SZQUQ v Minister for Home Affairs
[2019] FCA 1980
•21 November 2019
FEDERAL COURT OF AUSTRALIA
SZQUQ v Minister for Home Affairs [2019] FCA 1980
Appeal from: SZQUQ v Minister for Immigration & Anor [2019] FCCA 1363 File number(s): NSD 837 of 2019 Judge(s): JAGOT J Date of judgment: 21 November 2019 Catchwords: MIGRATION – appeal from Federal Circuit Court of Australia dismissing application for judicial review – apprehended bias – reliance on third party information – jurisdictional error – appeal dismissed Legislation: Migration Act 1958 (Cth) s 499 Date of hearing: 21 November 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 17 Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Mr J Lambe of HWL Ebsworth ORDERS
NSD 837 of 2019 BETWEEN: SZQUQ
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
JAGOT J
DATE OF ORDER:
21 NOVEMBER 2019
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of the appeal as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
JAGOT J:
When this appeal came before me this morning and the appellant was called upon to make submissions in support of his appeal, the appellant indicated that he was suffering from financial hardship and was not in a position to hire a lawyer in order to make his case and was of the view that if he had proper legal assistance, the matter would have had a different outcome. He said that he was trying to get financial assistance now from family and friends, so he needed more time to put his case with legal assistance.
The Minister, correctly in my view, took this to be an application to adjourn the hearing of the appeal in in order that the appellant might get legal assistance. The Minister opposed the adjournment, noting that the appeal had been on foot since May 2019, that there was no evidence of any attempts by the appellant to get legal assistance, and that in any event, a lack of legal representation was not a persuasive ground to seek an adjournment of the hearing of the appeal.
I accept the Minister’s submissions.
While it is difficult for a person to appear on their own behalf in appeals such as these, the problem in the present case is that, as the Minister said, the appeal has been on foot since May 2019. There is no evidence of any attempts that the appellant has made to get legal assistance and the evidence does not suggest that he will be successful in obtaining the financial assistance he needs in order to obtain legal representation. Accordingly, I am left with mere speculation that further time, if it given, will in any event provide the appellant with the legal assistance which he says he wants. In these circumstances, I am not prepared to adjourn the hearing of the appeal.
The appeal is against a decision of the Federal Circuit Court of Australia in which the Federal Circuit Court dismissed the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal: SZQUQ v Minister for Immigration & Anor [2019] FCCA 1363. The Administrative Appeals Tribunal affirmed the decision of a delegate of the Minister not to grant the appellant a protection visa.
In its reasons for the decision, the Tribunal comprehensively rejected the credibility of the appellant’s claims. It said the appellant had “numerous and significant credibility issues” at [30] and otherwise proceeded to reject all of the appellant’s claims, saying that, cumulatively, it found the appellant to have been “an untruthful witness in relation to all of his substantive claims” at [60]. Also at [60], the Tribunal said:
The cumulative impact of the difficulties are very damaging to the applicant’s overall credibility and cause the tribunal to not believe any of his key claims.
The appellant lodged an application with the Federal Circuit Court for review of the Tribunal’s decision. This application identified three grounds. The first related to alleged apprehended bias on the part of the Tribunal. The second complained that the Tribunal had relied on third-party information that was not independently verified to discredit the appellant’s claims. This was said to suggest that the Tribunal had pre-judged the matter. The third ground was that the Tribunal had not given proper weight to the documentary evidence tendered before it, with the consequence that the Tribunal had made erroneous findings and mistaken conclusions.
In its reasons for judgment, SZQUQ v Minister for Immigration & Anor [2019] FCCA 1363, the Federal Circuit Court rejected the appellant’s grounds for appeal and dismissed the application for review.
As to ground 1, the Federal Circuit Court said at [26] that there was not a skerrick of evidence that the Tribunal member was actually biased or had pre-judged or pre-decided the review application.
As to ground 2, the Federal Circuit Court said at [28] that there was nothing in the Tribunal’s reliance on DFAT country information that could be described as “third-party” information, which in any way suggested or evidenced any pre-judgement or form of bias. Insofar as ground 2 might have related to a letter from the BNP, the Federal Circuit Court said that, once again, nothing in this respect had a tendency to suggest any pre-judgment or bias on the part of the Tribunal. Based on the evidence, the Tribunal had found the BNP letter to be false and the signature on it to be forged: at [29].
As to ground 3, the Federal Circuit Court said that, in effect, it invited impermissible merits review and that the weight the Tribunal gives to matters is a matter for the determination of the Tribunal: at [32].
The notice of appeal filed with this Court also contains three grounds of appeal, albeit with additional particulars. The first ground again relates to apprehended bias of the Tribunal. The second ground again relates to the Tribunal’s reliance on third-party information which was not independently verified so as to suggest that the Tribunal pre-judged the matter and had apprehended bias. The third ground again suggests that the Tribunal did not give proper weight to the documentary evidence tendered before it and thereby made erroneous findings and a mistaken conclusion.
The appellant did not make any submissions, either written or oral, in support of these grounds of appeal.
None of the grounds of appeal can be sustained. The grounds are effectively the same as were considered by the Federal Circuit Court. I am unable to discern any error in the Federal Circuit Court’s decision about the application for review. I otherwise accept the Minister’s submissions that insofar as the grounds of appeal in fact assert actual bias, there is a heavy onus on the appellant and there is simply no evidence to support the assertion. Nor does anything in the material support the allegation of apprehended bias. That disposes of ground 1 of the appeal.
Ground 2, insofar as it relies on actual of apprehended bias, is also unfounded for the same reasons. Otherwise, the Tribunal was required to consider the relevant country information by s 499 of the Migration Act 1958 (Cth) and Ministerial Direction No 56. That disposes of ground 2 of the appeal.
As to ground 3, as the Federal Circuit Court found, what is proposed is impermissible merits review.
Accordingly, on the material before me, I am unable to discern any jurisdictional error in the Tribunal’s reasons. The appeal should be dismissed.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot. Associate:
Dated: 21 November 2019
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