FEDERAL COURT OF AUSTRALIA

SZUYV v Minister for Immigration and Border Protection [2016] FCA 173

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed.

2.    The applicant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

GLEESON J:

1    The applicant seeks leave to appeal from a decision of the Federal Circuit Court of Australia (“FCCA”) delivered on 23 September 2015: SZUYV v Minister for Immigration and Border Protection [2015] FCCA 2624. In that decision the FCCA judge dismissed an application for judicial review of a decision of the Refugee Review Tribunal (“Tribunal”). The decision to dismiss the application was made pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (“FCCA Rules”) and was, therefore, interlocutory in nature: see r 44.12(2) of the FCCA Rules. Accordingly, leave to appeal from the decision is required: see s 24(1)(A) of the Federal Court of Australia Act 1976 (Cth).

Background

2    The applicant is a male citizen of India. He arrived in Australia as a dependent upon his then spouse on 23 August 2009. He and his wife divorced in Australia on 19 December 2012.

3    The applicant lodged an application for a protection visa on 4 July 2013. He attended an interview with the delegate on 10 January 2014. On 24 January 2014, a delegate of the Minister for Immigration and Border Protection refused the application.

4    On 12 February 2014, the applicant sought a review of the delegate’s decision by the Tribunal.

5    On 7 August 2014, the Tribunal affirmed the decision not to grant the applicant a protection visa. The Tribunal’s decision record stated that the applicant “claims that he has been targeted because of his relationship with a woman of a different caste and religion and that if [he] returns to India he will be subjected to further harm”. The Tribunal “did not find the applicant to be a credible, truthful or reliable witness, and in making this finding, the Tribunal…considered the various internal inconsistencies in his evidence, omission of claims in his statement, non-credible evidence, and his delay in claiming asylum in Australia, as well as other concerns”.

6    The Tribunal found that the applicant “had fabricated an account of events upon which he based his protection claims”.

7    On 25 August 2014, the applicant applied for judicial review of the Tribunal’s decision. The stated grounds of the application were:

1.    The [Tribunal] denied the applicant procedural fairness by reaching an 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 failed to consider an integer of the applicant’s claim, in failing to consider whether or not the applicant in India was at risk of harm from in-laws, and not able to access effective protection.

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.

FCCA Judge’s reasons

8    The FCCA judge dismissed the application because he was not satisfied that the application had raised an arguable case for the relief sought.

9    As to ground 1, his Honour said:

12.    I invited oral submissions from the applicant concerning his grounds of review. His focus of attention was on Ground 1. The applicant is concerned about the Tribunal’s treatment of the documents he submitted in support of his claims. He asserts that the Tribunal should have given weight to his documents. The documents in issue are reproduced at CB 64. It is plain from the delegate’s decision that the documents were rejected by the delegate for credibility reasons. The delegate gave no weight to them. The applicant was therefore on notice that the credibility of his documentary evidence, as well as his claims in general, would be an issue in the review.

13.    Although the precise details are not known, it is apparent from the Tribunal’s decision record that the Tribunal’s credibility concerns, including its concerns relating to the documents, were discussed at the hearing conducted by the Tribunal. The Tribunal considered the documents at [28]-[32] of its reasons . The conclusions reached by the Tribunal were open to it on the material before it, and there was no procedural unfairness in the Tribunal’s approach to that issue.

14.    The applicant also expressed concern that he was unable to produce his original Indian passport to the Tribunal. The Tribunal mentions that at [13] of its reasons , but it is apparent that the Tribunal accepted the applicant's photocopy of the relevant pages as establishing his identity and nationality.

15.    It is true that there is a further discussion about the applicant's passport at [37] of the Tribunal’s reasons. The Tribunal there recites a matter of detail dealt with by the delegate. It does not appear to me that any dispositive issue was raised before the Tribunal from the simple fact that the applicant did not have available his original passport.

16.    More generally, there was in my view no procedural unfairness in the Tribunal reaching adverse credibility conclusions about the applicant's claims. Those concerns were certainly not limited to any issue of implausibility, and the conclusions reached by the Tribunal were available to it on the material before it, and were reached after a fair hearing process.

10    From paragraphs [28] to [32] of the Tribunal’s decision record, it appears that the Tribunal did not accord any weight to the documents submitted by the applicant. The documents comprised two affidavits, from the applicant’s brother and the sarpanch of the applicant’s village, and an undated letter. The Tribunal questioned aspects of the affidavits, including the fact that they were in identical terms, that they each incorrectly stated that the applicant and his wife had left for Australian in March 2009 and that they each stated that the applicant had been “critically injured” when attacked by his wife’s uncle in February 2007. The latter statement was apparently inconsistent with the applicant’s claim that he had suffered bruising and a cut to his ankle, not requiring hospitalisation.

