FEDERAL COURT OF AUSTRALIA SZUSL v Minister for Immigration and Border Protection [2015] FCA 260 Citation: SZUSL v Minister for Immigration and Border Protection [2015] FCA 260 Appeal from: Application for leave to appeal: SZUSL v Minister for Immigration and Border Protection [2014] FCCA 2663 Parties: SZUSL v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number(s): NSD 1294 of 2014 Judge(s): YATES J Date of judgment: 25 March 2015 Catchwords: MIGRATION – application for leave to appeal – application dismissed Legislation: Federal Circuit Court Rules 2001 (Cth) r 44.12 Federal Court of Australia Act 1976 (Cth) s 24(1A) Migration Act 1958 (Cth) s 36(3) Cases cited: Décor Corporation Pty Ltd and Anor v Dart Industries Inc (1991) 33 FCR 397 Kaur v Minister for Immigration and Border Protection [2014] FCA 1297 Mann v Minister for Immigration and Border Protection [2015] FCA 65 Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238 Singh v Minister for Immigration and Border Protection [2015] FCA 87 SZTOX v Minister for Immigration and Border Protection [2015] FCA 105 Date of hearing: 5 March 2015 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 18 Counsel for the Applicant: The applicant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Ms H Musgrove of Sparke Helmore Lawyers Counsel for the Second Respondent: The second respondent filed a submitting appearance IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1294 of 2014 BETWEEN: SZUSL Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: YATES J DATE OF ORDER: 25 MARCH 2015 WHERE MADE: SYDNEY 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. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1294 of 2014 BETWEEN: SZUSL Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: YATES J DATE: 25 MARCH 2015 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an application for leave to appeal from a judgment of the Federal Circuit Court of Australia (Federal Circuit Court) which dismissed the applicant's application for judicial review of a decision of the second respondent, the Refugee Review Tribunal (Tribunal). The Tribunal's decision was to affirm a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (Minister) not to grant the applicant a Protection (Class XA) visa. 2 The Federal Circuit Court judgment was made under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) which empowers the Federal Circuit Court to dismiss an application if not satisfied that an application has raised an arguable case for the relief claimed. A judgment given under that rule is an interlocutory judgment for the purposes of an appeal to this Court. As such, leave to appeal is required: s 24(1A) of the Federal Court of Australia Act 1976 (Cth). 3 In considering whether leave to appeal should be granted, the Court usually proceeds on the basis that the applicant must establish that the judgment under challenge is attended with sufficient doubt so as to warrant it being reconsidered by an appellate court, and that substantial injustice would result if leave were refused, supposing the judgment to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-400; Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238 at [26]-[30]. This approach has been adopted in relation to applications for leave to appeal in migration cases coming from the Federal Circuit Court: for recent examples, see Kaur v Minister for Immigration and Border Protection [2014] FCA 1297 at [1]; Mann v Minister for Immigration and Border Protection [2015] FCA 65 at [4]; Singh v Minister for Immigration and Border Protection [2015] FCA 87 at [27]; SZTOX v Minister for Immigration and Border Protection [2015] FCA 105 at [4]. 4 Before turning to consider the application of that approach in the present case, it is necessary to summarise some background matters. The applicant's claims 5 The primary judge summarised the applicant's claims at [5]-[9] of the reasons below. There is no challenge to that summary in the present application. It is convenient to rely on it here: 5. The applicant is a citizen of Nepal who arrived in Australia in November 2010 travelling on a Student visa … On 17 July 2013 the applicant applied for a Protection visa … Attached to the Protection visa application was a statutory declaration prepared by the applicant setting out his protection claims … 6. The applicant claimed to fear harm in Nepal from Maoists because of his support for the Rastriya Prajatantra Party (the "RPP"). The applicant claimed that, as a result of the influence of his father and father's friend, he became a supporter of the RPP and then joined in 2002. At the end of 2002 Maoists threatened the applicant and his family. In March 2003 the Maoists abducted the applicant and some students from the local school at which he was teaching. The applicant was allowed to return home after a few weeks. 