SZVRG v Minister for Immigration and Border Protection
[2017] FCA 1386
•24 November 2017
FEDERAL COURT OF AUSTRALIA
SZVRG v Minister for Immigration and Border Protection [2017] FCA 1386
Appeal from: Application for leave to appeal: SZVRG v Minister for Immigration and Border Protection [2017] FCCA 1666 File number: NSD 1299 of 2017 Judge: MARKOVIC J Date of judgment: 24 November 2017 Catchwords: MIGRATION – application for leave to appeal – where proposed grounds of appeal identify no appellable error in primary judge’s decision – where no substantial injustice to applicant – whether to grant leave to appeal – application dismissed Legislation: Federal Court of Australia Act 1976 (Cth) s 24(1A)
Migration Act 1958 (Cth)
Cases cited: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Date of hearing: 24 November 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 21 Counsel for the Applicant: The applicant appeared in person Solicitor for the First Respondent: Mr A Day, DLA Piper Australia Counsel for the Second Respondent: The second respondent filed a submitting notice, save as to costs ORDERS
NSD 1299 of 2017 BETWEEN: SZVRG
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
MARKOVIC J
DATE OF ORDER:
24 NOVEMBER 2017
THE COURT ORDERS THAT:
1.The applicant’s application for leave to appeal filed on 1 August 2017 be dismissed.
2.The applicant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)MARKOVIC J:
The applicant, who is a citizen of India, seeks leave to appeal from a judgment of the Federal Circuit Court of Australia (Federal Circuit Court) given on 18 July 2017 dismissing an application for judicial review pursuant to s 476 of the Migration Act 1958 (Cth) (Act) of a decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal): see SZVRG v Minister for Immigration & Anor [2017] FCCA 1666 (SZVRG).
Because the primary judge’s orders were made pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (Rules), they are interlocutory. Thus, the applicant requires leave to appeal from those orders pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth).
The applicant applied for a Protection (Class XA) visa (Visa) on 5 September 2013. The applicant claimed to fear harm in India from “goons” affiliated with the Congress Party. He claimed that he was an active member of the Bharatiya Janata Party (BJP) and that he campaigned for the BJP candidate in the 2008 MLA elections. He claimed that, during the election, Congress Party supporters, mainly Muslim goons, threatened to kill him and that, after the election, the goons affiliated with the Congress Party attacked him. The applicant also claimed that he was attacked while he was campaigning for his party candidate and that his family members were intimidated by the local Muslims affiliated with the Congress Party.
On 11 March 2014 a delegate of the first respondent (Minister) refused to grant the applicant the Visa. On 3 April 2014 the applicant applied to the Tribunal for review of the delegate’s decision. On 9 October 2014 the applicant appeared before the Tribunal to give evidence. On 22 October 2014 the Tribunal affirmed the decision under review.
The Tribunal found that the applicant was not a witness of truth in relation to critical aspects of his claims. It did not accept that the applicant was attacked or threatened, or that members of his family were threatened, by supporters or affiliates of the Congress Party because of the applicant’s activities with the BJP. In summary, the Tribunal’s findings were based on inconsistencies in the applicant’s oral evidence and written statement, its finding that some of the applicant’s claims were implausible and the Tribunal’s concerns about the time that had elapsed between the claimed threats beginning in 2008 and the applicant’s departure from India in 2013.
While the Tribunal accepted that the applicant may have been involved in some short-term, low-level campaigning activity in 2008, it did not accept that he is or was a member of the BJP; that he was threatened or attacked for his political activities; nor that he continued to be threatened because of any political activities. Nor did the Tribunal accept that the applicant’s family was threatened and intimidated or that the applicant had a subjective fear of returning to India for the reasons claimed. The Tribunal did not accept that anyone was looking for the applicant to attack him due to any past political activity and it did not accept that he would be killed or otherwise harmed if he returned to India now or in the reasonably foreseeable future.
THE FEDERAL CIRCUIT COURT PROCEEDING
The applicant sought judicial review of the Tribunal’s decision. The Federal Circuit Court convened a show cause hearing pursuant to r 44.12 of the Rules.
The applicant raised five grounds of review in his application filed with the Federal Circuit Court, as written:
1. The Refugee Review Tribunal denied the applicant procedural fairness by reaching adverse conclusions that applicant claims were implausible, being conclusions that were not obviously open on the known material, without giving the applicant opportunity to make comments in respect of those matters.
2. The Tribunal failed to consider an integer of the applicants claim, in failing to consider whether or not a BJP activist in India was at risk of harm from Congress Party, and not able to access effective protection.
3. The Tribunal had no jurisdiction to make the said decision because its reasonable satisfaction was not arrived in accordance with the provisions of the Migration Act.
4. The Tribunal’s decision was unjust and made without taking into account the full gravity of applicants circumstances and consequences of the claim.
5. The Tribunal has failed to investigate the claim, specially the grounds of persecution in India. Therefore the Tribunal decision dated on 22 October 2014 was a judicial error.
The applicant also provided written submissions which the primary judge treated as supplementing the grounds in the applicant’s application: see SZVRG at [22].
