SZUXS v Minister for Immigration and Border Protection
[2015] FCA 1338
•27 November 2015
FEDERAL COURT OF AUSTRALIA
SZUXS v Minister for Immigration and Border Protection [2015] FCA 1338
Citation: SZUXS v Minister for Immigration and Border Protection [2015] FCA 1338 Parties: SZUXS v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: NSD 776 of 2015 Judge: REEVES J Date of judgment: 27 November 2015 Catchwords: MIGRATION – application for leave to appeal from a decision of the Federal Circuit Court – whether any error in decision of the Federal Circuit Court
Held: no error demonstrated – application dismissed
Legislation: Federal Circuit Court Rules 2001 (Cth)
Federal Court of Australia Act 1976 (Cth)Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Bienstein v Bienstein (2003) 195 ALR 225; [2003] HCA 7
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833
Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
SZUXS v Minister for Immigration [2015] FCCA 1267
SZUXS v Minister for Immigration & Anor (No. 2) [2015] FCCA 1690Date of hearing: 25 November 2015 Place: Sydney Division: GENERAL DIVISION Category:
Catchwords
Number of paragraphs: 23 Counsel for the Applicant: The Applicant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Ms N Blake, Clayton Utz 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 776 of 2015
BETWEEN: SZUXS
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second RespondentJUDGE:
REEVES J
DATE OF ORDER:
27 NOVEMBER 2015
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The applicant’s application for leave to appeal is dismissed.
2.The applicant is to pay the first respondent’s costs of this application, fixed in the sum of $3,300.00.
3.The name of the second respondent, “Refugee Review Tribunal”, 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 776 of 2015
BETWEEN: SZUXS
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
REEVES J
DATE:
27 NOVEMBER 2015
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
The applicant has applied for leave to appeal a decision of a Judge of the Federal Circuit Court delivered in June 2015: see SZUXS v Minister for Immigration & Anor (No. 2) [2015] FCCA 1690 (SZUXS No 2).
The orders of the Federal Circuit Court dismissed the applicant’s application to set aside an earlier order of the Federal Circuit Court which, in turn, dismissed the applicant’s substantive application for judicial review, under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules), because he had failed to appear at a show cause hearing under r 44.12 of the FCC Rules: see SZUXS v Minister for Immigration [2015] FCCA 1267 (SZUXS No 1).
Both dismissal orders are plainly interlocutory in nature. The applicant therefore requires leave to appeal the orders in SZUXS No 2: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth). An applicant for such leave needs to establish that the decision concerned is attended with sufficient doubt to warrant its reconsideration on appeal and that substantial injustice will result if leave to appeal were refused: see Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398–399 and Bienstein v Bienstein (2003) 195 ALR 225; [2003] HCA 7 at [25].
THE GROUNDS OF THIS APPLICATION FOR LEAVE TO APPEAL
The four grounds the applicant provided in support of his application for leave to appeal are as follows:
1.Hon. Judge Failed to Hold Refugee Review Tribunal made a jurisdictional error of the law and did not consider appellant appeal.
2.His honour failed to hold that the Tribunal did not give him time to produce evedience.
3.Applicant sought that if he get time than he can produce the more material to RRT.
4.Applicant claim that without checking the document RRT gave the decesion.
(Errors in original)
In addition, the applicant provided two proposed grounds of appeal. They are as follows:
1.Hon. Judges. failed to hold Migration Review Tribunal made a jurisdictional error of the law and did not consider appellant appeal.
2.His honour failed to hold that the Tribunal did not give time to appear and explain his situation.
(Errors in original)
Self-evidently, these two proposed grounds essentially replicate the first two grounds of this application above.
THE FACTUAL BACKGROUND TO THE APPLICANT’S CLAIMS
The factual background to the applicant’s claims is conveniently summarised in SZUXS No 1 in the following terms:
[3]The applicant is a national of the Republic of India, who applied for the protection visa on 29 March 2012.
