FEDERAL COURT OF AUSTRALIA

SZUUU v Minister for Immigration and Border Protection [2015] FCA 1331

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Appellants pay the First Respondent's costs, to be taxed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

REVISED FROM THE TRANSCRIPT

1    The first appellant is a 33 year old citizen of the Republic of India. He seeks protection in Australia pursuant to refugee claims, but so far has been unsuccessful. Although I will refer to the first appellant as being the appellant, I note that he also speaks on behalf of the second appellant, his wife, who does not bring separate claims but joins with him in his claim as a member of the family.

2    The appeal this morning is from a decision of the Federal Circuit Court of Australia delivered on 29 July this year (SZUUU & Anor v Minister for Immigration & Anor [2015] FCCA 2134). I will discuss that decision shortly, after considering the background and the history. The grounds of appeal, in substance, are that:

(1)    the Federal Circuit Court failed to consider that the Administrative Appeals Tribunal had denied the applicant procedural fairness reaching adverse conclusions that the applicant’s claim were implausible, being a conclusion not obviously open on the known material.

As part of this ground of appeal, the appellant asserts that the Tribunal failed to comply with the mandatory requirement under s 424A of the Migration Act 1958 (Cth); and

(2)    the Federal Circuit Court dismissed the case without considering the legal and factual evidence contained in the decision of the Tribunal, in which the Tribunal had failed to investigate the appellant’s claims, specifically the ground of persecution in India.

3    In support of those grounds of appeal, in argument before me this morning, the appellant made clear to me that he feared for his life if he returned to India and asked for the appeal to be allowed. He also indicated that he understood this Court essentially dealt with asserted errors of law in the Federal Circuit Court, rather than findings of fact.

4    I turn then to the background of the claims advanced by the appellant. He and his wife arrived in Australia on a tourist visa in February 2013. They sought protection in May 2013. In support of his claim for protection, in his accompanying statement he said that three or four years ago, at around the same time, he met a man and a woman who were in a relationship. In July 2012 they told him they wished to get married. They explained that their families would not allow them to get married, largely because of religious differences between the families. Nevertheless, he assisted them marrying a short time later. Following the ceremony they stayed with him for one or two days and he gave them cash to assist them to settle elsewhere. The appellant also indicated in this statement that after this marriage had taken place, one of the parents phoned him and threatened to harm him unless he told that parent of the couple’s whereabouts. Following this phone call there were visits to the appellant’s home when he was not there. Property was destroyed and threats were made to harm him, his mother, his wife and his child. The appellant claims that was on the basis of these threats and fears that a protection visa was sought.

5    The delegate was not persuaded as to the truth of the appellant’s account, and in November 2013 rejected the application of the appellant and his wife for a protection visa. The appellant then applied to the Tribunal for a review of that decision in December of that year and appeared before the Tribunal about seven months later in July 2014. The Tribunal, however, also affirmed the decision of the delegate finding that the account given by the appellant was not credible and the events on which the claims were based were false.

6    In a detailed decision, the Tribunal set out what it found to be several inconsistencies in the appellant’s evidence. The Tribunal concluded that, in light of those inconsistencies it was unable to accept the credibility and account of the appellant. Therefore, the Tribunal rejected the claims advanced. Following this, the appellant then, as was his right, appealed to the Federal Circuit Court, relying on four grounds of appeal which shortly stated were: first, a denial of procedural fairness. The primary judge rejected this ground of appeal (at [10]-[11]) of his reasons, where his Honour said:

10.    The application for review contains four grounds. The first ground is:

◦    The Tribunal failed to accord “procedural fairness” to the applicants because of the little weight to give to the claim of [sic] applicants because of the applicant’s inconsistencies in the application for the protection visa.

At the hearing before me the applicant, who was not legally represented, made no submission in relation to this ground.

11.    The first ground discloses no jurisdictional error. That the Tribunal gave little weight to the applicant’s evidence because of inconsistencies in the evidence the applicant gave does not constitute a failure to accord procedural fairness. It was for the Tribunal to assess the credibility of the applicant and it was reasonably open to the Tribunal to conclude on the basis of the inconsistencies it identified that the applicant was not a witness of truth.

7    By ground 2 before the Federal Circuit Court it was contended that the Tribunal had failed to consider a claim. That was assessed and rejected by the primary judge (at [12]-[13]), where his Honour said:

12.    The second ground stated in the application is:

◦    The Tribunal failed to consider an integer of the applicant’s claims in failing to consider whether or not the applicants was at risk of significant harm from [A’s and B’s] families and not able to access effective protection.

