FEDERAL COURT OF AUSTRALIA SZTRB v Minister for Immigration & Border Protection [2015] FCA 336 Citation: SZTRB v Minister for Immigration & Border Protection [2015] FCA 336 Appeal from: Application for leave to appeal: SZTRB & Anor v Minister for Immigration & Anor [2014] FCCA 1717 Parties: SZTRB and SZTRC v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number(s): NSD 831 of 2014 Judge(s): BUCHANAN J Date of judgment: 13 April 2015 Catchwords: MIGRATION – application for leave to appeal – where applicant in default of orders to file written submissions – application determined on the papers Legislation: Federal Circuit Court Rules 2001 (Cth), r 44.12(1)(a) Federal Court of Australia Act 1976 (Cth), s 43(3)(d) Federal Court Rules 2011 (Cth), rr 40.43, 40.44, Sch 3 item 15 Date of hearing: Heard on the papers Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 31 Counsel for the Applicants: The applicants were self-represented Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The second respondent submitted save as to costs IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 831 of 2014 BETWEEN: SZTRB First Applicant SZTRC Second Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: BUCHANAN J DATE OF ORDER: 13 April 2015 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application for leave to appeal be dismissed. 2. The applicants pay the first respondent's costs as taxed if not agreed. 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 831 of 2014 BETWEEN: SZTRB First Applicant SZTRC Second Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: BUCHANAN J DATE: 13 April 2015 PLACE: SYDNEY REASONS FOR JUDGMENT Background 1 Before I deal with whether the application for leave to appeal in this case, against a judgment of the Federal Circuit Court of Australia, should be granted or dismissed, I will set out the background because it will aid an understanding of the outcome of the application. 2 The applicants are husband and wife who are citizens of India who applied for protection visas on 26 February 2013, having arrived in Australia around December 2012. Their claims for protection visas depend on the claims of the first applicant. 3 A delegate of the Minister refused the applicants' claims for protection visas on 24 July 2013. The applicants then applied to the Refugee Review Tribunal ("the RRT") for review of the delegate's decision. 4 The first applicant's claims were summarised by the RRT as follows: 22. The applicant's claims can be summarised as follows. He was born in [year] in [location] in Gujarat state. He operated his own grocery business from 1985 to early November 2012. He has been a member of the Congress Party for 10-12 years. He does not know where his membership card is stored in his home so he is unable to ask his daughter to look for it and submit it as evidence. About five years ago he started actively working for the party participating in meetings and party work. He provided information to people about their activities and policies around election times. People came to know about his support and BJP supporters were entering his store and taking items without paying and harassing his customers. He was the main target of BJP supporters and was tortured by which he means he was pressured to leave the party and he was stressed and harassed. He was injured by BJP supporters and sought treatment from a doctor and a bandage was applied. He complained to the police but was informed that his complaint would not be taken seriously because the matter was small and they did not have time to investigate. He became scared and asked for assistance from a party activist. Several months before the 2012 state election his business started to go downhill because of harassment from BJP supporters. He closed his business on 7 November 2012 and arrived in Australia around election time and did not vote. 5 The RRT substantially accepted the factual account given by the first applicant, but nevertheless affirmed the decision of the delegate not to grant a protection visa. The RRT assessed the first applicant's claims as follows: 33. I accept that in 2007 the applicant was subject to some verbal harassment on 7-8 occasions by BJP supporters and that they discouraged customers from coming into his shop. I accept that on one occasion in 2007 that he was walking along and that he had an argument with a BJP member and that he was slapped by this man 2-3 times but that he did not seek medical treatment. I accept that on another occasion 4-5 members of the BJP came to his shop and buy some products and that they refused to pay and instead ran away. I accept that they came back a second time and the applicant refused to sell them any goods and that a tussle occurred. I accept that in this tussle the applicant was injured on the arm and went to a doctor who put a bandage on him. I accept that he went to the police who told him that these things happened at elections and there was no need for him to report it. I accept, on the applicant's own oral evidence that nothing adverse happened to him from the 2007 election until the lead up to 2012 election. 34. I accept that in the lead up to the 2012 election BJP members would attempt to dissuade his regular customers and tell them not to buy from his business. I accept that the applicant's business suffered somewhat as a result and the applicant decided to come to Australia. 