FEDERAL COURT OF AUSTRALIA

SZTGX v Minister for Immigration and Border Protection [2014] FCA 1201

THE COURT ORDERS THAT:

1.    The appeal be dismissed under r 36.75 of the Federal Court Rules 2011 (Cth) with costs.

THE COURT FURTHER ORDERS THAT:

2.    If the appellants do not apply under r 36.75(2) within 14 days, the appeal stands dismissed under r 36.74.

3.    The requirements of r 36.74(2) are waived.

4.    Any application under r 36.75(2) will be listed for hearing at not before 11.00 am on 12 December 2014.

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

REASONS FOR JUDGMENT

1    The appellants arrived in Australia on 3 April 2012. They applied for protection visas on 18 May 2012.

2    In his application for a protection visa, on the ground that he has a well founded fear of persecution in his own country of India, the first appellant identified the following foundation for his fear:

    in late 2008 the first appellant borrowed money, at a high rate of interest, from a private lender in India to open a business

    the first appellant fell behind in his repayments and was threatened by the lender and his cronies

    the threats escalated

    when a repayment cheque was dishonoured the first appellant’s life was threatened by the brother of the lender

    after a further two and a half years the appellants left India in fear of their lives.

3    The application by the second appellant (the first appellant’s spouse) for a protection visa depended upon whether the first appellant’s claims were accepted.

4    On 18 October 2012 a delegate of the then Minister for Immigration and Citizenship decided that the first appellant was not entitled to a protection visa and that both applications should therefore be rejected.

5    The delegate was not satisfied that the first appellant had borrowed money from a money lender as he claimed, or that a money lender was threatening his life. In any event, if that was the true position the delegate found that those circumstances would demonstrate a dispute which did not engage Australia’s protection obligations (i.e. on “refugee” protection grounds). The delegate also found that there were not substantial grounds for believing that, apart from those protection obligations, the first appellant faced a real risk of significant harm if removed from Australia (i.e. on “complementary” protection grounds).

6    The appellants applied to the Refugee Review Tribunal (“the RRT”) for review of the delegate’s decision to refuse them protection visas. On 19 August 2013, the RRT affirmed the decision of the delegate.

7    The RRT found important elements of the first appellant’s factual claims to be not credible. It rejected both the refugee protection claims and the complementary protection claims.

8    The RRT accepted that the first appellant had borrowed money from a money lender, but did not accept that the first appellant had been threatened, as he claimed. The RRT said:

65.    The Tribunal is not satisfied that the money lender has threatened the primary applicant and his family as he claimed. It finds that none of the primary or secondary applicant or their children who remain in India, has been harmed by the money-lender. It is not satisfied that the money-lender will harm the primary applicant in the future if he returns to India.

66.    The Tribunal is not satisfied that there is a real chance the primary applicant will suffer serious harm in the reasonably foreseeable future if he returns to India.

67.    It is not satisfied that the primary applicant has a well-founded fear of persecution for a Convention if he returns to India. The primary applicant does not meet the refugee criterion (s.36(2)(a)).

68.    It is therefore necessary to consider whether he meets the complementary protection criterion. For the reasons given above, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the primary applicant’s being removed from Australia to India, there is a real risk that he will suffer significant harm. The primary applicant does not meet the complementary protection criterion (s.36(2)(aa)).

69.    The secondary applicant made no claims other than being a member of the family unit. It follows that the secondary applicant is not a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) and does not meet the family unit criteria (s.36(2)(b) or (c)).

9    The appellants then sought judicial review of the decision of the RRT in the Federal Circuit Court of Australia (“the FCCA”). To succeed in their challenge in the FCCA it was necessary that they show that the RRT made a jurisdictional error. The FCCA rejected the challenge (SZTGX & Anor v Minister for Immigration & Anor [2014] FCCA 1847).

10    The FCCA recorded (at [12]-[15]):

12.    The applicant was put on notice at the first Court date in this matter that, in effect, the Court could only be concerned with whether there was any legal error on the part of the Tribunal in its decision record. However, the applicant’s only complaint before the Court today reveals that he has not understood the nature of the proceedings that he has sought to institute.

13.    The applicant explained he understood the Tribunal’s decision, but that he would nonetheless face difficulties if he were to return to India. He said that he had come to Court to “get a visa”. As I sought to explain to the applicant, the Court has no power to grant him a visa. That is, it is not within the Court’s jurisdiction to grant him a protection visa.

14.    Further, to the extent that it may be said that the applicant’s complaint about the Tribunal’s decision was really a complaint about the findings and conclusion arrived at by the Tribunal, then the Court has no power in the circumstances to intervene and substitute its own findings for those of the Tribunal (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”).

15.    Nothing that the applicant has said today before the Court, therefore, suggests jurisdictional error on the part of the Tribunal, let alone makes any attempt to make it out.

11    Nevertheless, the FCCA went on to examine the written grounds advanced by the appellants which were in the following terms:

1.    The Tribunal denied the applicant procedural fairness by reaching adverse conclusions that certain aspects of his claims were implausible, being conclusions that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.

2.    The Tribunal’s decision was unjust and made without taking into account the full gravity of applicant’s circumstances and consequences of claims. The Tribunal did not consider the applicant who had been under immense and intimidating pressure from Money lender, not able to access effective protection because of his affiliation with Congress party.

3.    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.

4.    The applicant satisfy the key elements of Convention definition as detailed in page 2,3 and 4 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.

5.    The Tribunal failed to investigate applicant claim, specially the grounds of persecution in India. Therefore, the Tribunal decision dated 19 August 2013 was effected by actual bias constituting judicial error.

