SZRHR v Minister for Immigration
[2018] FCCA 1104
•9 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZRHR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1104 |
| Catchwords: MIGRATION – Application for review of Administrative Appeals Tribunal decision – general ground of review that alleges jurisdictional error on the part of the Tribunal – s.438 certificate – no jurisdictional error – application dismissed. |
| Legislation: Evidence Act 1995 (Cth), s.55 Migration Act 1958 (Cth), ss.417, 424A, 425, 438, 476 Federal Circuit Court Rules 2001 (Cth), rr.1.06, 44.12, 44.13 |
| Cases cited: SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 |
| Applicant: | SZRHR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1563 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 1 November 2017 |
| Date of Last Submission: | 15 November 2017 |
| Delivered at: | Sydney |
| Delivered on: | 9 May 2018 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Ms G Doyle of Sparke Helmore Lawyers |
ORDERS
The application made on 21 June 2016 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicant pay the first respondent’s costs set in the amount of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1563 of 2016
| SZRHR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 21 June 2016, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 3 June 2016 which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a protection (Class XA) visa to the applicant.
In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”), and the affidavit of Gabrielle Doyle, solicitor, made on 1 November 2017, annexing a copy of a certificate issued pursuant to s.438 of the Act and a relevant exhibit.
Before the Court
On 11 August 2016 various orders were made, by consent, by a Registrar of the Court for the progress of the matter. These included giving the applicant the opportunity to file any amended application and any further evidence by way of affidavit. The applicant filed no further documents in this regard. The orders also provided that the matter be set down for a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules). The parties were also given the opportunity to file written submissions before the hearing. The applicant filed no written submissions. The Minister filed written submissions on 25 October 2017 (“the Minister’s first written submissions”).
Following the hearing, the parties were given the opportunity to file further written submissions (see further below). The Minister filed written submissions on 15 November 2017 (“the Minister’s second written submissions”). The applicant filed no written submissions.
Background
The applicant is a citizen of Pakistan (CB 100). He arrived in Australia on 27 October 2010 on a visitor visa (CB 36.7). On 17 January 2011, he lodged his first application for a protection visa (CB 1 to CB 30). This application was refused by the delegate on 6 April 2011 (CB 33 to CB 46). The applicant then applied to the Refugee Review Tribunal (“the RRT”) (as it then was) for review of the delegate’s decision. The RRT affirmed the delegate’s decision on 1 March 2012 (CB 47 to CB 65).
After the RRT affirmed the delegate’s decision to refuse his first protection visa application, the applicant made two requests for Ministerial intervention, both of which were unsuccessful (see CB 66 to CB 87 and CB 137 to CB 138).
Following the decision in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235 (“SZGIZ”), the applicant applied for a protection visa a second time on 11 February 2014 (CB 88 to CB 136).
The applicant claimed to fear harm from the Taliban. In a statement submitted with his application, the applicant claimed to have been tortured and imprisoned by the Taliban. He claimed that the Taliban were aware of his marriage to a Christian woman in Australia, and he would therefore face harm on return to Pakistan on this basis (CB 146.6).
The applicant attended an interview with the delegate on 5 May 2014 (CB 155.8). His claims before the delegate are summarised in the delegate’s decision record (CB 155.8 to CB 157). In short, before the delegate, the applicant claimed to have attended sermons organised by the Taliban and its affiliate groups in 2009. However, he ceased to follow their ideology, and was kidnapped and taken to a Taliban training camp on two occasions as a result.
The delegate refused the applicant’s application for a protection visa on 28 May 2014 (CB 147 to CB 167). The applicant applied for review to the Tribunal on 19 June 2014 (CB 168 to CB 169).
The applicant attended a hearing before the Tribunal on 1 December 2015 (CB 204 to CB 206). He was assisted by an interpreter in the Urdu language. Prior to the hearing, on 19 November 2015, the applicant’s representatives provided written submissions to the Tribunal on behalf of the applicant in which they set out his claims for protection (CB 194 to CB 201).
