FEDERAL COURT OF AUSTRALIA

SZUXI v Minister for Immigration and Border Protection [2015] FCA 1475

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The First and Second Appellants are to pay the costs of the First Respondent.

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

REASONS FOR JUDGMENT

1    The First Appellant is a citizen of Fiji. He is part-European and a carpenter by trade. The Second Appellant is his wife, whom he married in Suva, Fiji, in 1999. She is an ethnic Fijian. The Third Appellant is their son.

2    Applications were made for protection visas. The principal applicant was the First Appellant.

3    A delegate of the Minister refused those applications in February 2014. Review was sought by the then Refugee Review Tribunal. That Tribunal affirmed the delegate’s decision in August 2014. In August 2014 an application was filed in the Federal Circuit Court of Australia seeking judicial review of the Tribunal’s decision. The Federal Circuit Court amended the name of the Second Respondent (the former Refugee Review Tribunal) to reflect its incorporation into the Administrative Appeals Tribunal on 1 July 2015 and proceeded to dismiss that application in July 2015: SZUXI & Ors v Minister for Immigration & Anor [2015] FCCA 2106.

4    A Notice of Appeal was filed in this Court in August 2015. Two Grounds of Appeal were set forth, namely (without alteration):

1.    His Honour Nicholls J of the Federal Circuit Court of Australia erred in fact and in law, making findings that there was no arguable issues of fact or law in circumstances where my application before the court highlighted issues of fact and law.

2.    His honour Nicholls J of the Federal Circuit Court of Australia erred in fact and in law, for making findings that my application was untenable and that the proposition advanced in respect of the alleged errors had no prospect no reasonable prospect of success and were not reasonablely arguable and for dismissing my application before the Court.

Neither Ground of Appeal has been made out.

5    The Appellants appeared before this Court in person, as they did before the Federal Circuit Court. The First Appellant advanced submissions on his own behalf and on behalf of his wife and son.

6    The appeal is to be dismissed and the First and Second Appellants are ordered to pay the costs of the Respondent Minister.

No arguable issues of fact or law

7    The first Ground of Appeal is without substance. No “findings” were made by the Federal Circuit Court Judge that there were “no arguable issues of fact or law…”.

8    Before that Court, the now-Appellants relied upon three Grounds of Review, namely allegations as to jurisdictional error by reason of:

    a failure on the part of the Tribunal to afford procedural fairness;

    a misconstruction by the Tribunal of the phrase “significant harm” as employed in s 36(2A) of the Migration Act 1958 (Cth); and

    a failure on the part of the Tribunal to have regard to “relevant materials”.

The Federal Circuit Court considered each of these Grounds of Review.

9    As to the first Ground, the Federal Circuit Court Judge concluded that “the Tribunal complied with its relevant procedural fairness requirements at the hearing and with the opportunity given to the applicant to make further submissions”: [2015] FCCA 2106 at [31]. Given the fact that the now-Appellants appeared before that Court unrepresented, that Court went on independently to consider whether the wife had also been afforded a “fair opportunity to give her evidence and arguments to the Tribunal”: [2015] FCCA 2106 at [38]. That question arose because the wife was unable to give evidence before the Tribunal because there was no interpreter available. The Tribunal had, however, afforded her an opportunity to provide evidence and submissions after the hearing before the Tribunal. Although such an argument had not been particularised, the conclusion was reached that the wife had been afforded a fair opportunity to advance her claims: [2015] FCCA 2106 at [38] to [43]. The second Ground of Review, which was not particularised, was also addressed and rejected: [2015] FCCA 2106 at [44] to [46]. It was concluded that there was no “legal error in how the Tribunal approached this aspect of its task”. The “relevant material” referred to in the third Ground of Review was not identified. The conclusion was reached that there had been no failure on the part of the Tribunal to “consider all the material that was relevantly before it”: [2015] FCCA 2106 at [47]. There was, perhaps, some uncertainty as to whether the “material” referred to was either that material provided to the Tribunal in advance of the hearing or that material provided subsequent to the hearing. Either way, all such material was in fact taken into account.

