SZURT v Minister for Immigration and Border Protection
[2015] FCA 877
•13 August 2015
FEDERAL COURT OF AUSTRALIA
SZURT v Minister for Immigration and Border Protection [2015] FCA 877
Citation: SZURT v Minister for Immigration and Border Protection [2015] FCA 877 Appeal from: Application for leave to appeal: SZURT v Minister for Immigration and Border Protection & Anor [2015] FCCA 635 Parties: SZURT v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL File number: NSD 323 of 2015 Judge: RANGIAH J Date of judgment: 13 August 2015 Catchwords: MIGRATION – application for leave to appeal from Federal Circuit Court – refusal to grant protection visa – whether any jurisdictional error – application dismissed Legislation: Federal Court of Australia Act1976 (Cth) s 24(1)(a)
Federal Court Rules 2011 (Cth) r 35.11
Migration Act 1958 (Cth) ss 36(2)(a) and 36(2)(aa)
Federal Circuit Court Rules 2001 (Cth) r 44.12(1)(a)Cases cited: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited Date of hearing: 13 August 2015 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 16 Counsel for the Applicant: The applicant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Ms F Taah of Australian Government Solicitor Counsel for the Second Respondent: The second respondent did not appear.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 323 of 2015
BETWEEN: SZURT
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
RANGIAH J
DATE OF ORDER:
13 AUGUST 2015
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay the first respondent’s costs of the proceeding.
3.The name of the second respondent be amended to Administrative Appeals Tribunal.
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 323 of 2015
BETWEEN: SZURT
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
RANGIAH J
DATE:
13 AUGUST 2015
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an application pursuant to r 35.12 of the Federal Court Rules 2011 (Cth) for leave to appeal from a judgment of the Federal Circuit Court of Australia given on 19 March 2015. The primary judge dismissed an application for constitutional writs directed to the Refugee Review Tribunal (“the Tribunal”), which had affirmed a decision of a delegate of the first respondent refusing to grant the applicant a Protection (Class XA) visa.
The primary judge dismissed the application pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) on the basis that the applicant had failed to demonstrate an arguable case of jurisdictional error by the Tribunal. That decision was interlocutory. Accordingly, s 24(1A) of the Federal Court of Australia Act1976 (Cth) requires that the applicant seek leave to appeal.
Before the Tribunal, the applicant claimed that the Chinese government had confiscated his family’s land and provided compensation in an amount substantially less than had been promised. He claimed that his parents attempted to sue the government, but, as a result, they were beaten by government officials. He claimed that his parents were admitted to hospital, but could not afford to pay their hospital bill and were required to borrow money from a loan shark at a high rate of interest. He claimed that they were unable to repay the loan shark, who had then threatened his parents. He claimed that his parents were in hiding. He also claimed that if he were to return to China, he would inherit the debt and would be harmed by the loan shark. In addition, he claimed that he would be persecuted by the Chinese government because of his parents’ attempt to sue them.
The Tribunal found that the applicant was not a credible witness. It found that his evidence was vague, highly improbable, contradictory and lacking in detail. The Tribunal concluded that the applicant had fabricated his claims in an attempt to extend his stay in Australia. The Tribunal did not accept the applicant’s claims that his family members had attracted the adverse interest of the Chinese authorities and any loan shark in China. The Tribunal did not accept that the applicant would be at risk of harm if he returns to China. The Tribunal found that the applicant did not meet the criterion for a protection visa set out in ss 36(2)(a) or in 36 (2)(aa) of the Migration Act 1958 (Cth). Accordingly, the Tribunal affirmed the delegate’s decision not to grant the applicant a Protection (Class XA) visa.
Before the primary judge, the applicant raised three grounds. They were:
1.The Tribunal underestimated my risk of being persecuted by the Chinese authority. This was a judicial error since the Tribunal failed to properly make the well-founded fear test as per MIEA v Guo Wei Rong & Anor (1997) 191 CLR 55. I fear to go back to China since the persecution was happened to my parents. Also, it was not a rare case that land acquisition causing protest and persecution in China.
2.Tribunal unfairly refused to offer me protection saying my case was not covered by Convention. The Tribunal made an acceptable judgment about my situation; neither did it reflect the truth in a logic way. My case was not only a dispute regarding land value, but also I had different opinion against the Chinese authority.
3.The Tribunal failed to consider the complementary protection in my case. If a person is found not to engage the refugee criterion in cl 866.221(2) he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a person to whom the Minister is satisfied Australia has protection obligations because the Minister has 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 or she will suffer significant harm: cl 866.221(4) (the Complementary Protection Criterion). I will face serious persecution if I return to China, but the Tribunal made no test on this aspect.
(Errors in original.)
As to the first ground, the primary judge considered that the applicant appeared to be complaining about the Tribunal’s rejection of the applicant’s claims, and that the complaint was, in truth, a complaint about the merits of the Tribunal’s decision. The primary judge held that the Tribunal’s finding was open to it on the evidence and that the first ground raised no arguable case of jurisdictional error.
The primary judge also held that the second ground raised no arguable case of jurisdictional error. His Honour held that to the extent that the ground raised an allegation of denial of procedural fairness, there was no substance in the complaint. The Tribunal had put its concerns about the applicant’s evidence to him, identified the information that it considered would be a part of the reason for affirming the decision under review and gave the applicant an opportunity to respond in accordance with the requirements of the Migration Act. The primary judge also held that to the extent that the second ground alleged that the Tribunal’s reasoning was illogical or irrational, that ground could not be sustained.
As to the third ground, the primary judge held that the Tribunal did consider the applicant’s claims for complementary protection.
The primary judge concluded that the applicant had failed to demonstrate an arguable case of jurisdictional error on the part of the Tribunal. Accordingly, the primary judge ordered that the application be summarily dismissed pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules.
Before this Court, the applicant raises four grounds. They are:
1. he Tribunal failed to consider the complementary protection in my case.
2. RRT has denied me procedural fairness by failing to provide adequate reasons for the finding of a fact.
3. Tribunal unfairly refused to offer me protection saying my case was not covered by the Convention.
4. The Tribunal under evaluated the risk of serious harm that I will face if going back to China.
(Errors in original.)
The applicant was not legally represented in the hearing, but made submissions with the assistance of an interpreter. The applicant’s submissions were confined to saying that the Tribunal did not give a definite reason why his application was rejected, and that the Tribunal had underestimated the risk of persecution that the applicant will face if he returns to China.
There is no substance in the first ground raised by the applicant. In paragraph 45 of its reasons the Tribunal expressly considered complementary protection.
As to the second ground, the “finding of a fact” referred to by the applicant has not been identified. The Tribunal’s reasons are, in my opinion, entirely adequate. There is no substance in the second ground.
The third and fourth grounds appear to invite the Court to engage in merits review of the Tribunal’s decision. The Court has no power to engage in such merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, 291–292. The Court’s role is confined to determining whether there was jurisdictional error in the Tribunal’s decision.
The applicant has failed to demonstrate an arguable case of jurisdictional error in the Tribunal’s decision. The application must be dismissed with costs.
I note that the applicant sought an adjournment on the basis that he would obtain further evidence in support of his claim for protection. I rejected his application for adjournment on the basis that further evidence would not assist him in the present application, given that the Court is confined to identifying any jurisdictional error on the part of the Tribunal.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate:
Dated: 3 September 2015
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