7. During July 2003 the applicant held a program in his village to celebrate the then Nepalese King's birthday, but Maoists came and killed two members of the RPP, and also hit the applicant with a knife and wooden rod. The next day the applicant's parents' properties were destroyed and they were forced to give money to the Maoists. The applicant lodged complaints, but no action was taken. 8. Shortly afterwards, the applicant left his village and went to Lalitpur to stay with his sister. He feared being killed by Maoists and did not leave the house often. An agent in Kathmandu arranged for the applicant to be granted a working visa for Kuwait where the applicant went for 27 months. The applicant thereafter returned to Nepal, but engaged the same agent to arrange a visa for him to work in Qatar. The applicant then went to Qatar for four years. 9. The applicant joined the Rastriya Prajatantra Party Nepal (the "RPP Nepal") when he returned from Qatar in 2010 as they were the only party who supported the Monarchy. The applicant remained only in Kathmandu, but he was still harassed by Maoists after a Maoist from his village detected his presence. He claimed he is constantly under threat if he remains in Nepal from Maoists because of his political opinion as a supporter of the Monarchy. 6 The Tribunal accepted some of the applicant's factual claims but, for a number of reasons expressed in its decision record, the Tribunal was not persuaded that the applicant is a person to whom Australia owes protection obligations. In this connection, the Tribunal held at [24]-[25] of its decision record: 24. Taking these considerations together, I am not satisfied that the Applicant does fear harm on return to his village or that there is any reason to believe he would, in fact, be at risk there, from Maoists or anyone else. I am not satisfied there is a real chance that he would suffer harm of any kind in Nepal because of his political opinion, real or imputed. He does not claim to fear harm for any other reason in Nepal and no other reason is apparent on the face of the information before the Tribunal. 25. I am not satisfied that the Applicant has a well-founded fear of persecution because of his political opinion or for any other Convention reason should he return to Nepal, now or in the reasonably foreseeable future, and I am not satisfied that he is a refugee. 7 Later, at [27]-[28], the Tribunal held: 27. In the light of the information before the Tribunal I am not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Nepal, there is a real risk that he would suffer significant harm as defined in subsection 36(2A) of the [Migration Act 1958 (Cth)]. 28. There is no suggestion that the Applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the Applicant does not satisfy the criterion in s.36(2). 8 The Tribunal's decision record notes (at [16]) that, at the hearing, it raised the question of protection for the applicant in India: 16. … • I put to him that as a Nepal citizen he had the right to enter and remain in India, a country where he would not be at risk of persecution and would not be returned to Nepal or sent to another country where he might face persecution. He said he was aware that his Nepalese citizenship allowed him to enter India without a passport. However, he feared that the same people who had targeted him in his village would be able to follow him and harm him in India. I put to him it seemed hard to believe anyone would be able to find him in India, given the size of its population. He said there would be a risk because he had already been targeted. I noted that there were no reports of Nepalese living in India being targeted by Nepalese Maoists. He indicated he had no comment on this. I explained the operation of s.36(3) and its possible relevance for his protection claims. He confirmed he understood this but said he had no comment to make on it. 9 It is important to note, however, that the Tribunal did not make a positive finding that the applicant had an entitlement to protection in India, and it did not refuse the applicant's application for a visa under s 36(3) of the Migration Act 1958 (Cth). Rather, the Tribunal came to the conclusion that Australia does not owe protection obligations to the applicant, for the reasons quoted at [6]-[7] above. 