FEDERAL COURT OF AUSTRALIA

SZTJT v Minister for Immigration and Border Protection [2014] FCA 870

THE COURT ORDERS THAT:

1.    Leave to appeal be refused.

2.    The 1st, 2nd and 3rd applicants pay the costs 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 application for leave to appeal from orders made by a Federal Circuit Court Judge (Judge Driver) dismissing an application pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001. The application before the Circuit Court Judge sought review of a decision of the Refugee Review Tribunal dated 23 August 2013. In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the appellants Protection (Class XA) visas. The order made by the Circuit Court Judge was interlocutory and, accordingly, leave to appeal is required under s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

2    The first and second appellants are husband and wife. The third and fourth appellants are their two children. The younger of the two children is a minor and I made an order appointing the first appellant, that is to say the child’s father, as his litigation guardian. The first appellant sought protection on the ground of his political beliefs. He claimed to fear harm in India on the ground that he is a Maoist. The second appellant, who is the first appellant’s wife, claimed protection upon the ground that she suffers from kidney disease which requires haemodialysis. The children sought protection as members of the family group of their parents.

3    The Tribunal did not accept that the first appellant was a witness of truth in relation to his claims to be a Maoist, or that he had a fear in that regard if he were to return to India. The Tribunal stated its finding at [18] of its reasons and gave comprehensive reasons at [19]-[36] as to why it did not accept the first appellant as a witness of truth. The second appellant’s claim did not have any Convention nexus but the Tribunal treated it as a claim for complementary protection under s 36(2)(aa) of the Migration Act 1958 (Cth) (the Act).

4    The Tribunal, at [44], accepted that the wife has kidney disease and that she requires dialysis three times a week and indeed that she will require a transplant at some stage. The Tribunal found that, according to its research, dialysis is available in India and that the annual cost is the equivalent of $3000. It referred at footnotes 8, 9 and 10 of its decision to the research which it had carried out in order to determine the cost of dialysis. Importantly, the Tribunal found at [44] that it was not satisfied that the appellants were unable to afford dialysis. The Tribunal said it was concerned that the appellants were evasive and untruthful about their financial situation.

5    The Tribunal said at [46] that it understood that the appellants were concerned about the wife’s medical condition but it repeated its finding that it was not prepared to accept, on the basis of the lack of credibility about their financial position, that the appellants could not pay for and access dialysis treatment for the wife in India. The Tribunal went on at [51]-[53] to address the definition of “significant harm” in s 36(2A) of the Act. It found, in particular, at [53] that the harm of which the appellants complained was not significant harm within the definition in the Act and, accordingly, the Tribunal was not satisfied that the appellants met the criterion for complementary protection under s 36(2)(aa).

6    In their application for judicial review of the Tribunal’s decision in the Federal Circuit Court, the appellants relied on three grounds of review. The grounds were vague and unclear but the Circuit Court Judge considered independently the Tribunal’s treatment of all of the appellants’ claims. His Honour observed in relation to the wife’s claim that the Tribunal accepted, on the basis of the available country information, that the appropriate treatment would be available in India. His Honour pointed out at [7] of his reasons for judgment that the Tribunal gave substantial consideration to the wife’s claims to complementary protection. As I have said, this is borne out by the research referred to in the footnotes of the Tribunal’s decision to which I have referred.

7    The Circuit Court Judge observed at [8] that the proceeding in the Circuit Court began with a show cause application and his Honour dealt with the application at [12] and following paragraphs. He observed that he gave the appellants the opportunity to file and serve an amended application and additional evidence but that they did not take up the opportunity to do so. His Honour gave the husband an opportunity to expand upon the complementary protection ground and he pointed out at [13], that the appellant said that he wanted to submit medical documents concerning his wife’s illness. His Honour referred at [14] to the research which was footnoted in the Tribunal’s decision. Ultimately, his Honour said at [17] that he was not persuaded that there was any arguable case of jurisdictional error by the Tribunal and he therefore dismissed the application pursuant to the rule to which I have referred.

8    In the application for leave to appeal, the appellant raises five grounds of appeal. Ms Given for the Minister submits that the proposed grounds of appeal do not engage with the decision of the Tribunal and were not raised before the Circuit Court Judge. Indeed, it appears that the grounds are pro-forma grounds which have been considered in almost identical terms in a number of other cases. In SZLHM v Minister for Immigration [2008] FCA 754, Flick J pointed out the difficulty in relying on such grounds. The essence of his Honour’s observations may be found at [35]-[36] of his reasons.

9    Ms Given submits that in those circumstances the appellant is under a higher barrier to success in such an application. However, it seems to me that it is unnecessary to deal with the application on that basis. Rather, it is sufficient to address it in the light of the five grounds which the appellants wish to raise. Before doing so, I should point out that the first appellant appeared in person this morning. There was no appearance for any of the other appellants although, as I have said, the first appellant represented as litigation guardian his minor son.

10    The submissions which he put to me were first, that he told the Tribunal everything about his case and that he did not think the decision was justified. He emphasised the medical condition of his wife and submitted that there was no reason to disbelieve her. However, neither of these submissions raise any arguable ground of jurisdictional error; they do nothing more than take issue with the factual findings made by the Tribunal. It is probably sufficient to dispose of the application to say that each of the five proposed grounds, in essence, takes issue with the factual findings and seeks to re-agitate the merits of the appellants’ claims before the Tribunal. That, of course, is not the task of the Court.

11    The first ground quite clearly takes issue with the factual finding made by the Tribunal, rejecting the first appellant as a witness of truth in relation to his assertions about his political belief in Maoism. This does not raise any possible ground of jurisdictional error. The second ground asserts that the Tribunal failed to verify the appellants’ claims and evidence. It is not the function of the Tribunal to do so. The approach which the appellants put forward in that ground ignore the essential principle that it is for the appellants to make their own case before the Tribunal.

12    Ms Given refers to a number of authorities in support of that proposition. They are sufficiently summarised in the observations of the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 at [40].

13    The third ground raises a claim of bias. It is well established that allegations of bias must be distinctly made and clearly proved. See Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 at [69]. In the present case, there is nothing at all to justify the allegation of bias.

14    The fourth ground is that the Tribunal incorrectly found that the appellants would have no problem if they returned to India as their country of residence. Again, this does no more than take issue with the factual findings of the Tribunal. Ground five, again, contains an assertion of bias which, as I have said, was not raised below and simply does not arise in the present matter.

Associate:

Dated:    21 August 2014