…
[5]… The applicant claimed to fear harm [in India] for the following reasons:
a)the applicant was a successful finance broker in India, and was elected as President of a finance association that had the backing of certain local politicians. Due to his success as a finance broker, supporters of the opposing political party (Congress Party) arranged for him to be arrested in relation to a business deal involving another finance broker (Bamba);
b)Bamba was associated with the Congress Party, which threatened and defamed the applicant, damaged his business, beat his employee, and thwarted one of his business deals. On one occasion, the applicant was hit with a brick while walking along the road;
c)the applicant's name was subsequently put forward as a candidate for the Legislative Assembly. Following publication of his name, harassment from the Congress Party increased and the applicant was forced to quit politics;
d)the applicant's son was abducted, and only returned after payment of a ransom. The applicant was continuously threatened by police and gangsters. On one occasion he ignored a threat to close his business and subsequently a gang attacked his staff at a restaurant shortly after his family had left, killing one member of staff. On another occasion, 200 people attended and destroyed his office; and
e)the authorities will not protect him because the local police and state government are involved.
In November 2012, a delegate of the Minister refused the applicant’s application for a protection visa, after which he applied to the Refugee Review Tribunal (the Tribunal) for a merits review of that decision. The Tribunal affirmed the delegate’s decision in July 2014 and the applicant then commenced his judicial review proceedings in the Federal Circuit Court which, as noted above, were dismissed in SZUXS No 1.
THE TRIBUNAL’S DECISION REJECTING THE APPLICANT’S CLAIMS
The Tribunal was not satisfied that the applicant was a person to whom Australia owed any protection obligations. In particular, the Tribunal was:
… not satisfied as to the applicant’s claims other than it accept[ed] that the applicant had some role in finance, and some dealings with an organisation called Mahindra, and that a man in his area was killed (with no connection to the applicant).
In reaching this conclusion, the Tribunal made a number of adverse observations and comments about the applicant’s credibility: see SZUXS No 1 at [6] and [7].
THE TWO DISMISSAL DECISIONS IN THE FEDERAL CIRCUIT COURT
The applicant’s application for judicial review in the Federal Circuit Court raised two grounds of review. They were as follows:
1.RRT didn’t give me a chance to put my side properly.
2.The Proof I have submitted in RRT, they are not ready to consider it genuine, which I want to present in Federal Circuit Court to support my side.
(Errors in original)
Under r 44.12 of the FCC Rules, the applicant’s application was listed for a show cause hearing in May 2015. As is already noted above, when the applicant failed to appear at that hearing, his application for judicial review was dismissed: see SZUXS No 1 at [13].
In late May 2015, the applicant applied to set aside the dismissal order in SZUXS No 1. This application was described by the Federal Circuit Court Judge as a “reinstatement of the show cause application”: see SZUXS No 2 at [1]. I take that to be an appellation for an application to set aside the dismissal order under r 16.05(2)(a) of the FCC Rules. In SZUSX No 2, his Honour recorded that:
[1]…The reinstatement application is supported by an affidavit by the applicant in which he explains that he was suffering from viral bronchitis and fever on the day of the hearing. He states he was feeling dizziness because of the effect of medicine which he was taking for fever. He apologises for his non-attendance.
[2]Annexed to the affidavit is a medical certificate from a Dr Anil Gupta of Strathfield. Dr Gupta on 12 May 2015 certified that the applicant was suffering from viral bronchitis and was unable to attend work or studies between 11 May and 15 May. Given that the certificate was issued two days before the scheduled hearing it is surprising that it was not supplied prior to that scheduled hearing. I detailed in my earlier judgment the circumstances of the Court’s inability to contact the applicant at the time of the hearing. Nevertheless, I am willing to accept on the basis of the affidavit evidence and the medical certificate that the applicant has advanced a satisfactory explanation for his non-attendance on 14 May this year.
However, while his Honour was willing to accept the applicant’s explanation for his non-appearance at the show cause hearing, he ultimately concluded that “no useful purpose would be served by the reinstatement of the show cause application”: see SZUSX No 2 at [14]. In reaching that conclusion, his Honour addressed each of the applicant’s two grounds of review (see at [10] above).
