SZONG v Minister for Immigration

[2017] FCCA 3163

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZONG v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3163

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for judicial review of decision of Administrative Appeals Tribunal affirming decision of a Delegate of the Minister for Immigration not to grant to him a protection visa – application to this Court merely asserts unparticularized and unspecified jurisdictional error despite applicant having been given opportunities to be more specific – Minister seeks dismissal of application under Rule 44.12 of the Federal Circuit Court Rules2001 (Cth) – at hearing no more specific oral grounds asserted by applicant – no readily discernible or identifiable jurisdictional errors affecting decision of Tribunal – application in this Court dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 438

Federal Circuit Court Rules2001 (Cth)

Cases cited:

Agar v Hyde (2000) 201 CLR 552
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Fancourt v Mercantile Credits (1983) 48 ALR 1
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Minister for Immigration and Border Protection v SZVCH (2016) 244 FCR 366
Spencer v Commonwealth (2010) 241 CLR 118
SZGIZ v Minister for Immigration (2013) 212 FCR 235

Applicant: SZONG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2540 of 2016

Judgment of: Judge Dowdy

Hearing date: 14 December 2017

Delivered at: Sydney

Delivered on: 14 December 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Ms A Lucchese

Solicitors for the Respondents: Sparke Helmore

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 20 September 2016 is dismissed pursuant to Rule 44.12 of the Federal Circuit Court Rules 2011 (Cth).

2. The Applicant is to pay the First Respondent’s costs of the proceeding in the sum of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2540 of 2016

SZONG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

1. I am considering an application by the First Respondent (Minister) under Rule 44.12 of the Federal Circuit Court Rules 2011 (Cth) (the Rules) for dismissal of the Application filed in this Court on 20 September 2016 in the following circumstances.

2. The Applicant in this matter is a male citizen of Pakistan aged 55 years, having been born on 24 August 1962.  By his Application filed in this Court he seeks impliedly to quash and to have redetermined a decision of the Administrative Appeals Tribunal dated 22 August 2016 which affirmed a decision of the Delegate of the Minister, dated 14 November 2014, refusing to grant to him a Protection (Class XA) (Subclass 866) visa (Protection visa). 

3. The Delegate considered the Applicant’s claims to protection on both the Refugee’s Convention criterion and the complementary protection criterion. Although the Applicant had previously made an application for a Protection visa on 27 August 2009, which had been refused on 25 November 2009, the Applicant was able to make a further application for a Protection visa based on the complementary protection criterion under s.36(2)(aa) of the Migration Act 1958 (Cth) after its introduction: see SZGIZ v Minister for Immigration (2013) 212 FCR 235.

4. The Tribunal in its decision under review correctly considered the Applicant’s second Protection visa application only under the complementary protection criterion: see Minister for Immigration and Border Protection v SZVCH (2016) 244 FCR 366. I do note that at [41] of the Decision Record of the Tribunal there is a reference to the Applicant not satisfying the Refugees Convention criterion. This presumably results from cutting and pasting from a standard template and in my view has no bearing on this proceeding.

5. The Application filed in this Court merely contained as its asserted Ground:

   THE DECISION OF TRIBUNAL INVOLVES JURISDICTIONAL ERROR 

   There were no particulars given.  That was the only Ground.  The Applicant at the time of filing his Application also filed an affidavit sworn or affirmed on 20 September 2016, which also merely stated:

   THE DECISION OF TRIBUNAL INVOLVES JURISDICTIONAL ERROR 

6. The first return date of the Application in this Court was on 21 October 2016, when the Applicant appeared in person, with the aid of an interpreter, and Ms Alexander appeared for the Minister.  Consent orders were made for the matter to be prepared for hearing, and order 2 was:

   2. The applicant file and serve any amended application giving complete particulars of each ground of review relied upon by 9 December 2016. 

7. I record that on that occasion Ms Alexander informed me, when handing up the consent orders, that the Applicant had informed her that he was seeking legal advice.  The matter was then stood over to a callover on 10 November 2017 to be given a final date for hearing. 

8. On 10 November 2017 the Applicant appeared in person with the aid of an interpreter and Ms Fernandez appeared for the Minister.

9. On that occasion I raised the issue that I did not consider that there were any proper or meaningful grounds appearing in the Application.  Ms Fernandez informed me that she was seeking for the matter to be listed for a show cause hearing rather than a final hearing, as long as the Applicant was afforded a further opportunity in which to file an Amended Application. This was notwithstanding that he had been afforded that opportunity already long before by the consent orders of 21 October 2016.  I explained then to the Applicant that his Application did not have any proper grounds and merely alleged jurisdictional error and gave no particulars.  I told him that this was unsatisfactory and I enquired of him whether he would be prepared to tell the Court that he would file an Amended Application if I gave him 14 more days to do so.  To that the Applicant replied merely that he needed more time to seek legal advice. 

10. I reiterated that I would give him 14 days.  He said that he had a financial hardship problem and that the lawyers were asking for too much money and that he had to organise money.  I said to him that I took his response as declining to put on an Amended Application, but he then responded that he would wish to put on an Amended Application. 

