SZSLS v Minister for Immigration and Border Protection

Federal Court of Australia|2013-11-12|Before: Collier J

Counsel for the Applicants: The First Applicant appeared in person and on behalf of the Second Applicant

Counsel for the Second Respondent: The Second Respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1232 of 2013

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

JUDGE: COLLIER J DATE OF ORDER: 12 NOVEMBER 2013 WHERE MADE: SYDNEY

The name of the first respondent be amended to Minister for Immigration and Border Protection. 2. The application be dismissed with costs. 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 1232 of 2013

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

JUDGE: COLLIER J DATE: 12 NOVEMBER 2013 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 On 28 June 2013 the applicant filed an application for leave to appeal from a decision of a judge of the Federal Circuit Court of Australia delivered on 14 June 2013 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") dated 4 December 2012. The learned judge below had ordered that the application be dismissed pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) ("Federal Circuit Court Rules"), which states as follows: Show cause hearing (1) At a hearing of an application for an order to show cause, the Court may: (a) if it is not satisfied that the application has raised an arguable case for the relief claimed-dismiss the application; or

BACKGROUND AND CLAIMS 2 The applicants are husband and wife. They are citizens of India who arrived in Australia on 16 April 2009 on student visas. On 23 December 2011 they applied to the Department for protection visas. On 30 May 2012 the delegate of the Minister refused their application. 3 The applicant husband claimed that he feared persecution because he converted from Hinduism to Sikhism in order to marry the applicant wife. The applicant wife stated that her family had initially opposed their marriage because the husband was a Hindu, but they changed their mind after he converted to become a Sikh. The applicant wife claimed that Hindus in the community attacked a Sikh temple and are looking to kill them to set an example for others. Further, after threats were made against them they decided to leave India immediately.

THE TRIBUNAL'S DECISION 4 The Tribunal did not find the applicants were credible witnesses. The Tribunal found the applicants' account of the applicant husband's conversion to Sikhism very different from what country information suggested happened at Sikh baptism ceremonies. It also noted that the applicant husband and his parents all had Sikh names and when the applicant husband was asked about these Sikh names his response was "confusing". The Tribunal also noted concerns about the speed in which the applicants' claimed to have married and it found this inconsistent with their claim of family opposition to their marriage. 5 The Tribunal noted that despite the alleged persecution, the applicants had resided in the family home for eight months after their wedding without issue. The Tribunal also considered that despite giving them the opportunity to provide documentary evidence to support their claim they failed to do so. 6 The Tribunal did not accept that the applicant's husband was ever a Hindu and consequently it was not satisfied that the applicants would suffer serious harm in India for the reasons they claim. The Tribunal dismissed their application.

THE PROCEEDINGS IN THE FEDERAL CIRCUIT COURT OF AUSTRALIA 7 In the Federal Circuit Court of Australia the applicants relied on the following grounds: 1. The Tribunal did not give to the applicant before the hearing the independent information that it had about Sikh Baptism. The Tribunal used this information (RRT decision record page 13). This was against section 424A of the Migration Act 1958. 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 applicant's circumstances and consequences of claims. The Tribunal did not consider the applicant who had been under immense and intimidating pressure from Hindu extremist [sic]. 4. The Tribunal denied the applicant procedural fairness by reaching adverse conclusions that certain aspects of his claims were implausible, being conclusions that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters. 8 His Honour rejected ground one on the basis that the country information relied upon was not required to be disclosed under s 424A of the Migration Act 1958 (Cth) ("the Act"). 9 His Honour noted that ground two lacked substance and because it was not particularised it was also dismissed. 10 Ground three was dismissed because it was found to be seeking impermissible merits review. 11 Ground four was dismissed after his Honour found it clear from the Tribunal's decision record that the Tribunal accorded procedural fairness to the applicants and met its obligations under s 245 of the Act. 12 His Honour found that there was no arguable case for jurisdictional error and dismissed the application pursuant to r 44.12 of the Federal Circuit Court Rules with costs.

