14 September 2017

CaseChat Overview and Summary

This matter concerned an application for judicial review by the Applicant against the Minister for Immigration. The Applicant sought to challenge a decision of the Refugee Review Tribunal (Tribunal) which had found that Australia did not owe him protection obligations. The case was heard by Dowdy J in the Federal Court of Australia.

The central legal issues before the Court were whether the Tribunal had erred in its findings regarding the Applicant's claims for protection. Specifically, the Court was required to consider whether the Tribunal had made a factual finding that the Applicant was not of interest to the Nepalese authorities, and whether the Tribunal had correctly applied section 36(3) of the Migration Act 1958 (Cth) by finding that the Applicant had a right to enter and reside in India. Furthermore, the Court had to determine if the Tribunal had properly assessed the risk of persecution for reasons of religion or political opinion in India, as required by sections 36(4) and 36(5) of the Act.

Dowdy J reasoned that the Tribunal's finding at paragraph [39] of its decision, stating that "nothing arising out of these claims satisfied the Tribunal that the Applicant was of any interest to the Nepalese authorities," constituted a factual finding. The Court accepted that the Applicant had a right to enter and remain in India, a concession made by the Applicant's legal representative. The Tribunal's subsequent findings that the Applicant did not face a real chance of persecution in India due to his religion or political opinion were also found to be based on a proper assessment of the evidence, concluding that such fears were not well-founded, far-fetched, remote, or insubstantial.

The application for judicial review was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In the result the Tribunal concluded at [39] that there were issues which raised doubts about the credibility of the Applicant’s claims for protection in Nepal. However it did not consider it necessary to reach conclusions as to whether Australia had protection obligations to the Applicant under either the Refugees Convention criterion or the complementary protection criterion ground based upon his claims in relation to returning to Nepal because of s.36(3) of the Act to which the Tribunal then turned its attention. Paragraph [39] of its Decision Record stated as follows:[39]Overall, there are issues which raise doubts about the credibility of the applicant’s claims. In particular I note that the applicant has claimed to have had charges filed against him in Nepal but under questioning confirmed that he had not been to Court to answer any charges. I note his convoluted explanation about files being opened but find there is no evidence that he was of any interest to the authorities because of his work with the Korean NGO or as a Christian. However, for reasons concerning the availability to the applicant of safe third country protection I have not found it necessary to reach conclusion as to whether Australia has protection obligations towards the applicant under the ‘refugee’ criterion or on other ‘complementary protection’ grounds based upon his claimed fear of returning to Nepal.(emphasis supplied) I take the emphasised part of [39] of the Tribunal decision to constitute a factual finding by the Tribunal that, whatever the type or nature of the charge allegedly brought by the police against the Applicant arising out of his claimed adherence to the Christian religion and his work with the Korean NGO, nothing arising out of these claims satisfied the Tribunal that the Applicant was of any interest to the Nepalese authorities. Then at [52] of its Decision Record the Tribunal found that the Applicant had “a right to enter and reside in” India within the meaning of s.36(3) of the Act. Mr Killalea, who appeared for the Applicant expressly accepted in the Applicant’s written submissions filed on 24 March 2013 that the Applicant “does not dispute that he may freely enter and remain in India as a citizen of Nepal”. At [54] – [59] of its Decision Record the Tribunal considered whether for the purposes of s.36(4) of the Act the Applicant might be persecuted for reasons of his religion in India, but for the reasons stated in those paragraphs it found at [59] that it was satisfied that there was not a real chance that he would be persecuted now or in the reasonably foreseeable future for reason of his religion and that his fear of persecution in India was not well founded. At [60] – [62] of its Decision Record the Tribunal considered whether or not by reason of his political opinion the Applicant would be persecuted now or in the reasonably foreseeable future in India but concluded that the risk to the Applicant in India, because of his political opinion, was farfetched, remote or insubstantial.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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