On 2 December 2015 the Tribunal, by letter sent by email to the applicant’s representative, invited the applicant to comment on, or respond to, certain information (CB 214 to CB 218). The applicant’s representative sent an email to the Tribunal on 17 December 2015, stating that despite “repeated attempts”, they had been unable to obtain obstructions from the applicant (CB 219). Thus, no response to the Tribunal’s letter dated 2 December 2015 was received by the Tribunal.
The Tribunal affirmed the delegate’s decision on 3 June 2016 (CB 223 to CB 238). In addition to the applicant’s claims before the Tribunal, the Tribunal had regard to the claims made by the applicant in his first protection visa application ([11] at CB 225), his claims before the delegate in the current application for a protection visa ([7] at CB 224 to CB 225 to [10] at CB 225), and his statement made to the Minister’s department with his request for Ministerial intervention ([12] at CB 225 to CB 226).
The Tribunal observed that there were “a number of significant differences, inconsistencies and contradictions” in the applicant’s evidence of his claims, given throughout the process of his first and second applications for protection visas, and it ultimately came to doubt the applicant’s credibility ([49] at CB 234).
The Tribunal found that the applicant gave significantly differing descriptions of his attendance at, and escape from, a Taliban training camp ([51] at CB 234 to [53] at CB 235). This included details such as whether the applicant first attended the training camp voluntarily or by force, the number of times attending and the duration of time spent at the training camp, the friends who accompanied him to the camp, and the events that occurred when the applicant went to Islamabad after his escape from the camp ([52] at CB 234 to CB 235). The applicant was invited to comment on these inconsistencies by the Tribunal’s letter dated 2 December 2015 (CB 216 to CB 218), however, as mentioned above, he did not do so.
Given its findings on credibility, the Tribunal did not accept that the applicant attended a Taliban training camp, or that he was tortured by the Taliban. Further, it did not accept that the Taliban had any interest in the applicant for any reason ([53] at CB 235). The Tribunal also noted the absence of any other evidence to corroborate the applicant’s claims and the fact that the applicant visited the United Kingdom in January 2010, after which he returned to Pakistan, before coming to Australia in October 2010 ([54] - [55] at CB 235).
The Tribunal also considered the applicant’s claim in relation to his fear of harm from general terrorist attacks in Pakistan ([56] at CB 235 to CB 236 to [57] at CB 236). It accepted that Pakistan continues to face security threats from terrorist organisations, but found that the applicant did not come within the groups who are the usual targets of the terrorist attacks, and that the real risk of harm from generalised violence is one faced by the population in Pakistan in general and not by the applicant personally ([57] at CB 236).
The Tribunal considered the claim made by the applicant in his second protection visa application regarding his marriage to a Christian woman in Australia. It noted that at the Tribunal hearing, the applicant resiled from the claim that he feared harm from the Taliban due to his marriage. The Tribunal was therefore not satisfied he would suffer significant harm on this basis ([61] at CB 236 to CB 237). It considered the applicant’s concern that he would be separated from his wife if he returned to Pakistan, but it found that this did not amount to significant harm ([61] at CB 236 to CB 237).
The Application to the Court
The application contains one ground, which is in the following terms:
“The decision of Tribunal involves jurisdictional error”
As set out above, this matter was set down for a show cause hearing pursuant to r.44.12 of the FCC Rules.
The issue for the Court is whether the ground of the application raises a legally arguable case for the relief that the applicant seeks. Although not specifically noted on his application, I accept that the relief the applicant seeks is an order that the Tribunal’s decision be quashed, and that his case be returned to the Tribunal for reconsideration according to the law.
In the circumstances, if the Court cannot be satisfied that an arguable case is raised against the Minister, the application will be dismissed. Given the summary nature of any such dismissal, the application should only be struck out where there is no real question to be tried, where the claims are clearly untenable and cannot succeed (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 especially at [8] – [9], Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708 at [3] – [6] and Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677 at [1]), the claims are groundless (Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62), where there is a high degree of certainty about the outcome (Agar v Hyde [2000] HCA 41; (2001) 201 CLR 552; (2001) 173 ALR 665; (2001) 74 ALJR 219), or it is a hopeless case that would fail if it were to go to a final hearing (Xie v The Immigration Department [1999] FCA 365).
Before the Court, the applicant appeared in person. He was assisted by an interpreter in the Urdu language. The Minister was represented by a solicitor.