PROCEEDINGS IN THIS COURT 13 The applicants seek leave to appeal from the decision of his Honour pursuant to r 35.12 of the Federal Court Rules 2011 (Cth). In the draft notice of appeal attached to the application the applicants plead the following grounds: 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 FM dismissed the application without considering the legal and factual errors contained in the decision of RRT. 14 The applicants were self-represented and the applicant wife appeared by telephone. She did not file any written submissions or make any oral submissions. 15 The Minister submitted (in summary): The judgment of his Honour was interlocutory and leave is required. Leave to appeal should be refused because there is no doubt as to the correctness of his Honour's judgment, and no substantial injustice would be suffered by the applicants if leave were refused. The proposed grounds of appeal lack meaningful content.

CONSIDERATION 16 I am satisfied that the applicants require leave to appeal from the decision of his Honour, on the basis that it was an interlocutory decision pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules (cf observations of Jessup J in SZKCV v Minister for Immigration & Citizenship [2007] FCA 1201). 17 In my view leave should be refused for the following reasons. 18 First, in my view the draft grounds of appeal have no merit. They are clearly template grounds, without any particular relevance to the circumstances of this case. I note that they are identical to the grounds of appeal in, for example, SZOJV v Minister for Immigration and Citizenship [2012] FCA 459, SZQKP v Minister for Immigration and Citizenship [2012] FCA 284, MZYMQ v Minister for Immigration and Citizenship [2012] FCA 170, SZQGR v Minister for Immigration and Citizenship [2012] FCA 135, MZYMG v Minister for Immigration and Citizenship [2012] FCA 89, SZQBV v Minister for Immigration and Citizenship [2011] FCA 1391, SZQCQ v Minister for Immigration and Citizenship [2011] FCA 1385, SZOIG v Minister for Immigration and Citizenship [2012] FCA 1250, SZQQY v Minister for Immigration and Citizenship [2012] FCA 1231, SZRDY v Minister for Immigration and Citizenship [2012] FCA 1230, SZRDB v Minister for Immigration and Citizenship [2012] FCA 893, SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388, MZYYW v Minister for Immigration and Citizenship [2013] FCA 476, MZYXV v Minister for Immigration and Citizenship [2013] FCA 465, MZYYP v Minister for Immigration and Citizenship [2013] FCA 449, SZRRF v Minister for Immigration and Citizenship [2013] FCA 206, CZBE v Minister for Immigration and Citizenship [2013] FCA 203, SZRKF v Minister for Immigration and Citizenship [2013] FCA 181, AZACD v Minister for Immigration and Citizenship [2013] FCA 174, MZYVA v Minister for Immigration and Citizenship [2013] FCA 50, SZRES v Minister for Immigration and Citizenship [2012] FCA 1308, BZACE v Minister for Immigration and Citizenship [2012] FCA 1303 and SZQET v Minister for Immigration and Citizenship [2011] FCA 1435. 19 Sadly, the template grounds of appeal are clearly dated by the terminology used, as they have not been updated to reflect the fact the decision before me was not that of a Federal Magistrate, but that of a Federal Circuit Court Judge. 20 In any event, in this case to demonstrate error of the Tribunal for manifest unreasonableness the applicants would need to substantiate that no reasonable decision maker could have arrived at the Tribunal's decision to refuse to grant her protection on the same evidence as was before the Tribunal: see for example, Minister of Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]-[131] per Crennan and Bell JJ. No attempt has been made to support such a contention, and the material before me does not support it. 21 Further, the applicants have not attempted to particularise the purported legal and factual areas the Federal Magistrate failed to consider. His Honour considered, in detail, each ground of judicial review raised by the applicants in the proceedings below. In particular, his Honour considered the question whether s 424A applied, however was satisfied that the section was not enlivened. Further, his Honour concluded that the Tribunal complied with its obligations under s 425 of the Act. I can identify no legal error in his Honour's findings that none of the grounds raised by the Tribunal gave rise to jurisdictional error. 22 The proper order is to dismiss the application with costs. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Migration Act 1958(Cth)ss 245, 424A, 425

Federal Circuit Court Rules 2001(Cth)rr 44.12, 44.12(1)(a)

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