10    The Federal Circuit Court Judge also considered and rejected an argument advanced orally before it, namely that there was a reasonable apprehension of bias on the part of the Tribunal: [2015] FCCA 2106 at [48] to [54]. That Court also rejected a further argument advanced on the day of the hearing that the husband “felt that there was unfair treatment in Fiji because there was ‘racism’, and that they want their son to grow up in a country where ‘everyone is equal’”: [2015] FCCA 2106 at [55] to [57].

11    In summary, the Federal Circuit Court Judge made no finding that “there was no arguable issues of fact or law”; rather, that Court considered and rejected each of the Grounds of Review identified in the Application to that Court, including potential arguments which may otherwise have been available and arguments raised for the first time at the hearing before that Court.

12    The first Ground of Appeal is thus rejected.

Untenable findings, etc

13    The second Ground of Appeal is equally without substance.

14    To the extent that this second Ground is inextricably tied to the former argument, namely an erroneous contention that the Federal Circuit Court Judge had concluded that the case had “no reasonable prospects of success”, the second Ground is similarly rejected. No conclusion was expressed by the Federal Circuit Court Judge that the case had “no reasonable prospects of success”.

15    To the extent that this second Ground of Appeal may be construed as a challenge to the “findings” made by the Tribunal, rather than the primary Judge, it is equally without substance. Indeed, given the claims made by the now First Appellant before the Tribunal, those findings seem unexceptional. Without any attempt to be exhaustive, the Tribunal summarised the claims made before it as follows (without alteration):

17.    Asked why he applied for protection in Australia, the applicant said being of part-European descent, he has been discriminated against by the government of Fiji. Wherever he goes “people push him aside”. For example, when he went to the government department to obtain birth certificates for his children, they made him wait, directed him to other people and “push him around”. When asked whether all non-Fijians are treated in a similar manner, he responded that all minorities are treated badly but “Fiji-Indians have their own department”. When asked whether his wife could assist him in dealing with government officials, he responded she did not want to deal with administration.

18.    In response to questions, the applicant said that he was not treated badly at his work, adding that his employer was not an indigenous Fijian. He had not been arrested or charged in Fiji.

19.    Asked whether he had experienced any harm in Fiji, the applicant stated that his older children were not given scholarships and he did not want his youngest son to face discrimination growing up in Fiji. The delegate put to the applicant that his adult children had completed their education and are all employed. He responded that he had to work hard to pay for their education.

20.    Asked whether he could provide more examples of discrimination he faced in Fiji, the applicant said that he “could not think of any other examples”. Asked whether he had experienced any other harm in Fiji, the applicant then said that he was assaulted and punched in 1987 after the movies when a group of indigenous Fijians attacked everyone who was not an indigenous Fijian. He offered no other instances.

The Tribunal concluded in part that it was “not satisfied that any such incident went beyond harassment or amounted to serious or significant harm, or that of itself it provides substantial grounds for believing that the applicant faces a real chance or real risk of serious or significant harm in the reasonably foreseeable future” (at [56]).

16    The second Ground of Appeal is also rejected.

CONCLUSIONS

17    Neither of the Grounds of Appeal has been made out.

18    Irrespective of how those Grounds were expressed, no appellable error is otherwise self-evident in the reasons for decision the subject of appeal. No appellable error is exposed in the reasons provided by the primary Judge for his rejection of each of the three Grounds upon which the application for review was advanced before that Court.

19    It should, perhaps, be noted that the draftsman of the Grounds of Appeal had little (if any) regard to the reasons for decision of the Federal Circuit Court. Needless to say, such an approach to conducting an appeal fails to provide the Court with any assistance and is of even less assistance to the Appellants.

20    There is no reason why costs should not follow the event. Given that the Third Appellant (the son) is a minor, it is prudent that the order for costs should be confined to an order that the First and Second Appellants (the parents) should pay the costs incurred.

THE ORDERS OF THE COURT ARE:

1.    The appeal is dismissed.

2.    The First and Second Appellants are to pay the costs of the First Respondent.

Associate:

Dated:    24 December 2015