SZVUG v Minister for Immigration and Border Protection

[2015] FCA 934

FEDERAL COURT OF AUSTRALIA

SZVUG v Minister for Immigration and Border Protection [2015] FCA 934

Citation:	SZVUG v Minister for Immigration and Border Protection [2015] FCA 934
Appeal from:	Application for leave to appeal: SZVUG v Minister for Immigration and Border Protection [2015] FCCA 1857
Parties:	SZVUG and SZVUH v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL
File number:	NSD 694 of 2015
Judge:	FARRELL J
Date of judgment:	25 August 2015
Legislation:	Federal Circuit Court Rules 2001 (Cth) r 44.12 Federal Court of Australia Act 1976 (Cth) s 24(1A) Migration Act 1958 (Cth) ss 424A, 424AA
Cases cited:	Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 SZVUG v Minister for Immigration and Border Protection [2015] FCCA 1857
Date of hearing:	25 August 2015
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	29
Counsel for the First Applicant:	The first applicant appeared in person with the assistance of an interpreter
Counsel for the Second Applicant:	The second applicant did not appear
Solicitor for the First Respondent:	Ms B Griffin of Australian Government Solicitor
Counsel for the Second Respondent:	The second respondent submitted save as to costs

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 694 of 2015

BETWEEN:

SZVUG
First Applicant

SZVUH
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	FARRELL J
DATE OF ORDER:	25 AUGUST 2015
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The name of the second respondent be changed so as to read “Administrative Appeals Tribunal”.

2.The application be dismissed.

3.The applicants pay the first respondent’s costs, as agreed or taxed.

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 694 of 2015

BETWEEN:

SZVUG
First Applicant

SZVUH
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	FARRELL J
DATE:	25 AUGUST 2015
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal a judgment of Judge Emmett of the Federal Circuit Court of Australia delivered on 3 June 2015: see SZVUG v Minister for Immigration and Border Protection [2015] FCCA 1857 (“SZVUG”). The primary judge dismissed an application for judicial review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister to refuse the grant of Protection (Class XA) visas to the applicants. The primary judge dismissed the application under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth); it is an interlocutory decision: r 44.12(2).

2. The Minister made an application to amend the name of the second respondent to “Administrative Appeals Tribunal”. I granted that application.

   BACKGROUND

3. The applicants are citizens of India and are husband and wife. They arrived in Australia on 30 December 2013 on visitor visas. They applied for Protection (Class XA) visas on 24 February 2014; the husband made the relevant protection claim, and the wife applied as a member of his family unit. A delegate of the Minister refused to grant the visas on 16 May 2014.

4. The basis for the husband’s protection claim was set out in a statement and summarised in the Tribunal’s Statement of Decision and Reasons dated 12 November 2014 (“Decision Record”) at [20]. The husband claimed that his father was a local Congress party leader. The husband said he liked Congress ideology and did not support the Bharatiya Janata Party (“BJP”). He claimed that BJP leaders forced businesses to pay monthly donations to the party. The husband was a local businessman. In July 2009, the husband was elected as secretary of a business association and raised the illegal party donation issue with a local parliamentarian, who said that he would make inquiries. He received no response. He organised a rally to condemn BJP’s activities. The next day, some local BJP members came to the husband’s office, assaulted him, ransacked the office and threatened his staff. He reported the matter to the police, but the police were not interested. BJP members asked the husband’s suppliers not to take goods from his agency and not to pay money owed to him. The husband was forced to resign from his directorship of a bank. He continued to pursue his political activities. In November 2009, local BJP members came to his house and beat him, assaulted his wife and broke his father’s nose. The husband was forced to pay money to the BJP regularly until he left India secretly. He did not have enough money for tickets for his children. He had been informed that further attacks on his “members” and their properties were continuing unabated. At the hearing, the husband also claimed that his son had been kidnapped in 2009: [49].

   TRIBUNAL DECISION

5. The applicants applied to the Tribunal for review of the delegate’s decision on 10 June 2014. The husband appeared at a hearing before the Tribunal on 7 November 2014. The Tribunal affirmed the delegate’s decision on 12 November 2014.

6. The Tribunal found several significant inconsistencies between the husband’s evidence at the hearing and his written statement to the Minister’s Department: Decision Record at [71]. These were put to the husband at the hearing, and the Tribunal set out the major inconsistencies, discrepancies and omissions at [72]-[82] of the Decision Record.

7. There were inconsistencies in relation to: the nature of the husband’s political activities (Decision Record at [72]-[73]); the number of times and the period when the husband claimed to have been assaulted in his shop (Decision Record at [74]); and the husband’s evidence regarding the BJP coming to his home (Decision Record at [75]-[76]). The Tribunal found that the husband “could not explain these serious and significant inconsistences when they were put to him at [the] hearing”: Decision Record at [77]. The Tribunal also found that the husband’s failure to mention the kidnapping of his son in his written statement was significant: Decision Record at [78]. The Tribunal also considered that it was not plausible that the applicants would not have sought protection in New Zealand during their 3.5 years of residence in that country if they had genuine fears for their safety: Decision Record at [79]. The Tribunal also found various aspects of the husband’s claims implausible, specifically that the BJP members would wish to continue to harass and threaten the husband from 2009 until now: Decision Record at [80].

8. The Tribunal concluded at [83]-[84] of the Decision Record that it rejected all of the claims made by the applicant.

9. In the result, the Tribunal found that the husband was not owed a protection obligation, either as a refugee or as a beneficiary of complementary protection: Decision Record at [85]-[87].

   FEDERAL CIRCUIT COURT DECISION

10. The applicants filed an application seeking judicial review of the Tribunal’s decision on 8 December 2014. The husband attended a directions hearing on 5 March 2015, and the matter was set down for hearing pursuant to r 44.12 of the Federal Circuit Court Rules on 3 June 2015. The matter was dismissed pursuant to r 44.12(1)(a) on the same date.