35. I have considered carefully the applicant's claims of past harm. I do not accept that the verbal harassment he experienced amounted to either serious harm or significant harm. I do not consider the first incident when the applicant was slapped on 2-3 occasions to constitute either serious harm (such as significant physical harassment or significant physical treatment under s.91R(2) or more generally otherwise) as I note the applicant did not seek any medical treatment. Similarly, I do not accept that it constituted significant harm under s.36(2A) and s.5(1) of the Act in that it did not involve the arbitrary deprivation of life or the imposition of the death penalty. Nor did it constitute torture as an act in which severe pain or suffering (physical or mental) was inflicted. Nor did it constitute cruel or inhuman treatment or punishment in which severe pain or suffering (physical or mental) was inflicted or pain or suffering (physical or mental) which could reasonably be regarded as cruel or inhuman in nature. Nor did it constitute degrading treatment or punishment which caused or was intended to cause extreme humiliation which is unreasonable. 36. I accept that the second incident where the applicant was involved in a tussle to constitute both serious harm and significant harm given the extent of the injury he suffered but I find this to be a "one-off" incident which was not repeated. I have taken into account that this incident happened in 2007 and the applicant was able to reside in the area and operate his business for many years after this election without incident. On the applicant's own evidence, his problems with the BJP only occurred in the lead up to and during elections and nothing occurred to him in the years in between. 37. I accept that the applicant's business suffered a shop lifting incident at the hands of BJP members in 2007 and that BJP members in 2007 and 2012 took steps to dissuade his regular customers from buying from him. I accept that be suffered a level of verbal abuse from BJP members. However, I do not accept that such treatment amounted to serious harm (such as constituting a denial of his capacity to earn a livelihood of any kind, where the denial threatens his capacity to subsist under s.91R(2) or more generally). I do not accept that such treatment amounted to significant harm in that such conduct did not involve the arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment within their definitions contained in s.5(1). I accept that his business was affected but the applicant was able to operate the business unimpeded for many years and was able to afford to travel to Australia with his wife. Looking towards the reasonable foreseeable future, I accept that the applicant may suffer such treatment during election times in the future if he continues his political activities with Congress and involvement as a party official, but I do not accept that it will result in either serious harm or significant harm. 6 The RRT referred to the second applicant's position as follows: 42. No claims were advanced that the applicant's wife was targeted or harmed in the past (indeed she lodged a Part D form applying as a member of the family unit and not having her own claims) and given my findings regarding her husband, I find that she too does not, even when considered cumulatively, face a real chance of persecution for reasons of imputed political opinion, her membership of a particular social group (consisting of his family) or any other Convention or non-Convention related ground from BJ P political opponents, the state or anyone else. Proceedings in the Federal Circuit Court of Australia 7 After their claims were rejected by the RRT, on 20 November 2013 the applicants commenced proceedings in the Federal Circuit Court of Australia ("the FCCA") for judicial review of the decision of the RRT. Success depended on showing jurisdictional error by the RRT. Two jurisdictional errors were suggested: that the RRT departed from statutory requirements; and that the RRT failed to investigate some of the first applicant's claims. Each suggestion was rejected by the FCCA. 8 In oral submissions before the FCCA, in support of the first argument the first applicant relied on suggested difficulties in a videolink used by the RRT to conduct its hearing from Melbourne while the applicants remained in Griffith, New South Wales. The FCCA found that no such difficulties had been established, and that no difficulties of the kind suggested might have frustrated a proper hearing by the RRT. 9 The second suggested jurisdictional error was identified in oral submissions as a failure to consider particular documents. The FCCA pointed out that the documents were referred to by the RRT, and that the RRT accepted the first applicant's account of things said to be supported by reference to the documents. 10 As no jurisdictional error was identified by the applicants, the FCCA rejected their application for judicial review, with costs assessed at $3,326 (SZTRB & Anor v Minister for Immigration & Anor [2014] FCCA 1717 – 1 August 2014). 11 The judgment of the FCCA was an interlocutory one (and therefore not "final" in a legal sense) under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) and in order to challenge it the applicants would require leave to appeal from this Court. Proceedings in this Court 12 On 12 August 2014, the applicants filed an application for leave to appeal. 