FEDERAL COURT OF AUSTRALIA

SZRUO v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 777

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The litigation representative of the Appellant pay the costs of the First Respondent of the appeal.

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 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’).

TRIBUNAL PROCEEDINGS

4    The appellant’s visa application was founded on two broad claims for feared persecution. The first claim was based upon an unsuccessful application for a protection visa lodged by and on behalf of the father. The second claim was that the appellant’s father wanted the appellant to become a Catholic.

5    In respect of the father’s previous unsuccessful visa application, the father claimed on behalf of the appellant before the Tribunal that the appellant’s family could not return to India because their lives would be in danger. The father said that this was so because:

i.    there was a man named Iqbal who wanted to marry his wife and who had requested that he divorce her;

ii.    Iqbal had harassed his manager and was responsible for people: ransacking his home; following him to Gujurat (a town in India); hijacking a truck carrying garments for his business; and ‘burned down’ the stolen goods from the truck;

iii.    he was a supporter of the BJP (an Indian political party) and that he was not able to obtain the protection of the government as it was run by the Congress Party.

6    The Tribunal raised with the appellant’s father that some of these claims were inconsistent with the information the father had provided in the appellant’s visa application, at which point the father attempted to explain those inconsistencies. The father also stated that his parents and his wife’s family were living in India without any problems.

7    In relation to the appellant’s alleged Catholicism, the father claimed that:

i.    at the family’s previous home in Australia, an unknown person would visit once every two months and give his wife a booklet relating to Christianity. Such booklets were still delivered to them after they moved to a different location when their son was born. They had received 14 booklets at the old address and 10-12 at the new address. These booklets were in Gujurati and the father would read them after work. He did not know the title of the book however, nor could he recall the stories;

ii.    an older neighbour at their present residence gave him books every two to three months about Christianity;

iii.    he and the appellant attended Church with a neighbour a total of four to five times since June 2011;

iv.    he and his wife were Hindus, but he would encourage the appellant to follow Christianity.

8    In response to questions from the Tribunal, the father stated that Jesus Christ was the main character in Christianity and that Jesus is God. He also provided information in relation to the crucifixion of Jesus. He could not identify however any other important characters in Christianity, and admitted that he did not know anything about Christians in India.

9    When invited by the Tribunal to provide further information, the appellant’s father stated that he had nothing to add. He also declined an opportunity for more time to make submissions.

10    The Tribunal wrote to the appellant’s father on 9 July 2012 inviting his comment on various matters. The Tribunal gave the father until 1 August 2012 to provide a response or to make a request for an extension of time. On 2 August 2012, the appellant wrote to the Tribunal asking for more time. On the basis that it was outside the period set by the Tribunal, the request was refused. The Tribunal however informed the appellant’s father that it was not expected to make a decision before 20 August 2012 and that it would consider any submissions before that date. No submissions were received at the time of the decision, which was, as noted above, 22 August 2012.

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.

Associate:

Dated:    7 August 2013