SZSRT v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 The applicant has filed an application seeking an extension of time for leave to appeal and leave to appeal from a judgment of the Federal Circuit Court of Australia, dismissing an application for review of a decision of the Refugee Review Tribunal ("the Tribunal"). 2 The applicant is a citizen of Malaysia who applied for a protection visa. A delegate of the first respondent refused the application. 3 The applicant claimed that he was persecuted in Malaysia for his political opinion, Chinese ethnicity and Christian religion. The applicant claimed that he was attacked, injured and robbed by several men because he was a supporter of the Democratic Action Party, which he says is composed mostly of ethnic Chinese. He says that he was attacked because he had a Democratic Action Party sign on his car. He went to the local police station to report the incident, but there he saw the men who had attacked him. They were police officers. After that, the applicant and his family were harassed by the police officers. 4 The Tribunal wrote to the applicant, advising that it was unable to make a favourable decision on the written material alone, and inviting him to attend a hearing. The applicant did not appear at the hearing. The Tribunal exercised its power under s 426A of the Migration Act 1958 (Cth) and dismissed the applicant's application without taking any further steps to enable him to appear. The Tribunal found that the information before it was not sufficient to enable it to be satisfied that the applicant had suffered persecution in the past or that there was a real chance that he would suffer persecution in the future for a Convention reason. 5 In the Federal Circuit Court of Australia, the applicant advanced the following grounds: 1. RRT have no idea the difficulties I would face once I returned home. They know neither my troublesome situation in Malaysia nor my miserable experience of being persecuted. They simply determined that I did not meet the Refugee criteria, and rejected my application. This is unfair. 2. RRT should offer me another chance of retrial, and then I can explain about all doubts arisen. 6 The Federal Circuit Court Judge dismissed the applicant's grounds, finding that none pointed to jurisdictional error. The applicant was offered the opportunity to file and serve an amended application, but he failed to do so. 7 His Honour considered that it was apparent from the application that the applicant was simply dissatisfied with the outcome of the review before the Tribunal. His Honour dismissed the application pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 because he was not satisfied that the applicant had raised an arguable case for the relief claimed. Rule 44.12(2) provides that such a dismissal is interlocutory. 8 In his application for an extension of time and leave to appeal the applicant relied on the following grounds: 1. RRT has bias against me as I was deprived of the benefits of doubts. 2. RRT has denied me procedural fairness by failing to provide adequate reasons for the finding of a fact. 3. RRT has made an illogically conclusion based on no evidence. 9 The applicant requires leave to appeal as the decision of the Federal Circuit Court was interlocutory: s 24(1A) of the Federal Court of Australia Act 1976 (Cth). The applicant also requires an extension of time for leave to appeal as he did not file his application for leave to appeal within the required time: r 35.13 of the Federal Court Rules 2011. 10 The Court has a discretion as to whether to grant leave to appeal. The relevant factors include: (a) whether, in all the circumstances, the judgment of the primary judge is attended by sufficient doubt to warrant it being reconsidered by the Full Court; and (b) whether substantial injustice would result if leave were refused, supposing the decision were wrong. See DÉcor Corporation v Dart Industries (1991) 33 FCR 397 at 398-399. 11 The two considerations are not unrelated. 12 As to the first proposed ground of appeal, no allegation of bias against the Tribunal was made in the proceeding in the Federal Circuit Court. There is no error on the part of the primary judge in failing to rule upon a ground never placed before the judge for consideration. In any event, the allegation of bias against the Tribunal is not made out by anything in its reasons, or anything else in the evidence before me. 13 As to the second proposed ground of appeal, it was not argued before the Federal Circuit Court that the Tribunal had provided inadequate reasons for its decision. Further, a failure by the Tribunal to provide "adequate" reasons is not a jurisdictional error: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 at [68]. In any event, the reasons were adequate because they complied with s 430(1) of the Migration Act. 14 As to the third ground, the Tribunal was required to be satisfied of the criteria set out in s 36(2) of the Migration Act. It was required to be satisfied of a number of matters which have to exist for Australia to owe protection obligations. It was not required to uncritically accept the applicant's allegations. There is no substance in the third ground. 15 The applicant alleged that the error of the primary judge was in refusing to remit the matter to the Tribunal for a further hearing. However, there was no error in the judge's refusal to do so. 16 I will make the following orders: (a) The name of the first respondent be amended to "Minister for Immigration and Border Protection". (b) The application be dismissed. (c) The applicant pay the costs of the first respondent as assessed or agreed. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.