On the first ground, his Honour concluded that there “is nothing in the available material to support the applicant’s assertion” that the Tribunal had failed to afford the applicant a fair hearing: see SZUSX No 2 at [6]. On the second ground, his Honour found that the Tribunal’s concerns regarding the applicant’s documentary evidence were informed by its credibility findings, by inconsistencies between the documents and other evidence provided by him, and by independent country information regarding the prevalence of document fraud in India: see SZUSX No 2 at [9]–[13].
THE CONTENTIONS ON LEAVE TO APPEAL SZUXS NO 2
The Minister contended that the decision of the Federal Circuit Court in SZUXS No 2 was not attended by sufficient doubt to warrant its reconsideration on appeal. He contended that none of the applicant’s grounds of this application, nor his proposed grounds of appeal (see at [4] and [5] above), identified any error on the part of the Federal Circuit Court, and nor did they provide any basis upon which to impugn the decision in SZUXS No 2.
The applicant did not file any written submissions. When he appeared at the hearing of this application, he claimed that the documents he had placed before the Tribunal were not fraudulent and he was dissatisfied with the Tribunal’s decision. Significantly, he did not mention the decision of the Federal Circuit Court which he is now seeking leave to appeal.
NO APPELLABLE ERROR IS DEMONSTRATED
The primary purpose of an appeal to this Court from a judgment of the Federal Circuit Court is the correction of error on the part of that Court: see Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 at [23] and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833 at [21]–[22] per Allsop J (as his Honour then was), with whom Drummond and Mansfield JJ agreed. This primary purpose requires, in an application of this kind, that close attention be given to the error, or errors, the applicant alleges were made by the Federal Circuit Court Judge in the decision which he is seeking leave to appeal.
The first thing to be noted about the applicant’s four grounds for this application (see at [4] above) is that they are all directed to identifying errors in support of his substantive application for judicial review, rather than identifying errors in the Federal Circuit Court Judge’s decision to dismiss his application seeking to set aside the order dismissing that substantive application. Nonetheless, since the main reason the Federal Circuit Court Judge gave for dismissing the applicant’s application was that his substantive application was devoid of merits (see at [13]-[14] above), I will proceed to deal with this application on that footing.
The applicant’s first ground is wholly unparticularised. It does not identify what the applicant alleges either the Tribunal, or more importantly, the Federal Circuit Court Judge, “did not consider”. On its face, this ground is therefore incapable of establishing appellable error.
In grounds two and three, the applicant asserts that the Tribunal did not give him sufficient time to produce evidence. As the Federal Circuit Court Judge pointed out in his decision (see SZUXS No 2 at [13]), the applicant provided no evidence to the Federal Circuit Court that he had sought additional time from the Tribunal, or that such a request, if made, had been refused. Indeed, the Tribunal’s hearing record recorded that the applicant had informed the Tribunal that he did not need any additional time to respond to the information put to him: see SZUXS No 2 at [13]. These grounds do not therefore demonstrate any appellable error.
It is unclear what the applicant is seeking to assert in his fourth ground. He does not specify what documents he contends the Tribunal should have “checked” or what “checks” the Tribunal should have performed. Moreover, as the Federal Circuit Court Judge observed, the Tribunal was entitled to have the concerns it did regarding the documentary evidence submitted by the applicant. Those concerns were informed by the various matters identified in SZUXS No 1 at [7]. I do not therefore consider that any error is demonstrated by this ground.
CONCLUSION
For the above reasons, the applicant has not demonstrated that the decision in SZUXS No 2 is attended by sufficient doubt such that it should be reconsidered on appeal, nor that substantial injustice would result if leave to appeal were to be refused. The applicant’s application for leave to appeal the decision in SZUXS No 2 must therefore be dismissed.
The Minister has filed an affidavit in support of a fixed costs order in the sum of $3,300. Since there is no apparent reason why costs should not follow the event and I consider that estimate of costs to be reasonable, I will make an order that the applicant pay the first respondent’s costs fixed at that amount.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves. Associate:
Dated: 27 November 2015
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