SZUUI v Minister for Immigration and Border Protection

[2016] FCA 1595

FEDERAL COURT OF AUSTRALIA

SZUUI v Minister for Immigration and Border Protection [2016] FCA 1595

Appeal from:	SZUUI & Anor v Minister for Immigration & Anor [2016] FCCA 1331
File number:	NSD 1044 of 2016
Judge:	DOWSETT J
Date of judgment:	2 November 2016
Catchwords:	MIGRATION – protection visa – whether primary Judge failed to take into account s 91R
Legislation:	Migration Act 1958 (Cth)
Date of hearing:	2 November 2016
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	10
Counsel for the First Appellant:	The First Appellant appeared in person with the assistance of an interpreter
Counsel for the Second Appellant:	The Second Appellant did not appear
Solicitor for the First Respondent:	Ms N Maddocks of DLA Piper Australia
Counsel for the Second Respondent:	The Second Respondent submits to any order of the Court, save as to costs

ORDERS

NSD 1044 of 2016

BETWEEN:

SZUUI

First Appellant

SZUUJ

Second Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	DOWSETT J
DATE OF ORDER:	2 NOVEMBER 2016

THE COURT ORDERS THAT:

1.the appeal be dismissed; and

2.the appellants pay the first respondent’s costs of the proceeding.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

DOWSETT J:

1. This is an appeal from a decision of the Federal Circuit Court dismissing an application to review a decision of the second respondent (the “Tribunal”). The first appellant is a citizen of India. The second appellant is his wife. Her claim depends upon the success of his claim. The appellants arrived in Australia on tourist visas issued on 14 January 2013. On 8 April 2013, they lodged an application for protection class XA visas under s 65 of the Migration Act 1958 (Cth) (the “Act”), claiming to be refugees. On 19 November 2013, the Minister’s delegate refused the application. The delegate also held that the appellants were not entitled to rely upon the complementary protection provisions for the purpose of obtaining the relevant visa.

2. In view of the way in which the proceedings have been conducted, it is not necessary that I say very much about the appellants’ claim.  The first appellant claims to fear persecution in India.  His father’s former business partner was a member of the Bharatiya Janata Party (the “BJP”).  The partner was apparently in league with a senior member of the BJP in the area, a Mr Chaudry.  The first appellant’s father was a member of the Congress Party.  He claimed to fear persecution because of previous business dealings between the appellant’s father, Mr Chaudry and himself. 

3. The Tribunal found that the first appellant’s oral evidence was inconsistent with the content of a written statement provided in support of the application.  In rejecting his evidence, the Tribunal necessarily concluded that there was no evidence before it to support the appellants’ claim to be persons to whom Australia owed protection obligations or who could rely upon the complementary protection provisions.

4. The appellants applied to the Federal Circuit Court for a review of that decision.  The grounds of that application were that:

   ·the Tribunal had denied the appellants procedural fairness by reaching adverse conclusions that certain aspects of their claims were implausible (being conclusions that were not obviously open on the known material), without giving the appellants the opportunity to be heard in respect of those matters;

   ·the Tribunal’s decision was unjust and made without taking into account, the full gravity of the appellants’ circumstances and consequences of the claims;

   ·the Tribunal did not consider the fact that the first appellant had been under immense and intimidating pressure from Mr Chaudry;

   ·the Tribunal failed to accord procedural fairness to the appellants in giving little weight to the first appellant’s evidence, based upon inconsistencies in their application for protection visas; and

   ·the Tribunal failed to assess the appellants’ claim in a manner which was “required as mandatory” pursuant to s 414 of the Act, applying the law incorrectly and committing jurisdictional error.

5. The appellants were permitted, in the course of the proceedings at first instance, to file an amended application in which the identified grounds were that:

   (1)the Tribunal committed jurisdictional error in failing to address the appellants’ claim “in the way it was made” in that:

   ·the first appellant stated in his protection visa application that he was a businessman by profession in India;

   ·the Tribunal did not consider the way in which he claimed that his father’s business partner, who was a leader of the BJP, had threatened to kill him because of his affiliation with the Congress Party, and that he therefore sold the business to him or Mr Chaudry;

   ·the Tribunal did not consider that the first appellant had suffered violence prior to his departure from India;

   ·the Tribunal did not consider that the first appellant and his father were attacked and beaten by his business partner and men working for Mr Chaudry; and

   (2)the Tribunal had no jurisdiction to make the said decision because reasonable satisfaction was not arrived (at) in accordance with the requirements of the Act.

6. The Circuit Court Judge summarized the proceedings before the Tribunal, identifying the inconsistencies which the Tribunal had found in his evidence.  Her Honour considered the grounds identified in the original application and those identified in the amended application, in the end dismissing the application. 

7. The first ground of appeal asserts that her Honour acted in a manifestly unreasonable way and ignored the aspect of persecution and harm, referring particularly to s 91R which at the relevant time dealt with the meaning of the term “persecution”.  The section has since been repealed.  The submission is simply incorrect.  The function performed by her Honour was to review the decision to identify any excess of jurisdiction or failure to exercise the jurisdiction.  There is simply no justification for the assertion that she ignored any aspect of the case, particularly the appellants’ claim to fear persecution and harm in India.

8. The second ground is that the Circuit Court failed to take into consideration the fact that the Tribunal’s decision was unjust and made without taking into account the full gravity of the circumstances and consequences.  The ground is without particularity and without merit.  Today, the first appellant has, in effect, asserted that both in the Tribunal and in the Circuit Court, his evidence was not accepted.  As he put it, he was not trusted.  He also asserts that in both the Tribunal and the Circuit Court, he was simply unable to put his case.  He did as much as he could, but it was apparently insufficient. 

9. Clearly, the appellants have not identified any basis upon which the Circuit Court Judge could have set aside the decision of the Tribunal.  To the limited extent to which the grounds of appeal were particularized, they were plainly without merit.  In the circumstances, the appeal must be dismissed. 

10. In reviewing these reasons, I have realized that I misunderstood the appellants’ first ground of appeal.  The ground does not allege manifest unreasonableness by the primary Judge, that her Honour ignored aspects of the case, or that her Honour failed to discharge any statutory obligation.  Rather the first ground asserts that the primary Judge failed to consider such conduct by the Tribunal.  In light of the way in which her Honour dealt with the grounds initially advanced and the amended grounds, there can be no room for such a criticism.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:        3 February 2017