11    As to ground 2, the FCCA judge concluded, at [17], on the available material, that the Tribunal did consider all elements or integers of the applicant’s claims.

12    As to ground 3, his Honour said: “The third ground of review is in template form and lacks particulars.”

Principles governing leave to appeal

13    The principles governing the grant of leave to appeal are well established. Although each case must be considered on its merits, generally an applicant for grant of leave must establish:

(a)    that, in all the circumstances of the case, the decision was attended by sufficient doubt to warrant its being reconsidered by the Full Court; and

(b)    that substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corporation Pty Limited v Dart Industries Inc [1991] FCA 655 at 2; (1991) 33 FCR 397 at 398–400; Johnson Tiles Pty Limited v Esso Australia Pty Limited [2000] FCA 1572; (2000) 104 FCR 564 at [44]; Samsung Electronics Co Limited v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 at [26]–[30].

14    Leave will be more readily granted where an interlocutory decision determines a substantive right, rather than a mere point of procedure: MZXGP v Minister for Immigration and Multicultural Affairs [2006] FCA 1075 at [12] citing Décor Corporation at 400 and Eltran Pty Limited v Westpac Banking Corporation [1988] FCA 398; (1998) 32 FCR 195 at 202.

15    In Johnson Tiles, French J (as he then was) said at [43]:

If a proceeding is dismissed because it is frivolous or vexatious or because no reasonable cause of action is disclosed the decision is treated as interlocutory. However, leave will usually be granted in such a case if there is any doubt about the decision at first instance – Little v Victoria [1998] 4 VR 596 at 598–600 and 601 (Calloway JA, Buchanan JA agreeing).

16    In other contexts, an appeal against a finding of satisfaction as to a matter is subject to the same principles that apply to an appeal from a discretionary decision: see Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 especially at 210–212; Allied Operations Pty Limited v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 especially at [19], [27], [32] and Russo v ILO [2003] HCA 53; (2003) 215 CLR 643 at [27].

17    Applying these principles in this case, the applicant must demonstrate sufficient doubt that, in failing to be satisfied that the application had raised an arguable case for relief, the FCCA judge:

(a)    acted upon a wrong principle;

(b)    allowed extraneous or irrelevant matters to guide or affect him;

(c)    mistook the facts;

(d)    did not take into account some material consideration; or

(e)    reached a result that is plainly unreasonable or unjust: House v R [1936] HCA 40; (1936) 55 CLR 499 at 504–505.

Grounds of application for leave to appeal

18    The stated grounds for the application for leave to appeal are:

(1)    The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claims 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 learned Judge dismissed the application without considering the legal and factual errors contained in the decision of AAT.

19    There does not appear to be a draft notice of appeal.

Applicant’s submissions

20    The applicant did not file written submissions.

21    At the hearing of the appeal, he represented himself with the assistance of a Punjabi interpreter. The applicant submitted that the FCCA and the Tribunal had not looked at this case properly because, if they had done so, they would not have refused his application for a protection visa. He also submitted that, if he had been asked for something else to support his application, he would have provided it.

Consideration

22    The grounds of appeal are “template” grounds, that do not reflect the grounds for the application to the FCCA and do not engage with the decision of the FCCA judge in a meaningful way: cf., SZSHM v Minister for Immigration and Border Protection [2014] FCA 213 at [8]; SZTGX v Minister for Immigration and Border Protection [2014[ FCA 1201 at [14].

23    As Griffiths J said in AAX15 v Minister for Immigration and Border Protection [2015] FCA 1206 at [18]:

The FCCA cannot be criticised for failing to consider whether the Tribunal acted in a “manifestly unreasonable way” when no such contention was advanced before it to that effect by the appellant.

24    The applicant’s oral submissions did not identify any possible error on the part of the FCCA judge. I have read the decisions of the FCCA and the Tribunal and I have not identified any matter to suggest that the applicant raised an arguable case for relief before the FCCA.

25    In particular, the Tribunal was entitled to assess the weight of the documents and to accord them no weight, as it did. There was no error in the FCCA judge’s conclusion that ground 1 of the application for judicial review did not raise an arguable case for relief.

Conclusion

26    The FCCA decision is not attended by sufficient doubt to warrant reconsideration, or by any doubt.

27    Accordingly, the application for leave to appeal must be dismissed with costs.

Associate:

Dated:    3 March 2016