FEDERAL COURT OF AUSTRALIA

SZQZH v Minister for Immigration and Citizenship [2012] FCA 1251

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of and incidental to the appeal assessed at $1,983.00.

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

REASONS FOR JUDGMENT

1    This is an appeal from a decision of a Federal Magistrate delivered on 6 July 2012 (SZQZH v Minister for Immigration [2012] FMCA 627) by which the Federal Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal).

2    The appellant is an Indian citizen born on 12 July 1986 who arrived in Australia on 5 September 2009. On 2 March 2011, the appellant applied for a protection visa. On 2 May 2011, a delegate of the first respondent (the Minister) made a decision to refuse the appellant’s application for a protection visa. The Tribunal affirmed the decision of the delegate on 28 November 2011.

Background

3    The appellant came to Australia as the dependant of his wife, who came here on a student visa. According to the appellant, some time after the appellant and his wife arrived in Australia, the appellant’s relationship with his wife deteriorated. He said that they separated on 6 June 2010, which was only about 14 months after their wedding. The appellant claimed that his marriage had been arranged by his wife’s and his respective families, even though, according to the appellant’s claims, the families are from opposing sides of politics in India.

4    The appellant said that his father was a member of the Akali Dal Party. He said that his father had been subjected to threats and harassment by members of the Congress Party in India, which caused his father to leave India and move to Dubai. The appellant claimed that, following his father’s departure from India, the threats and harassment made by the Congress Party against his family were directed against him in order to pressure his father to return to India. He said that he had received threatening phone calls in the two years prior to his marriage.

5    The appellant claimed that he had also fled to Dubai and worked as a carpenter there between January 2008 and March 2009. The appellant claimed that he had returned to India in 2009 in order to get married. The appellant and his wife then moved to Melbourne where, according to the claims made by the appellant, their relationship deteriorated to the extent that he left their home. He initially stayed with friends and then moved to Griffith in New South Wales.

6    The appellant claimed that, after his marriage broke down, his in-laws went to his home in India, threatened family members and told his mother that they would kill him if he returned to India. The appellant claimed that members of the Congress Party had attempted to procure the issue of a warrant against him for human trafficking and that he would be arrested at the airport should he return to India. This claim was later withdrawn as having been put forward in error. The appellant claimed that he had received a number of threatening phone calls. The appellant claimed that his father had warned him to stay away from the appellant’s wife’s family and friends in Australia.

7    The appellant claimed that his wife’s family had commenced legal proceedings in India against his family claiming that his family owed them money. He said that his family had been forced to sign a document under torture admitting that his family owes his wife’s family 400,000 rupees.

8    The appellant claimed that he could not relocate within India, even with his qualifications and experience as a carpenter, since these qualifications would not matter much if his enemies learned of his whereabouts. He claimed that his father warned him not to return to India because if he did he would be killed.

The Tribunal’s decision

9    The claims which I have extracted above were pressed before the Tribunal.

10    The Tribunal did not find credible the appellant’s explanation as to why his in-laws were apparently motivated to harm him. Rather, the Tribunal found that the dispute between the families was private in nature. The Tribunal did not accept that the dispute was motivated by the appellant’s imputed political opinion, membership of a particular social group or for any other Convention reason. Whilst the Tribunal did not find it implausible that the appellant may have been subjected to harassment after his father left for Dubai, the Tribunal was of the view that the prospect of the appellant facing serious harm for his imputed political opinion or any other Convention reason was remote. The Tribunal was not satisfied that the appellant’s fear was well-founded.

11    For these reasons, the Tribunal was not satisfied that the appellant was a refugee within the meaning of the Convention.

The Proceeding in the Federal Magistrates Court

12    On 20 December 2011, the appellant filed an Application for judicial review in the Federal Magistrates Court. He relied upon the following grounds in support of that application:

1.    The Tribunal failed to consider properly the test whether the applicant would suffer serious harm as per sec.91R(2)(a) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do), if he asked to relocate in India. The Tribunal failure to satisfy this statutory obligation was a serious jurisdictional error caused by the Tribunal.

2.    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.