12    Each of those grounds was discussed and dismissed. The FCCA concluded (at [35]):

35.    In all, I cannot see any jurisdictional error in what the Tribunal has done. No jurisdictional error arises from the applicant’s grounds, the applicant’s complaint, nor otherwise in the material before the Court. It is appropriate that the application be dismissed. I will make an order accordingly.

13    The judgment of the FCCA was delivered on 21 July 2014. On 11 August 2014, the appellants appealed to this Court, on the following stated grounds:

1.    The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant [sic] 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 Circuit Court failed to take into consideration that the Tribunal’s decision was unjust and was made without taking into account the full gravity of my circumstances and consequences of the claim.

14    Those grounds of appeal raise neither a case of appellable error, nor a serious and sufficiently specific contention of jurisdictional error, on the part of the RRT. As the written submissions for the Minister pointed out, they bear no real or apparent relationship to the matters argued earlier and appear to employ a “template” of some kind.

15    Section 91R of the Migration Act 1958 (Cth) limits the application of the Refugees Convention by requiring, amongst other things, that a claim of persecution against a particular person must involve “serious harm”. The meaning of that term is illustrated by s 91R(2) as follows:

91R    Persecution

…

(2)    Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)    a threat to the person’s life or liberty;

(b)    significant physical harassment of the person;

(c)    significant physical ill-treatment of the person;

(d)    significant economic hardship that threatens the person’s capacity to subsist;

(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(Emphasis in original.)

16    There is no substance to the suggestion that the FCCA ignored any relevant requirement or operation of s 91R of the Migration Act. The difficulty for the appellants was, as the FCCA recorded, that rejection by the RRT of the claims of the first appellant on their merits did not appear to the FCCA to involve jurisdictional error. The grounds of appeal in this Court do not identify any such jurisdictional error either.

17    On 13 August 2014 directions were made by a Registrar of the Court that the appeal be listed for hearing in the November appeal sittings of the Court, and that the appellants file written submissions in support of the appeal at least 10 days before the date listed for hearing. Those directions were sent on 13 August 2014 to the appellants at the address they gave for service.

18    The directions provided for the completion, filing and service of an Appeal Book by the Minister, and for the Minister also to file written submissions. Those steps were complied with by the Minister.

19    On 8 September 2014 the appellants were advised that the appeal was listed for hearing on 10 November 2014 at 10.15 am, and were given further detailed information concerning preparation for, and conduct of, the appeal. The letter to them stated prominently on the first page:

TAKE NOTICE: If you or your lawyer does not attend the Court at the specified time, orders (including an order as to costs) may be made in your absence or the absence of your lawyer.

20    On 22 October 2014 the appellants sought permission to conduct the appeal by telephone (to a mobile telephone number) or to defer the hearing of their appeal for some months, on the ground that the first appellant would be in Queensland until January 2015. Each request was refused. The appellants were again advised that if they did not appear the appeal may be determined in their absence.

21    The appellants did not attend when the appeal was listed for hearing. They did not file any written submissions in support of the appeal, as directed.

22    When the appeal was called for hearing, Ms Given applied, under r 36.75 of the Federal Court Rules 2011 (Cth) that the appeal be dismissed with costs due to the absence of the appellants, or for such other order as I thought appropriate. Rule 36.75(1)(a) and (2) provide:

36.75    Absence of party

(1)    If a party is absent when an appeal is called on for hearing, the opposing party may apply to the Court for an order that:

(a)    if the absent party is the appellant:

(i)    the appeal be dismissed; or

(ii)    the hearing be adjourned; or

(iii)    the hearing proceed only if specified steps are taken; or

…

(2)    If a hearing proceeds in a party’s absence and during or at the conclusion of the hearing an order is made, the party who was absent may apply to the Court for an order:

(a)    setting aside or varying the order; and

(b)    for the further conduct of the hearing.

23    Apart from their non-attendance, the appellants are more generally in default and the appeal is also liable to be dismissed under r 36.74, which provides:

36.74    Application to dismiss appeal

(1)    A respondent may apply to the Court for an order that the appeal be dismissed for the failure by an appellant to do any of the following:

(a)    comply with a direction of the Court;

(b)    comply with these Rules;

(c)    attend a hearing relating to the appeal;

(d)    prosecute the appeal.

(2)    An application under subrule (1) must be served on the appellant:

(a)    at the appellant’s address for service; or

(b)    personally.

Note:    The Court may make orders subject to conditions—see rule 1.33. The Court may fix a time for the doing of an act and in default order the appeal be dismissed.

24    At the hearing of the appeal I made an order that the appeal be dismissed under r 36.75 with costs. I said I would publish reasons for that order later in the day. I propose now to add some supplementary orders to the order already made.

25    Rule 36.75 permits the appellants to apply to set aside the order already made. That will ensure that the appellants have a further opportunity to persuade a judge that their appeal truly requires further attention because of a jurisdictional error in the RRT, or an appellable error in the FCCA. The supplementary orders will ensure that this right is exercised within a reasonable time. The opportunity is a final one. It will be apparent from the earlier parts of this judgment that my own study of the material in the Appeal Book has failed to identify any jurisdictional error which might suggest that the appeal has any prospects of success. That is not a final conclusion. It will be open to the appellants to attempt to identify some cogent basis on which the appeal should be upheld, provided that they act promptly. It may assist their case if they filed the written submissions earlier directed. Whatever course they choose, the opportunity to seek further consideration of their case is a limited one.

26    I propose to order that if the appellants do not apply under r 36.75(2) within 14 days, the appeal also stands dismissed pursuant to r 36.74. I waive compliance with r 36.74(2).

27    If an application is made under r 36.75(2) within 14 days, it will be listed for hearing at not before 11 am on 12 December 2014.

Associate:

Dated:    10 November 2014