SZUPF v Minister for Immigration and Border Protection
[2016] FCA 941
•10 August 2016
FEDERAL COURT OF AUSTRALIA
SZUPF v Minister for Immigration and Border Protection [2016] FCA 941
Appeal from: SZUPF v Minister for Immigration & Anor [2016] FCCA 883 File number(s): NSD 581 of 2016 Judge(s): GILMOUR J Date of judgment: 10 August 2016 Legislation: Federal Circuit Court Rules 2001 (Cth) r 44.12
Federal Court of Australia Act 1976 (Cth) ss 24(1A)
Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa)
Cases cited: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Date of hearing: 10 August 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 24 Category: No catchwords Counsel for the Appellant: Appellant appeared in person Counsel for the Respondents: Ms N Maddocks of DLA Piper ORDERS
NSD 581 of 2016 BETWEEN: SZUPF
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
GILMOUR J
DATE OF ORDER:
10 AUGUST 2016
THE COURT ORDERS THAT:
1.The application for leave to appeal is dismissed.
2.The applicant pay the costs of the first respondent to be taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GILMOUR J:
This is an application for leave to appeal from the interlocutory judgment and orders of the Federal Circuit Court delivered on 11 April 2016 dismissing an application to review a decision of the (former) Refugee Review Tribunal dated 3 June 2014. The second respondent is now the Administrative Appeals Tribunal (Tribunal).
Background
The following background, which is not controversial, is drawn substantially from the written submissions of the first respondent (Minister).
The applicant is a male citizen of India. He arrived in Australia on 3 December 2012 as the holder of a subclass 676 visitor visa.
The applicant applied for a Protection visa on 28 December 2012. He made the following claims. He feared harm in India from the Darsgah Jihad-O-Shahadat (DJOS). He gave a donation to the DJOS in 2005. They returned in 2006 seeking a second donation. By this time the applicant knew of their character and refused to give them money. As a consequence the DJOS damaged his store and threatened him, and then later came back to his store and assaulted him and stole money and again threatened the applicant. The DJOS kidnapped his son in 2008. He paid money to secure his son's release. The DJOS continued to harass his family in India. The applicant in support of his claims provided two news articles regarding the activities of the DJOS.
The application was refused by a delegate of the Minister on 31 July 2013.
The applicant applied to the Tribunal for review of the delegate's decision and attended a hearing before it on 14 May 2014.
The Tribunal affirmed the delegate’s decision.
The Tribunal proceedings
The Tribunal expressed the view that during the hearing the applicant was evasive and vague when asked specific questions, and that significant aspects of his evidence were inconsistent. It set out specific concerns with his evidence. The Tribunal:
(1)considered that the applicant's failure to apply for protection when he visited the United Kingdom in 2011 and New Zealand in 2012 was inconsistent with his claim to fear harm in India. Further it considered that the applicant's reasons for not seeking protection in these countries indicated that he was searching for the best country to immigrate to rather than seek protection;
(2)considered that the applicant's claim that his wife's business was forced to close because of the DJOS was inconsistent with his claim that nothing is happening to his family now that he has left India;
(3)considered that the applicant's claim about his son being kidnapped was inconsistent with his evidence that his sons regularly attended the same educational institution and travelled there by motor bike;
(4)found that the applicant's possession of assets and his financial circumstances were inconsistent with his claim that the DJOS is extorting him and that he is struggling to feed his family; and
(5)concluded that the applicant was not a credible witness and on this basis rejected the entirety of his claims regarding his past experiences with, and fear of harm from, the DJOS. It accordingly found that he did not satisfy sections 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (the Act).
Proceedings before the Federal Circuit Court
The applicant sought judicial review of the decision of the Tribunal by application to the Federal Circuit Court. A ‘show cause’ hearing pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) was held before Judge Cameron on 11 April 2016. The applicant relied on the grounds of his originating application as follows:
(1)I am at shock to know why the Tribunal refused my application. I do believe that the Tribunal made error because the Tribunal misunderstood my claim.
(2)I ask the Honourable Court to assist me in this matter because I am a refugee and my life is at risk.
At the hearing the applicant gave oral submissions, alleging that the Tribunal had simply affirmed the decision of the delegate. His Honour found this allegation to be without any foundation. The claims said by the applicant not to have been considered by the Tribunal were, his Honour found, clearly considered and amounted to a challenge the merits of the Tribunal’s findings in respect to those claims. His Honour found that the applicant did not attempt to show how his case was one in which there was a duty to inquire, and that this new ground was not arguable. His Honour concluded that the allegations made by the applicant did not raise an arguable case for the relief claimed and dismissed the application accordingly.
Leave to appeal
Leave to appeal is required to appeal from an interlocutory judgment made pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth).
The draft Notice of Appeal
The applicant pleads three grounds, which, in summary, assert that he does not agree with his Honour’s judgment; that the Tribunal failed to consider properly his claims; and that the Federal Circuit Court failed to consider his transcript and evidence before it.
Consideration
The applicant did not put on any written submissions.
His oral submissions rose no higher than a complaint that he did not agree with the Tribunal’s decision because it had not properly considered his claims. He went beyond his grounds of appeal by submitting that, in turn, the Tribunal and the primary judge had merely followed the reasoning of the delegate of the Minister and the Tribunal respectively.
This submission, to the extent that it implies that each of the Tribunal and the primary judge did not bring an independent merit to their deliberations is without substance as is evident from their respective reasons.
I will now consider the proposed grounds of appeal in turn.
The first ground is that the primary judge was not correct in his decision. This complaint in substance seeks impermissible merits review. It is without foundation. The Tribunal was not satisfied as to the truth of the applicant’s claims. Its conclusions to this end were open on the material before it.
No appealable error is evident on the part of the primary judge, nor any jurisdictional error on the part of the Tribunal.
The second ground does not articulate any error on the part of the Tribunal. Again it seeks impermissible merits review. No relevant error has been established.
The third ground alleges that the "Tribunal" overlooked the applicant's transcript evidence. The Minister submits that two possible arguments arise from this ground. First, the applicant could in fact be referring to the Federal Circuit Court and not the Tribunal. There was no transcript before the Tribunal. However, during the proceedings in the Federal Circuit Court the applicant tendered an affidavit annexing a transcript of the proceedings in the Tribunal. This was read by the primary judge.
The primary judge at [15] considered the evidence which was before the Tribunal and held that the applicant's claim was groundless when the alleged discrepancies between what the applicant had said to the Tribunal and what was in the decision were compared.
Alternatively, the applicant's ground can be read in light of what was argued before the primary judge. The applicant asserted that the Tribunal failed to consider evidence and adduced the transcript to support this claim. The applicant may be seeking to re-agitate this argument in his appeal.
Even so, I accept that this ground is without merit. As I explained, the primary judge addressed this issue at [15]. No relevant error in his reasoning has been exposed. The judgment and orders of the primary judge are not attended with sufficient doubt to warrant reconsideration by this Court: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.
Orders
The application for leave will be refused. The applicant should pay the Minister’s costs.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate:
Dated: 10 August 2016
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