SZUST v Minister for Immigration and Border Protection

[2015] FCA 1410

FEDERAL COURT OF AUSTRALIA

SZUST v Minister for Immigration and Border Protection [2015] FCA 1410

Citation:	SZUST v Minister for Immigration and Border Protection [2015] FCA 1410
Appeal from:	Application for extension of time and leave to appeal: SZUST v Minister for Immigration & Anor [2015] FCCA 1970
Parties:	SZUST v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL
File number:	NSD 883 of 2015
Judge:	RANGIAH J
Date of judgment:	26 November 2015
Catchwords:	MIGRATION – application for leave to appeal from Federal Circuit Court – refusal to grant protection visa – no arguable case of jurisdictional error – application dismissed
Legislation:	Federal Circuit Court Rules 2001 (Cth) r 44.12(1)(a)
Cases cited:	Décor Corporation Proprietary Limited v Dart Industries Inc. (1991) 33 FCR 397 cited Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited
Date of hearing:	26 November 2015
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	9
Counsel for the Applicant:	The applicant appeared in person with the assistance of an interpreter
Solicitor for the First Respondent:	Ms M Stone of DLA Piper Australia
Counsel for the Second Respondent:	The second respondent filed a submitting notice

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 883 of 2015

BETWEEN:

SZUST
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	RANGIAH J
DATE OF ORDER:	26 NOVEMBER 2015
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant pay the first respondent’s costs of the application.

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 883 of 2015

BETWEEN:

SZUST
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	RANGIAH J
DATE:	26 NOVEMBER 2015
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time to seek leave to appeal and for leave to appeal against a judgment of the Federal Circuit Court of Australia delivered on 15 July 2015.  The primary judge summarily dismissed the applicant’s application for judicial review of a decision of the second respondent (“the Tribunal”) affirming a decision of the first respondent to refuse the applicant the grant of a Protection (Class XA) visa. 

2. As the application was filed within 14 days of the judgment of the Federal Circuit Court, the applicant does not require an extension of time. However, he does require a grant of leave to appeal as the order was made pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), and such an order is interlocutory.

3. Leave is not usually granted unless the applicant can show that there is sufficient doubt as to the correctness of the judgment below and there would be substantial injustice if leave were refused:  Décor Corporation Pty Ltd v Dart Industries Inc. (1991) 33 FCR 397.

4. The applicant is a citizen of China.  On 31 January 2013, he applied for a Protection (Class XA) visa.  The applicant claimed to fear persecution by the Chinese authorities because his father was involved with an underground religious organisation called Yi Guan Dao and his father had been detained and tortured.  The applicant claimed that he had photocopied booklets about Yi Guan Dao for his father and that he was also at risk of being detained. 

5. The Tribunal found that the applicant had fabricated his claims.  Amongst other things, the Tribunal pointed to country information indicating that there had been no arrests of Yi Guan Dao practitioners since 1994.  The Tribunal also considered that the applicant’s delay in applying for a protection visa was inconsistent with his claims, and that his ability to leave China using his own passport indicated that he was not of interest to the authorities. 

6. Before the Federal Circuit Court, the applicant’s grounds of review challenged the merits of the Tribunal’s decision.  The applicant made no oral or written submissions.  The Federal Circuit Court decided that the applicant had raised no arguable case of jurisdictional error and dismissed the application with costs. 

7. Before this Court, the applicant’s sole ground is, “The appellant found that the decision was unfair and feared of persecution if he returns to China”.  The only oral submissions the applicant made in support of his application was that he was waiting for additional evidence to arrive from China. 

8. The ground that the applicant wishes to raise in an appeal does no more than challenge the merits of the Tribunal’s decision: c.f.  Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. It was open to the Tribunal on the evidence before it to find that the applicant had fabricated his claims and to affirm the first respondent’s decision. Even if the applicant is able to produce further evidence in support of his claims, that evidence will not demonstrate that there was jurisdictional error on the part of the Tribunal.

9. The applicant has not raised any arguable case of jurisdictional error on the part of the Tribunal or appellable error on the part of the Federal Circuit Court.  The application will be dismissed with costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.

Associate:

Dated:        10 December 2015