FEDERAL COURT OF AUSTRALIA

SZKDL v Minister for Home Affairs [2019] FCA 181

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed

2.    The appellant pay the first respondent’s costs of the appeal, fixed in the amount of $4,242.

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

REASONS FOR JUDGMENT

REVISED FROM THE TRANSCRIPT

MCKERRACHER J:

1    As long ago as June 2006, the appellant, who is an Indian citizen, arrived in Australia on a tourist visa. Ten days after his arrival he made an application for a protection visa, but a little less than a month after that, a delegate of the Minister refused the appellant’s application for a protection visa. The Refugee Review Tribunal, as it then was, in December 2006 affirmed the decision of the delegate. Following this, the appellant made several unsuccessful applications for judicial review to the Federal Magistrates Court, as it then was, then to the Federal Court and to the High Court along with requests for ministerial intervention.

2    On 21 August 2013, pursuant to SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235, the appellant lodged this protection visa application. Two years later, on 25 September 2015, the Minister’s delegate refused that application, and on 1 May 2017, the Tribunal reconsidered the application, but affirmed the decision of the delegate. On an application for judicial review to the Federal Circuit Court of Australia, the Federal Circuit Court dismissed the application for review. This is now the appeal of the appellant from the Federal Circuit Court decision delivered on 6 August 2018 in which the judicial review application was dismissed.

BACKGROUND

3    The appellant claimed to be a Hindu from the city of Ahmedabad in Gujarat state in India. He claimed that if he was returned to India, he claimed fear of harm from the Congress Party members and from Islamic fundamentalists by reason of his involvement with certain political parties. He also claimed that his shop had been destroyed in an arson attack due to his involvement with the various political parties.

4    In 2002, a train fire killed certain Hindu pilgrims, sparking riots in the city, and he claimed that he saw his friend being shot and killed during those riots. The appellant also claimed that at some point between 2002, shortly after the riots, and three years later in 2005, a particular Congress Party person who was revengeful set fire to his shop. He and his family feared staying at their home, but he did not report the arson to the police as he thought the police would ask for money. There were other claims. As I have indicated, the Tribunal found that the appellant was not a person in respect of whom Australia owed protection obligations under s 36(2)(aa) of the Migration Act 1958 (Cth). In particular, it was concluded that the appellant had only low-level involvement tasks for the political parties and, as such, would have had only a low political or social profile.

5    The Tribunal did not accept the account that the appellant’s shop business was burned because of his political or social profile, and as to being targeted by the Congress Party or Muslim agents, the Tribunal did not accept this claim due to the minor-level political connections, low social and political profile and low-level involvement with the parties. The Tribunal said further that given the length of time that had passed, any risk of harm would since have dissipated. It concluded that the appellant would not be at risk of significant harm due to any future political activities.

IN THE FEDERAL CIRCUIT COURT

6    On seeking judicial review in the Federal Circuit Court, the first ground of review sought by the appellant was that the Tribunal misconstrued the risk and fear of significant harm as set out in 36(2A) of the Act, the particulars being that the Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the appellant upon his return to India.

7    In relation to that ground, the primary judge concluded that there was nothing contained in the reasons of the Tribunal which could have supported the appellant’s assertion, but, rather, the attachment to the reasons of the Tribunal outlined an accurate summary of the requirements of s 36(2)(aa) including the requirement that an applicant face a real risk of significant harm and referred to the exhaustive definition of significant harm contained in s 36(2A) of the Act. In addition, his Honour outlined that the Tribunal reasons themselves also focused upon both the real risk of harm and the individual acts or omissions that might constitute significant harm. The primary judge was unable to discern any error pursuant to ground 1.

8    The second ground before the primary judge was that the Tribunal had no jurisdiction to make the decision because its ‘reasonable satisfaction’ was not arrived at in accordance with the provisions of the Act.

9    In relation to this ground, the Federal Circuit Court noted that the ground was a ‘template ground’ without any sensible meaning and held that no error was established by it. If, however, it could be understood as an assertion that the Tribunal had miscarried by misconstruing the task before it, the primary judge rejected that contention basically on the same reasons as ground 1.