11. The applicants’ application stated four grounds of review (as written):

    1.   The Second Respondent committed jurisdictional error by failing to address the applicant's claim in the way it was made;

    a.The applicant stated in his protection visa that he was an active member of Congress Party

    b.The opposition party BJP member assaulted the applicant and his family and threatened to kill him because of his opposition against BJP's illegal activities.

    2. 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.

    3.   The Tribunal's decision was unjust and made without taking into account the full gravity of applicants circumstances and consequences of the claim.

    4.   The Tribunal has failed to investigate the claim, specially the grounds of persecution in India.

    Therefore the Tribunal decision dated on 12 November 2014 was a judicial error.

12. The applicant had nothing further to say in support of his grounds at the hearing: SZVUG at [11].

13. The primary judge dismissed ground one because, on a fair reading of the Decision Record, the Tribunal did explore the husband’s claims with him in some detail at the hearing and put to him matters of concern it had about the evidence and noted his responses: SZVUG at [13]. In particular, the Tribunal had addressed the two claims particularised in ground one. The primary judge found that the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave: SZVUG at [16].

14. In relation to ground two, the primary judge noted that there were no further particulars or submissions to explain it: SZVUG at [19]. The primary judge held that the ground did not disclose an error capable of review by the Court below; there was nothing on the face of the Decision Record to suggest that the Tribunal did not comply with the statutory regime: SZVUG at [19].

15. The primary judge also noted that ground three was not accompanied by particulars or submissions, and the ground also did not identify error capable of review: SZVUG at [22]. The primary judge held that the Tribunal considered the husband’s claims in detail, and that the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave: SZVUG at [25].

16. In respect of ground four, the primary judge noted that the Tribunal has a duty of review, not a duty to inquire: SZVUG at [28]. The primary judge found there was no evidence that the Tribunal in this case failed to make an obvious inquiry about a critical fact whose existence was easily ascertained, and nor had any such failure been identified by the husband: SZVUG at [29].

17. In the result, the primary judge was not satisfied that the application raised an arguable case for the relief claimed.

    APPLICATION TO THIS COURT

18. There are two grounds in the application (as written):

    1.   The Federal Circuit court erred in finding that the applicants did not raise an arguable ground in the application.

    2.   The learned judge dismissed the application without considering the legal and factual errors contained in the decision of RRT.

19. The applicant appends a draft notice of appeal, which lists one ground (as written):

    1. The Federal Circuit Court Judge erred in finding that the Second Respondent failed to comply with the mandatory requirement under section 424A of the Migration Act.

    Particulars:

    The Tribunal did not issue any written invitation under section 424A of the Act and made no attempt to, and did not comply with the requirements set out in section 424AA of the Act.

20. As the primary judge’s judgment is interlocutory in nature, the applicants require leave to appeal to this Court: s 24(1A), Federal Court of Australia Act 1976 (Cth).

21. To justify a grant of leave to appeal, the applicant must show that there is sufficient doubt as to the correctness of the judgment below, and further, that if the judgment below is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

    CONSIDERATION

22. The husband appeared at today’s hearing with the assistance of an interpreter. His wife did not appear. The Minister’s written submissions were read to him and before he presented his submissions, he had an opportunity to hear the Minister’s oral submissions.

23. The husband noted current media reports of rallies in India in relation to inequities in the assignment of educational places and jobs, but did not have anything to add in relation to the ground of the draft notice of appeal. In relation to the grounds of his application for leave to appeal, he submitted that the Tribunal’s investigations of his claims had been inadequate and that if he had more time in Australia, the issues which caused him to leave India could be solved.

24. The Minister submits that the application for leave to appeal should be refused as the grounds sought to be raised on appeal are of insufficient merit to justify the grant of leave.

25. In relation to the ground in the draft notice of appeal, the Minister submits that, in fact, no finding was made by the primary judge to the effect that the Tribunal failed to comply with s 424A of the Migration Act 1958 (Cth). Further, the Minister submits that the applicants did not allege non-compliance with ss 424A or 424AA of the Migration Act in the Court below and leave should not now be granted to raise such an allegation for the first time on appeal as it has no merit. The Minister also submits that the particulars fail to identify any information which could enliven a duty under ss 424A or 424AA of the Migration Act on the part of the Tribunal; the Tribunal’s findings were based upon its subjective appraisal of the husband’s own evidence and claims which is not ‘information’ under these sections.

26. Regarding ground one of the application for leave, the Minister submits that there is no error in the approach of decision of the primary judge. The primary judge dismissed the first three grounds of the application to the Federal Circuit Court on the basis that the Tribunal’s findings were open to it on the material before it and for the reasons it gave. Her Honour found in relation to ground four that there was no evidence that the Tribunal had failed to make an obvious inquiry about a critical fact whose existence was easily ascertained.

27. The Minister submits ground two of the application for leave does not raise a meritorious ground of appeal because it is clear from the primary judge’s reasons that she gave careful consideration to the grounds of the application filed in the Court below, and she independently considered whether the Tribunal’s decision was affected by jurisdictional error. The primary judge’s conclusion that the Tribunal did not commit jurisdictional error was open to her for the reasons she gave.

28. I accept the Minister’s submissions. I have carefully considered the Tribunal’s Decision Record and the primary judge’s reasons. The grounds raised by the applicant do not identify any arguable case of appellable error on the part of the primary judge or jurisdictional error on the part of the Tribunal.

29. I will dismiss the application for leave. I will order that the applicant pay the first respondent’s costs as agreed or taxed.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.

Associate:

Dated:        25 August 2015