SZUYX v Minister for Immigration and Border Protection
[2016] FCA 1063
•5 August 2016
FEDERAL COURT OF AUSTRALIA
SZUYX v Minister for Immigration and Border Protection [2016] FCA 1063
Appeal from: Application for leave to appeal: SZUYX v Minister for Immigration & Anor [2016] FCCA 603 File number(s): NSD 452 of 2016 Judge(s): SIOPIS J Date of judgment: 5 August 2016 Date of hearing: 5 August 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 21 Counsel for the Applicant: The Applicant appeared in person. Counsel for the First Respondent: Ms N Maddocks Solicitor for the First Respondent: DLA Piper Australia ORDERS
NSD 452 of 2016 BETWEEN: SZUYX
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
SIOPIS J
DATE OF ORDER:
5 AUGUST 2016
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay the costs of the respondent.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
SIOPIS J:
This is an application for leave to appeal against the judgment of the Federal Circuit Court of Australia.
The primary judge dismissed an application for judicial review of the decision of the Refugee Review Tribunal (the Tribunal), now the Administrative Appeals Tribunal, which affirmed the decision of a delegate of the first respondent to refuse the applicant’s application for a protection visa.
The applicant filed an application for a protection visa on 12 April 2013. The applicant claimed that he was a Buddhist monk from Bangladesh. He claimed that he had been targeted by local authorities and Muslims in his local area by reason of his Buddhist religion and his Barua ethnicity.
The applicant further claimed that his father had been particularly targeted because he was a local community leader. In particular, the applicant referred to an event in January 2009 in which, during Buddhist celebrations, local Muslims had attacked the Buddhist temple and a Muslim leader, Mr Abdul Jalil, was injured. The applicant claimed that his father was charged in connection with those events and was subsequently arrested and later granted bail.
The applicant also claimed that, in April 2009, his father was assaulted by local Muslims and that he was threatened with kidnapping. The applicant said that by reason of those events, he went into hiding at a local monastery before fleeing Bangladesh for India on 15 October 2010.
THE TRIBUNAL
The applicant applied to the Tribunal for review of the delegate’s decision. The decision of the Tribunal was subsequently set aside because the Tribunal had failed to consider important aspects of the evidence adduced by the applicant.
There was a second hearing before a reconstituted Tribunal. Following this hearing, the Tribunal affirmed the decision of the delegate.
The Tribunal found, for credibility reasons, that the events which the applicant had described had not taken place. In a thorough analysis, the Tribunal considered whether there was a real chance of the applicant being persecuted on a number of grounds, namely, his Buddhist religion, his Barua ethnicity, the fact that he was a Buddhist monk, by reason of having been associated with his father or having his father’s political views attributed to him.
The Tribunal also had regard to the country information and found that the chance that the applicant would be harmed by reason of his religion or ethnicity was remote. The Tribunal went on to find that, if the applicant was to return to Bangladesh, he would not suffer serious harm.
The Tribunal then considered whether Australia owed the applicant complementary protection obligations and found that by reason of the findings that it had already made, there were no substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia there was a real risk he would suffer significant harm.
THE FEDERAL CIRCUIT COURT
The applicant then brought an application for judicial review of the Tribunal’s decision. That application was dismissed by the primary judge under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The primary judge correctly observed that the review application had not alleged any jurisdictional error by the Tribunal.
However, the primary judge, of his own accord, considered the Tribunal’s decision and found that that there was no arguable case of jurisdictional error.
More particularly, the primary judge observed that the Tribunal had complied with its procedural fairness obligations set out in Div 4 of Pt 7 of the Migration Act 1958 (Cth) and it was open to the Tribunal to find that the applicant was not a credible witness.
The primary judge also observed that the choice of weight the Tribunal assigned to corroborating documents was a matter for the Tribunal and that the Tribunal did not fall into jurisdictional error by first making an assessment of the applicant’s credit before giving consideration to the corroborative evidence.
THE APPLICATION FOR LEAVE TO APPEAL
In this Court, the applicant filed a draft notice of appeal which stated:
The FCC made an administrative mistake by not considering my appeal against AAT.
The applicant’s oral submissions before this Court were directed solely towards the merits of his claim for a protection visa. In essence, the applicant complained that the Federal Circuit Court had not asked him questions and had not embarked upon a review of the merits of his claim.
It is apparent that the applicant has misconceived the function of the Federal Circuit Court in considering an application for judicial review of the Tribunal’s decision. Accordingly, the applicant has failed to demonstrate any appealable error by the primary judge.
I advised the applicant that the jurisdiction of this Court also does not extend to a merits review of his claim for a protection visa; and gave the applicant an opportunity to identify any error by the primary judge upon which he might seek to rely. However, the applicant was unable to demonstrate to this Court any appealable or potential appealable error by the primary judge.
In any event, I am satisfied from my own review of the primary judge’s decision that there is no arguable error by the primary judge.
Accordingly, the applicant’s application for leave to appeal is dismissed.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate:
Dated: 31 August 2016
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