10 When the matter came before the Federal Circuit Court, the applicant raised three grounds of review, expressed as follows: 1. I am not happy with the Refugee Review Tribunal Member's decision in my case because I am a genuine refugee and the RRT Member ignored to give me natural justice and fairness in my case and refused me. 2. I argue that the Refugee Review Tribunal Member's decision is not free from legal error when the decision was made in my case. 3. I seek justice in my case. 11 The applicant also filed written submissions which advanced a number of other grounds directed to establishing jurisdictional error on the part of the Tribunal. The primary judge set out the submissions at [18] of his reasons. It is only necessary for me to quote paragraphs 7 and 8 of those submissions: 7. I am unable to relocate to India for my protection because I do not have a legally enforceable right to remain permanently in India. The Tribunal Member failed to consider the fact that I face discrimination and am not given state protection in India although I require no visa to enter India. 8. As a Nepalese citizen I cannot expect justice from Indian Authority so it leads to a feeling of lack of power over my life choice and a deep-seated insecurity for my life and I argue that India should not be considered as a Safe Haven for me as a Nepalese. 12 The primary judge rejected all bases on which the applicant sought to establish jurisdictional error on the part of the Tribunal. With respect to paragraphs 7 and 8 of the applicant's submissions, the primary judge held (at [51]-[54]): 51. The last two paragraphs of the applicant's submissions should be read together as they address the same claims. The applicant claims he does not have a legally enforceable right to remain in India and the Tribunal failed to consider the fact that he would face discrimination and not be given state protection there. 52. To the extent that this ground raises a complaint in respect of the Tribunal's reliance or use of country information, the choice and weight given to country information is a matter for the Tribunal (see [40]-[41] above). Further, the Tribunal was permitted to consider the applicant's right to enter India pursuant to s.36(3) of the Migration Act. 53. Ultimately, however, the Tribunal was not satisfied that the applicant feared harm from Maoists (or anyone else) or that there was a real chance he would suffer serious harm as a result of his political opinion, actual or imputed (see Decision Record at [24] … It also was not satisfied there was a real risk of the applicant suffering significant harm under the complementary protection provisions of the Migration Act. Accordingly, having made those findings, the Tribunal was not obliged to consider the applicant's right to enter and reside in India as it was not satisfied there was any basis for him to fear harm in Nepal. 54. Paragraphs [7] and [8] of the applicant's written submissions raise no arguable case for the relief claimed and cannot be sustained. The application for leave to appeal 13 In the present application, the applicant raises the following grounds, which are mirrored in his draft notice of appeal: 1. The Federal Circuit Court made a legal by failing to find that the Tribunal made a jurisdictional error in making the finding that I could relocate to India when there was no evidence before it to that effect. 2. The Federal Circuit Court erred by failing to find that the Tribunal made a jurisdictional error in concluding that I could attract the attention of the Maoists having regard to the material upon which it relied, that reliance being irrational and/ or unreasonable. 3. The Federal Circuit Court erred by failing to find that the Tribunal made a jurisdictional error in concluding that I did not have a well-founded fear of persecution that conclusion being irrational and/ or unreasonable. 14 The first ground cannot succeed. The Tribunal made no finding that the applicant could relocate to India, although, as I have noted, the topic came up in the course of the hearing before the Tribunal. The primary judge correctly concluded that, based on its other findings, the Tribunal was not obliged to consider the applicant's right to enter and reside in India, and it made no finding in that regard. 15 The second ground cannot succeed. I take it to be directed to the conclusions at [24]-[25] of the Tribunal's decision record, which I have quoted at [6] above. This ground was not raised before the Federal Circuit Court. In any event, there is nothing in the Tribunal's findings or reasons that would sustain an argument that these conclusions are either irrational or unreasonable. This ground appears to invite impermissible merits review of the Tribunal's decision by the Court exercising its appellate function. 16 The third ground cannot succeed, for the same reasons that the second ground cannot succeed. 17 It follows from these conclusions that the Federal Circuit Court judgment is not attended with sufficient doubt so as to warrant it being reconsidered by this Court. Disposition 18 For these reasons, the applicant's application for leave to appeal should be refused. The application will be dismissed with costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates. Associate: Dated: 25 March 2015