SZRUO v Minister for Immigration, Multicultural Affairs and Citizenship

Federal Court of Australia|2013-08-07|Before: Cowdroy J

REASONS FOR JUDGMENT 1 This is an appeal from a decision of the Federal Magistrates Court of Australia (now the Federal Circuit Court of Australia) delivered on 3 April 2013 dismissing the appellant's application for judicial review of a decision of the second respondent ('the Tribunal'). 2 The appellant is an infant who was born in Australia on 1 April 2011. Given the appellant's age, the appellant's father, a citizen of India, appeared before the Tribunal and the Federal Magistrates Court on the appellant's behalf. At the time of hearing before this Court, the appellant was two years and four months of age. Accordingly, the Court made an order at the hearing pursuant to r 9.63 of the Federal Court Rules 2011 (Cth) for the appellant's father to be appointed as his litigation representative. Although r 9.61 requires such an order to be made when proceedings are instituted, the first respondent ('the Minister') consented to the making of the order. Further, the Court dispensed with the requirement of service of an application and the filing of an affidavit as required by rr 9.63(2) and 9.63(3) respectively so that the appeal could continue. 3 On 4 October 2011 the appellant's father applied to the Department of Immigration for a protection visa on behalf of the appellant. On 16 January 2012 the delegate of the Minister refused the application. An application for review was then filed with the Tribunal. On 22 August 2012, the Tribunal affirmed the decision of the delegate not to grant the appellant a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth) ('the Act').

THE TRIBUNAL'S DECISION 11 The Tribunal did not accept that the appellant would continue in the Christian faith if he returned to India. Further, the Tribunal found that the attendance at Church by the appellant and his parents was for the purposes of strengthening the appellant's claim to be a refugee, and it rejected the notion that the appellant's parents had adopted Christianity. 12 The Tribunal found that the lack of credibility in relation to the claims of Christianity cast doubt over the whole of the appellant's claims. Further, the Tribunal did not accept any of the father's claims set out at [5] above. 13 Ultimately, the Tribunal was not satisfied that the appellant would face persecution in India, and therefore did not meet the criteria contained in s 36(2)(a) of the Act. The Tribunal was also not satisfied that the appellant was a person to whom Australia owed protection obligations under s 36(2)(aa) of the Act. The Minister's decision to refuse to grant a protection visa to the appellant was accordingly affirmed.

PROCEEDING BEFORE THE FEDERAL MAGISTRATES COURT 14 By application filed on 21 September 2012 the appellant challenged the Tribunal's decision before the Federal Magistrate. The appellant advanced the following grounds: i. 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. ii. The Tribunal's decision was unjust and was made without taking into account the full gravity of appellant circumstances and the consequence of the claim. iii. The appellants satisfy the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error. 15 The appellant's father elected not to provide written submissions in support of the application, and not to present oral submissions at the hearing before the Federal Magistrates Court. 16 His Honour held that the Tribunal did have regard to the appellant's claims and detailed them in its decision. His Honour also held that it could not be said that the Tribunal failed to take into account any element of the appellant's claim, and was satisfied that no jurisdictional error was apparent. The application was dismissed.

THE APPEAL PROCEEDING 17 The appellant filed his notice of appeal to this Court on 19 April 2013. The appellant relied upon the following grounds: i. The [Federal Magistrate] failed to [take] into consideration that the Tribunal decision was unjust and was made without taking into account the full gravity of my circumstances and the consequences of the claim. ii. The Federal Magistrate failed to consider that the Tribunal had no jurisdiction to make the said decision because its 'reasonable satisfaction' was not arrived in accordance with the requirements of the Migration Act. 18 The appellant's father appeared at the hearing assisted by an interpreter. No written submissions were filed on behalf of the appellant, and his father declined the Court's invitation to make any oral submissions. 19 As to the first ground of appeal, the reasons of the Federal Magistrate reflect that his Honour did consider the extent to which the Tribunal took into account the 'circumstances and consequences of the claim'. Further, no particulars were provided before this Court or the Federal Magistrates Court in respect of the assertion that the Tribunal's decision was 'unjust' or was made 'without taking into account the full gravity of my circumstances and the consequences of the claim'. The Tribunal's decision records that all aspects of the claims before it and those that were rejected as summarised in the reasons above. The findings of the Tribunal are findings of fact which the Court is not permitted to review: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 and 291-292. 20 No particulars or submissions were provided by the appellant's father in respect of the second ground of appeal. The Federal Magistrate outlined the Minister's submissions in relation to whether the Tribunal had jurisdiction to make its decision, and stated that it 'comprehensively and accurately' addressed the appellant's father's argument. In this way, there was found to be nothing in the Tribunal's decision which made it illogical or unreasonable. As was noted by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131]: [T]he test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion. 21 No error arises from the Federal Magistrate's reasoning. 22 It follows that the appeal is dismissed. The Court orders that the appellant's father, as the litigation representative of the appellant, pay the Minister's costs of the appeal. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Migration Act 1958(Cth)ss 36, 65

Federal Court Rules 2011(Cth)rr 9.61, 9.63

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