11. I asked him again whether he would do so within 14 days and he said he needed more time than 14 days.  In those circumstances, I said that I would simply set the matter down for a show cause hearing, which I did, for hearing today.  I then said to the Applicant the following:

    HIS HONOUR:   Can you explain this to the applicant.  The Minister is going to move, on that date, for immediate judgment against you.  Presumably, one of the reasons will be what I have just flagged to you, sir, that you don’t have any meaningful grounds to your application.  I have flagged the issue to you.  It’s a matter for you whether you put on any amended application.  I’m not going to direct you to do so but on that date and time, you should appear and the Minister’s application for a show cause hearing, as to why ..... your application should not be dismissed, will be heard.  Does he understand all that, Mr Interpreter?

    THE INTERPRETER:   Yes. 

12. Today the Applicant appears and no Amended Application has been filed. 

13. In this matter the Tribunal hearing took place on 18 August 2016, when the Applicant attended, together with his registered migration agent from the firm of solicitors then acting for him.  Prior to the Tribunal hearing those lawyers had submitted on behalf of the Applicant to the Tribunal an extensive written submission dated 11 August 2016.   

14. The Tribunal, in its Decision Record dated 22 August 2016 set out its consideration of the Applicant’s claims for protection and his fear of returning to Pakistan.  They were essentially his political affiliation with the PTI Party, social activities, his fears relating to his connection with the media industry, his extended stay in Australia and the general security position in Pakistan. The Decision Record of the Tribunal records that at the Tribunal hearing the Applicant withdrew his claim to fear harm based on his political affiliation with the PTI Party. 

15. Unfortunately for the Applicant the Tribunal did not believe him.  At [20] of its Decision Record the Tribunal said this:

    [20]For reasons set out below, the Tribunal is not satisfied that the applicant has given a truthful account of his reasons for seeking Australia’s protection.  The Tribunal found the applicant’s evidence during the hearing to be vague, unpersuasive and implausible and notes that the applicant had to be prompted about several claims that were identified in his Protection visa application. 

16. The Tribunal then goes on in subsequent paragraphs of its Decision Record to consider the claims of the Applicant and the various concerns that the Tribunal had about them.  For example, in  [21] inconsistencies were noted about his claims to fear harm from Islamic extremists in Pakistan because of his work as a journalist, his political affiliation with the PTI and his extended stay in Australia because he would be seen as a “western spy and infidel”.  They were his claims as made earlier.  But at the Tribunal hearing it was also recorded in [21] that the Applicant claimed that he would be targeted and harmed by extremists because of his “social activity”.  It was then that he told the Tribunal that there was  “not a life threat” because of his political affiliation with the PTI Party. 

17. At [22] of its Decision Record the Tribunal stated that the Applicant’s evidence as to why he left Pakistan was vague and imprecise.  At [37] – [39] the Tribunal considered country information as to the security position in Pakistan, including taking into account the latest DFAT country report.  It recorded at [37] that the Applicant had made clear to the Tribunal that he was not a high profile person but “an ordinary man”.

18. At [39] of its Decision Record the Tribunal concluded that the Applicant had not been truthful about the reasons he feared returning to Pakistan and recorded that it did not accept that the Applicant had ever been threatened with harm or death in Pakistan by anyone for any reason.

19. In the result the Tribunal was not satisfied that there was a real risk that the Applicant would suffer significant harm if he returned to Pakistan and concluded that the Applicant did not meet the complementary protection criterion and it affirmed the decision of the Delegate.

20. I have considered the Decision Record of the Tribunal with a consciousness of the seriousness of an application under r.44.12 of the Rules, which application is in form and nature that of a summary dismissal application.  I take into account and have regard to the principles and the high hurdle established by such well-known cases as Dey v Victorian Railways Commissioners (1949) 78 CLR 62; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; Fancourt v Mercantile Credits (1983) 48 ALR 1; Spencer v Commonwealth (2010) 241 CLR 118 and Agar v Hyde (2000) 201 CLR 552.

21. This morning I gave the Applicant an opportunity to tell me in oral submissions why he said the decision of the Tribunal was wrong. 

22. Obviously r.44.13(1) of the Rules (which relevantly confines an applicant to the grounds mentioned in his or her application) could not meaningfully apply in this case because there were no grounds in the Application. Accordingly I invited the Applicant in general terms to tell me why he considered that the decision of the Tribunal was “wrong” or “not lawfully made” and what were “his complaints about the Tribunal decision”. All he has been able to put to me amounts to merits complaint or seeks merits review of the Tribunal’s decision, rather than, as he needs to show, anything which would indicate that the Tribunal did not lawfully come to its decision to affirm the decision of the Delegate to refuse him a Protection visa. 

23. I am unable to discern any readily identifiable jurisdictional error in the Decision Record of the Tribunal.  It appears to me to constitute a comprehensive and reasoned consideration and evaluation of the Applicant’s claims to protection.  It does not seem to me to be affected by “legal unreasonableness” or “illogicality”, nor does it seem to lack any intelligible justification for its conclusions. 