The applicant made no submission in relation to this ground.

13.    The ground is not arguable. The Tribunal considered the applicant’s claims but rejected them, because it did not accept the applicant was a witness of truth. It was reasonably open to the Tribunal to so conclude for the reasons it gave.

8    The third ground, which was somewhat unclear, was that the Tribunal had failed to comply with provisions of the Act, which were unspecified. That was considered by the primary judge but rejected. The Court said (at [14]-[15]):

14.    The third ground stated in the application is:

◦    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 1958.

15.    The applicant made no submission in relation to this ground. It too is not arguable. The ground discloses no jurisdictional error. It does not identify the “reasonable satisfaction” it is alleged the Tribunal held, or the provisions of the Migration Act 1958 (Cth) in accordance with which it is alleged the Tribunal did not come to hold this reasonable satisfaction.

9    The fourth ground, which the primary judge also rejected, was that the Tribunal had erred by failing to make its own investigations into his claims and his Honour considered that ground but rejected it (at [16]-[17]) in the judgment. In these paragraphs his Honour said:

16.    The fourth ground is:

◦    The Tribunal has failed to investigate applicant [sic] claims, especially the grounds of persecution in India. Therefore the Tribunal decision, dated 5 July 2014, was effected by actual bias constituting judicial error.

17.    The applicant made no submission in relation to this ground. The ground assumes the Tribunal was under an obligation to undertake its own investigations in relation to the applicant’s claims. The Tribunal was under no such obligation. At most, the Tribunal has a duty to enquire about a critical fact, the existence of which may be easily ascertained (See Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [25] - [29]). The fourth ground in the application does not identify a critical alleged fact before the Tribunal, whose existence could have been easily ascertained but about which the Tribunal failed to make inquiry. Even if the Tribunal was under an obligation to undertake an inquiry but it failed to do so, that could not ground the inference that the Tribunal made its decision as a result of actual bias or in circumstances that might give rise to a reasonable apprehension of bias. In any event, there is no material that suggests the Tribunal made its decision as a result of actual bias or in a manner that might reasonably give rise to an apprehension of bias. The fourth ground in the application therefore also fails.

10    The appellants now appeal to this Court and I have already referred to the two grounds of appeal which the appellant raises. I will now turn to those two grounds.

11    The first ground is essentially a claim that there was a lack of procedural fairness in the approach taken by the Tribunal and a complaint that the primary judge failed to recognise and deal with this procedural unfairness. While this ground resembles the first ground advanced in the decision of the primary judge, it also now sets out two new particulars, the first being that the findings made and inferences drawn by the Tribunal were not obviously open to it. And the second is the contention that there was a failure by the Tribunal to comply with s 424A of the Act and that the primary judge was at fault in failing to so conclude.

12    These new particulars were not advanced before the primary judge. Technically, leave would be required to raise those new grounds. The Minister opposes leave being granted on the basis that neither of those grounds could succeed, and, as they have no prospects of success, should not be permitted as grounds of appeal. Neither today nor in other argument on the papers, have the appellants pointed to particular findings made or inferences drawn by the Tribunal which they contend were not obviously open to it as asserted in the ground of appeal. In this case, in light of the careful and detailed reasons of the Tribunal I am unable to identify, for my own part, any such inferences or findings. Secondly, and in relation to the complaint that the Tribunal failed to comply with s 424A of the Act, no such information has been identified. Indeed, there was no information before the Tribunal engaging any obligation under that section, particularly subsection (1). It follows that ground 1 cannot succeed.

13    The second ground of appeal is that the primary judge dismissed the case without considering the unspecified legal and factual errors contained in the decision of the Tribunal and that the Tribunal failed to investigate the appellant’s claims of persecution in India. Again, there has been no specific submission in support of this ground and no particular(s) identified as to the alleged failure to investigate. But, as I have indicated (above at [9]), this was a ground considered by the primary judge and in my opinion correctly rejected.

14    It follows that the notice of appeal has not identified any legal error in the reasoning of the Federal Circuit Court and the appeal must be dismissed with costs. Accordingly I order:

1.    The appeal be dismissed.

2.    The Appellants pay the First Respondent's costs, to be taxed if not agreed.

A/Associate:

Dated:    26 November 2015