10    His Honour also rejected any contention that the Tribunal’s decision was unreasonable. In particular, he noted that the Tribunal gave proper reasons for its adverse findings regarding the vague and changing nature of the evidence of the appellant and otherwise properly assessed the appellant’s claims against relevant independent country information.

11    The third ground of appeal in the Federal Circuit Court was that the Tribunal had failed to investigate his claims, especially the grounds of persecution in India.

12    As to this contention, the Tribunal’s reasons, according to his Honour, revealed that it did, in fact, make inquiries about the claims made by the appellant and properly had regard to relevant independent country information in assessing them. There was no failure on the part of the Tribunal, according to the primary judge, to inquire about any critical fact. On that basis, his Honour rejected ground 3.

THE APPEAL

13    In this Court, the grounds advanced by the appellant by way of appeal from the Federal Circuit Court decision are that:

1.    The Federal Circuit [C]ourt ought to have found that the Tribunal erred in finding that I do not have genuine fear of persecution despite I [sic] have been living in Australia and never returned to India because of fear of persecution.

2.    The learned Federal Judge has dismissed the case without considering the legal and factual errors contained in the decision of the AAT. [AAT decision the subject of this appeal.]

14    Before this hearing commenced, although no submissions had been filed and served by the appellant, the Minister had prepared and filed written submissions and served them on the appellant. The appellant indicated that he had been unable to comprehend those submissions. I deferred the commencement of the hearing for a period of 20 minutes to allow those submissions to be translated by the interpreter who has accompanied the appellant in Court and who has translated to the appellant all of the proceedings in the Court.

15    The appellant, on being invited to speak in support of his grounds of appeal, stressed that he has spent a lot of time (at one point he said money, but then corrected this to a lot of time) in trying to get answers to help him with his claim. He says that he has proof that his claims are true, but he has not been able to advance his position.

16    As I explained, the role of this Court, of course, is to identify relevant error, if any, on the part of the Federal Circuit Court rather than to review the merits of the appellant’s claim. I expressly invited the appellant to identify specific errors of the primary judge, but the appellant repeated the matters which I have just outlined.

17    The grounds of appeal advanced are unparticularised and do not identify any specific appellable error on the part of the primary judge or, for that matter, on the part of the Tribunal but, nevertheless, I have read both the decision of the Tribunal and the decision of the primary judge with regard both to the grounds of appeal in this Court and the grounds of review advanced in the Federal Circuit Court. I will deal with each of the grounds sequentially.

18    As to the first ground, in my view, this could be characterised as simply an expression of disagreement with the conclusions contained in the primary judge’s reasons. It does not identify appellable error in the reasoning of the Federal Circuit Court which is a requirement in order to succeed on an appeal in this Court. It was necessary for the appellant to demonstrate to the Federal Circuit Court error, whether factual or legal, and whether such an error was material to the exercise of the jurisdiction of the Tribunal. The onus of making out a ground of appeal in these proceedings is clearly a matter for the appellant. The first ground cannot succeed.

19    The second ground of appeal also expresses disagreement and contends the primary judge was at error because he dismissed his case without considering the legal and factual errors contained in the decision of the Tribunal but, again, there is a lack of particulars and no further elucidation of the particulars being advanced in the address of the appellant to the Court today.

20    The primary judge was correct to conclude that the Tribunal did in fact refer to and apply the relevant legal test. It outlined the relevant law in the attachment forming part of its reasons and applied them to the facts of the case on the evidence available to it.

21    I am not satisfied the appellant has succeeded in demonstrating the primary judge erred in his findings with respect to the Tribunal’s consideration. This appeal, unfortunately for the appellant, amounts only to an impermissible engagement in merits review.

22    The Minister has filed an affidavit going to costs. The affidavit has been served on the appellant. I am satisfied that the appeal should be dismissed with costs fixed in accordance with the evidence in the affidavit at $4242.

Associate:

Dated:    21 February 2019