24. I note that r.44.12 of the Rules comprehends two components.  First, the Minister has to establish that the Court ought to be satisfied that the Application has not raised an arguable case for the relief claimed. Second, I would then have a residuary discretion whether or not to dismiss the Application or to still allow the case to go to final hearing.

25. The simple fact of the matter is the Applicant has had ample time to properly prepare himself both for a final hearing and the present interlocutory hearing.  He was given the opportunity by the consent orders of 21 October 2016 to file and serve an Amended Application giving complete particulars of each ground of review relied upon.  He was also given the opportunity to file further evidence.  He did neither of those two things so that when the matter came back before me at the callover on 10 November 2017 his case had not advanced at all, despite the fact that on the face of it this is a most important case for the Applicant.

26. The Applicant has had the benefit in this Court of an interpreter because in his Application he asked for an interpreter.  However, in preparation for the hearing of the case I considered the whole of the Court Book and I pointed out to the Applicant at the commencement of the hearing that in his earlier Protection visa application of 5 August 2009 he represented that he could speak, read and write the Urdu and English languages and that he could speak and read but not write the Arabic language.

27. He also informed the Department that he had resided in England, actually at Glasgow, from November 2007 to April 2008.  And to a written enquiry sent by the Department to him dated 29 October 2009 he responded in a letter, on the face of it from himself in English, which was received by the Department on 4 or 5 November 2009 and which stated that he had stayed in the United Kingdom from November 2007 to April 2008 to attend a conference about journalism and after attending that conference he visited the United Kingdom to take advantage of the opportunity to look around that country.

28. The claim to speak, read and write the Urdu and English languages was made again by the Applicant in his second Protection visa application which was lodged on 26 September 2012 where he repeated that he could speak, read and write the Urdu and English languages and could speak and read the Arabic languages.  I put these issues to the Applicant this morning before the case commenced and his response was to the effect that he could only speak English “a little bit”.

29. I do not have to make a finding about all of this.  What is sufficient for me to say is that the Applicant is in no worse position in terms of formulating some sort of meaningful complaints about the decision of the Tribunal than hundreds of other Applicants who make application for a Protection visa who cannot speak, read or write the English language.  As I have said, the Applicant has had ample time to prepare his case.  Again this morning he has complained about legal costs and, in effect, sought further time to prepare his case.

30. Nevertheless, I find, in terms of r.44.12 of Rules, that I am not satisfied that the Application filed by the Applicant has raised an arguable case for the relief claimed, that is, to set aside the decision of the Tribunal.  Accordingly, my residuary discretion is enlivened.  I take into account the seriousness of a dismissal and the general principles relating to summary dismissal set out in the cases in the High Court to which I have referred.  I am of the view, as I have said, that the Applicant has been given a long period of time to properly identify any sort of complaint or grounds as to why the decision of the Tribunal suffers from jurisdictional error.

31. He has identified no such thing either in writing or orally and, in my discretion, I consider that I should make an order dismissing his Application. 

32. I finally note this point. The Minister as a model litigant has pointed out that in the Court Book there is a purported s.438 Certificate. Ms Lucchese, who appears for the Minister, concedes that the Certificate is invalid. It refers to various folios comprising internal working documents and the affairs of the Minister or the Minister’s Department in 2009 and thus prior to the second Protection visa Application under consideration. One of those documents is an internal working note about the Applicant’s claim in his original Protection visa application to have been in the United Kingdom for a period, which merely led to the letter of enquiry from the Department of the Minister of 29 October 2009 which asked for information about the Applicant’s residence in the United Kingdom.

33. The other documents the subject of the Certificate were an internal screenshot and documents related to booking translators.  None of them have the remotest bearing on the second Protection visa application made by the Applicant. They are not referred to in the Decision Record of the Tribunal in any way. They are completely conventional and banal working documents and the Certificate and the documents covered by it had no bearing and no relevance to the consideration by the Tribunal of the Applicant’s claims for protection which were the subject of the Tribunal’s Decision Record under review.

34. Nothing in relation to that s.438 Certificate or the documents for which it was made have caused or could have caused any practical injustice to the Applicant. I consider that there is no point or purpose in giving any further time to the Applicant. There has been nothing definite put to me as to when the Applicant would be in any sort of financial position to obtain the services of a lawyer, which he has claimed to have been seeking since the first return date some 13 months ago on 21 October 2016. The matter cannot be adjourned indefinitely in favour of the Applicant but his Application should be dealt with in a reasonably timely way and he has, as I have said, been given ample time.

35. Accordingly I propose to dismiss the Application filed in this Court on 20 September 2016 as sought by the Minister.

Postscript

1. After oral delivery of the above judgement during discussion about costs the Applicant stated “I can read and write English, but I’m not an legal expert, so I can hire someone”.

2. This confirms that the Applicant’s failure to formulate any kind of asserted jurisdictional error is at least not the result of any lack of proficiency in the English language.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date: 14 December 2017