3.    The Tribunal has failed to investigate applicant claim, specially the ground of persecution in India. Therefore the Tribunal decision 28 November 2011 was effected by actual bias constituting judicial error.

13    The Federal Magistrate found no merit in ground 1. The Federal Magistrate concluded that there was no basis for a finding by the Tribunal that the appellant would suffer serious harm were he to return to India.

14    As far as the second ground relied upon by the appellant was concerned, the Federal Magistrate found that the conclusion ultimately reached by the Tribunal was a conclusion which was open to it and was not infected by any jurisdictional error. The Federal Magistrate held that he was satisfied that the conclusion reached by the Tribunal was available on the evidence before it.

15    Ground 3, which raised actual bias, was simply not made out on the evidence.

16    For those reasons, the Federal Magistrate dismissed the appellant’s claim.

The Appeal in this Court

17    On 25 July 2012, the appellant filed a Notice of Appeal in this Court. The only grounds relied upon in that Notice of Appeal are:

1.    The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicants claim 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 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    Ground 1 replicates verbatim ground 1 in Notices of Appeal and a draft Notice of Appeal in matters with which I have dealt in the last two days (SZRDY v Minister for Immigration and Citizenship [2012] FCA 1230; SZQQY v Minister for Immigration and Citizenship [2012] FCA 1231; and SZOIG v Minister for Immigration and Citizenship [2012] FCA 1250). For the reasons which I gave in those matters ground 1 is hopeless. I reject ground 1.

19    As far as ground 2 is concerned, this repeats ground 2 relied upon before the Federal Magistrate. In the course of dealing with ground 2, the Federal Magistrate said at [8]:

8.    The second ground was:

“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.”

This interesting suggestion has not been particularised but in any event, it is probably a misconception of s.65 of the Act:

“Decision to grant or refuse to grant visa

(1)    After considering a valid application for a visa, the Minister:

(a)    if satisfied that:

(i)    the health criteria for it (if any) have been satisfied; and

(ii)    the other criteria for it prescribed by this Act or the regulations have been satisfied; and

(iii)    the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

(iv)    any amount of visa application charge payable in relation to the application has been paid;

is to grant the visa; or

(b)    if not so satisfied, is to refuse to grant the visa.

Note:    See also section 195A, under which the Minister has a non-compellable power to grant a visa to a person in detention under section 189 (whether or not the person has applied for the visa). Subdivision AA, this Subdivision, Subdivision AF and the regulations do not apply to the Minister's power under that section.

(2)    To avoid doubt, an application put aside under section 94 is not taken for the purposes of subsection (1) to have been considered until it has been removed from the pool under subsection 95(3).”

There is no reference in that sub-section to reasonable satisfaction and the obligation is upon the visa applicant to satisfy the Minister in a positive way that he meets the visa requirements. The Minister is not required to be satisfied that the applicant does not meet the visa requirements. The obligation to establish satisfaction is all upon the applicant: Abebe v The Commonwealth (1999) 197 CLR 510. The Tribunal was entitled to come to the conclusion the applicant had not satisfied it that he met those requirements and provided it based its views on available evidence, which I am satisfied it did, there is no jurisdictional error in the conclusion.

20    The succinct statement of the relevant principle given by the Federal Magistrate at [8] of his Reasons is correct. There is no error, appealable or otherwise, in the way in which the Federal Magistrate dealt with ground 2 before him. For that reason, ground 2 in this Court also fails.

21    For all of the above reasons, I propose to dismiss the appeal with costs. The orders of the Court will be:

(1)    That the appeal be dismissed; and

(2)    That the appellant pay the first respondent’s costs of and incidental to the appeal.

22    After I delivered Reasons for Judgment in this matter, the Minister applied for leave to file in Court the affidavit of Oliver Richard Jones sworn today (8 November 2012) in support of an application that I fix at $1,983.00 the amount of costs payable under the costs order which I have already announced. I have inquired of the appellant as to whether he wished to make any submission about that application. No relevant submission was made.

23    In those circumstances, and having regard to the fact that the amount sought is reasonable, I propose to fix the amount of costs under the order which I previously made at $1,983.00.

Associate:

Dated:    12 November 2012