The primary judge made the following findings:
·in relation to ground one the primary judge found that there was no evidence to support the assertion that the applicant was not given an opportunity to make comments or put evidence at the hearing; that, on the face of the material before the court, the Tribunal had complied with its obligations of procedural fairness; that the adverse findings made by the Tribunal were open on the material before it; and that there was no obligation on the Tribunal to give the applicant a further opportunity to respond to adverse credibility findings;
·in relation to ground two the primary judge found that the Tribunal correctly identified the applicant’s claims concerning his involvement with the BJP and that the adverse credibility findings the Tribunal made were open to it;
·in relation to ground three the primary judge found that the Tribunal correctly identified the relevant law and that there was no provision of the Act in relation to which there was an arguable case of non-compliance by the Tribunal;
·in relation to ground four the primary judge found that the ground disagreed with the adverse findings made by the Tribunal and, in substance, invited the court to engage in merits review;
·in relation to ground five the primary judge found that the Tribunal correctly identified the applicant’s claims; that it was for the applicant to make out his case; and that this was not a case where the Tribunal had any duty to inquire; and
·the primary judge also rejected each of the matters raised by the applicant in his written submissions.
THE APPLICATION FOR LEAVE TO APPEAL
In his application for leave to appeal the applicant raises two grounds, as written:
1. The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claims and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation.
2. The learned Judge dismissed the application without considering the legal and factual errors contained in the decision of AAT.
The applicant also applies for an order dispensing with compliance with r 35.13 of the Federal Court Rules 2011 (Cth) which requires that an application for leave to appeal must be filed within 14 days after the date on which the judgment was pronounced or the order was made; or on or before a date fixed for that purpose by the court from which leave to appeal is sought. However, as the application was filed on 1 August 2017, it was filed within the time prescribed by r 35.13 and no order dispensing with compliance with that rule is required.
The applicant has filed an affidavit in support of his application which, among other things, annexes a draft notice of appeal. The draft notice of appeal raises the same grounds as those in the application for leave to appeal set out at [11] above.
In order to succeed in an application for leave to appeal an applicant must show that, in all the circumstances, the decision at first instance is attended with sufficient doubt to warrant its reconsideration by a Full Court and that substantial injustice would result if leave were refused, supposing the decision at first instance to be wrong: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399.
The applicant has not filed any written submissions in support of his application for leave to appeal. Today, when invited to make submissions, the applicant submitted that there was a problem with the Tribunal decision; that the interpreter had not interpreted accurately at the hearing; and that he could not understand what the interpreter was saying. The applicant first said that he raised that issue before the Federal Circuit Court, although in a later submission in reply he said that he did not raise the interpreter issue in the Federal Circuit Court because he was not asked about it. The applicant said that he did not raise the interpreter point in his draft notice of appeal because it was written by a friend and he cannot write in English. The applicant also contended that he was not happy with the decision made by the Tribunal and that he fears persecution if he returns to India.
The issue of poor interpretation was raised for the first time by the applicant at the hearing. It is not clear from the applicant’s submissions today whether he raised it as an issue before the primary judge. But it is not evident from the decision of the primary judge that he did so. The primary judge carefully set out the grounds in the applicant’s application in his judgment at [20], the contents of the applicant’s written submissions at [21] and the applicant’s oral submissions at [23]-[26]. It is apparent from the primary judge’s reasons that this issue was not raised before him.
The applicant has not prepared or tendered any evidence that would support such a claim. The Minister submitted that there was nothing to indicate that the applicant had issues with interpretation on the face of the Tribunal record. That is so, but perhaps not surprising given the applicant’s reliance on the interpreter and his apparent limited English language skills. However, given that this issue is raised now for the first time and without any evidence to support it, it does not seem to me that it is a sufficiently arguable ground.
As to the proposed grounds of appeal set out in the application for leave to appeal and repeated in the draft notice of appeal, they are, as submitted by the Minister, broad and formulaic. The primary judge identified that the Tribunal had complied with its statutory obligations in the conduct of the review; that it correctly identified the applicant’s claims; and that it made adverse credibility findings that were open to it and dispositive of the applicant’s claims.
The Tribunal had significant concerns about the applicant’s credibility. It was not satisfied that he had told the truth in relation to particular aspects of his evidence. The Tribunal’s findings about the credibility of the applicant’s evidence led it to conclude that there was no real chance that he would be harmed if he returned to India and that he did not have a well-founded fear of persecution. There is no foundation for the applicant’s allegation in the draft notice of appeal that the Tribunal ignored “the aspect of persecution and harm in terms of” s 91R of the Act.
The applicant has failed to demonstrate any doubt about the correctness of the judgment below. In my opinion, there is no arguable basis for the appellant’s proposed grounds of appeal. They do not identify any appellable error in the decision of the primary judge, nor do they identify any jurisdictional error in the decision of the Tribunal. It follows that the judgment of the Federal Circuit Court is not attended with sufficient doubt to warrant its reconsideration by a Full Court. Substantial injustice will not be done to the applicant by refusing leave to appeal.
CONCLUSION
The application for leave to appeal should be dismissed. The applicant should pay the first respondent’s costs. I will make orders accordingly.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic. Associate:
Dated: 12 December 2017
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