13 On 13 August 2014, a Deputy District Registrar made procedural directions to prepare the application for leave to appeal for a hearing, including directions for written submissions. In due course, the application for leave to appeal was listed for hearing on 10 November 2014. The first respondent filed written submissions in accordance with the procedural directions, but the applicants did not. 14 Instead, on 5 November 2014 the first applicant sent a letter to the New South Wales Registry reporting that he was unwell with back pain and asking for the hearing to be "re-scheduled". In deference to this request the hearing was adjourned and subsequently listed for hearing on 3 March 2015. The applicants were advised. On 19 February 2015, the first applicant again requested that the hearing be "re-scheduled" due to his ongoing back pain. No written submissions had been filed by the applicants, pursuant to further directions to which I will refer shortly. 15 On 27 February 2015, I made the following orders: 1. The hearing listed for 3 March 2015 be vacated. 2. The applicants file written submissions as directed on 13 August 2014 by no later than 4 pm, 31 March 2015. 3. If written submissions are filed in accordance with Order 2, the proceedings be listed for hearing in the Full Court and Appellate Sitting period commencing 4 May 2015. 4. If the applicants do not comply with Order 2, the application for leave to appeal be dealt with on the papers. 16 The applicants were advised of those orders. 17 There is one clerical mistake in the orders which should be addressed, which will not affect the outcome of the present application. 18 When the hearing scheduled for 10 November 2014 was deferred, a Deputy District Registrar made further procedural directions to replace and update the directions earlier made on 13 August 2014. The first of the new directions, which were made on 7 November 2014, revoked the directions made earlier but a further direction, in identical terms, was then made for the applicants to file written submissions before the rescheduled hearing. That was overlooked by me when I made the orders on 27 February 2015. I should have referred, in Order 2, to the directions made on 7 November 2014, rather than 13 August 2014. However, in my view, that clerical error could not explain or justify any failure by the applicants to comply with the substance of Order 2 by filing written submissions as earlier directed on two occasions. 19 No written submissions were filed. Accordingly, Order 4 applies. Should leave to appeal be granted? 20 It would be open to dismiss the application for leave to appeal simply upon the basis of the applicants' default but, in my view, the preferable course is first to consider whether there appears any basis at all upon which it might be open to conclude that leave to appeal should be granted. 21 Although interlocutory, the judgment of the FCCA was final in its practical consequences for the applicants. I take that into account. However, there is no reason to suppose that there is any prospect that the applicants might succeed in an appeal to this Court, if leave to appeal was granted. 22 Neither the FCCA, nor this Court, may deal with the merits of the applicants' claims for protections visas. They must show that the RRT made a jurisdictional error, in which case the merits of their applications would be considered again by the RRT. 23 The RRT accepted the substance of the first applicant's factual claims but did not accept that he had a well-founded fear of persecution in India. No jurisdictional error appears, in my view, on the face of the RRT decision. None was identified before the FCCA. 24 I am satisfied that an appeal would have no prospect of success and that leave to appeal should not be granted. 25 Leave to appeal will be refused for that reason. I would, in any event, have otherwise dismissed the application for leave to appeal in light of the applicant's failure to comply with orders and directions of the Court. Costs 26 The first respondent foreshadowed in written submissions that, in the event that the application for leave to appeal was dismissed, an order for costs in a specified sum would be sought (Federal Court of Australia Act 1976 (Cth), s 43(3)(d)). 27 Rule 40.43 of the Federal Court Rules 2011 (Cth) ("the Rules") provides for a short form bill of costs in migration appeals and related proceedings. Schedule 3 item 15 to the Rules specifies what amounts will be paid to a respondent in a case such as the present. Rule 40.44 states the procedure to be followed. 28 The provisions of rr 40.43, 40.44 and Sch 3 item 15 appear to be inconsistent in a number of respects. They are inconsistent about whether disbursements will be allowed in addition to other costs and confusing about what procedural matters are necessary as a precondition to an order or certificate of taxation. 29 Nevertheless, it appears to me to be sufficiently plain that Sch 3 item 15 indicates (sufficiently for present purposes) that the first respondent may claim (but is limited to) an amount of $1756. In those circumstances, no consideration of potential unfairness to the applicants need deflect me from making an order for costs in that amount, if that was otherwise appropriate. 30 However, as matters have developed, the first respondent has had no opportunity to make an application for costs in any particular amount, and may not be taken as agreeing with the figure mentioned in the absence of such an opportunity. The applicants also would be entitled to a proper opportunity to deal with any issue of costs in its own right if anything but the usual approach was sought of costs following the result of the application. I do not propose to list the matter to deal only with a separate issue of that kind, particularly in light of the orders made on 27 February 2015. 31 In the circumstances, the only order I will make about costs is that the applicants must pay the costs of the first respondent, as taxed if not agreed. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan. Associate: Dated: 13 April 2015