The Minister sought to rely on the affidavit of Ms Doyle which annexed a copy of a certificate said to have been issued pursuant to s.438 of the Act (“the s.438 certificate”). The Minister also sought to tender a number of documents (as an exhibit to the affidavit) to which the s.438 certificate was said to relate.
It appears that the Minister’s solicitors only became aware of the existence of the s.438 certificate, and the documents relevant to it, on the morning of the hearing.
For this reason, I gave the parties the opportunity to file written submissions in relation to the issue of the s.438 certificate. The Minister was to file written submissions first, so as to give the applicant the opportunity to understand the issue raised by the s.438 certificate. I then explained the relevant process and proposed action to the applicant.
As mentioned above, the Minister filed his second written submissions on 15 November 2017. The applicant filed no written submissions.
At the hearing, the applicant submitted that he feared for his life if he were to return to Pakistan. He also stated that he had been sexually abused in Pakistan.
However, the applicant also stated that this claim was not raised before the delegate or the Tribunal. It was being raised for the first time before the Court.
As I explained to the applicant, this Court has no power to grant him a protection visa. The Court’s role was “limited” to the question of whether, in making its decision on his claims to fear harm, the Tribunal made a “legal mistake” (jurisdictional error).
I also explained to the applicant that given that this was a show cause hearing pursuant to Part 44 of the FCC Rules, the issue was whether some arguable case of legal error arose from the grounds of his application. Any claims to protection raised by the applicant subsequent to the Tribunal’s decision, cannot raise any such arguable case before the Court.
The applicant also submitted that he feared harm from the Taliban if he were to return to Pakistan because the Taliban were located “very close” to where he used to live in Pakistan.
This claim was a part of the applicant’s claim before the Tribunal. That is, he said that he went to a Taliban training camp, at a place “outside” his village, after the Taliban had come to his village.
As set out above, the Tribunal found significant discrepancies between the applicant’s various accounts of what had occurred in Pakistan. The Tribunal concluded ([53] at CB 235):
“A cumulative consideration of all of these inconsistencies and contradictions about how many times he attended the Taliban camp, how he went there, with whom he travelled, whether or not he was taken by force, how he escaped and when he went to Islamabad and what happened to him there, leads the Tribunal to have doubts about the applicant’s credibility and on this basis it rejects his claims…”
The Tribunal’s conclusion and the findings that informed it, were all reasonably open to it on the material before it. The Tribunal gave cogent reasons for its disbelief of the applicant’s claims, probative of the material before it.
The applicant’s oral submissions really seek impermissible merits review. No arguable case arose from what the applicant stated before the Court.
Despite the opportunity to amend his application, the sole ground of the applicant’s application to the Court remains absent any particulars. In this circumstance, the mere unexplained assertion of legal error cannot be said to raise an arguable case for the relief sought.
Rule 44.13 of the FCC Rules confines an applicant before the Court to the grounds raised in the application. I did, however, consider whether to waive this rule pursuant to r.1.06 of the FCC Rules. However, there was nothing in the evidence before the Court to call for this.
First, there was no error in the Tribunal considering only the complementary protection criterion (Minister for Immigration and Border v SZVCH [2016] FCAFC 127; (2016) 244 FCR 366). The applicant had already had his claims to protection under the Refugees Convention considered by an earlier constituted Tribunal.
The Tribunal’s findings in this regard, were all reasonably open to it on what was before it.
Second, the applicant also attended a hearing before the Tribunal pursuant to s.425 of the Act. There is nothing to indicate that the hearing was other than a meaningful opportunity for the applicant to give his evidence. Further, the Tribunal, on the evidence before the Court, complied with s.424A(1) of the Act. I note that following the hearing, the Tribunal sent a letter sent to the applicant (through his representative) dated 2 December 2015, which gave the applicant the opportunity to comment on, or respond to, certain information. As mentioned above, the applicant’s representative was unable to obtain instructions from the applicant and no response was received by the Tribunal (and see [31] at CB 229 to CB 230 to [33] at CB 230).
In essence, the applicant gave three broad reasons as to why he feared harm on return to Pakistan. The Tribunal dealt with all of them. The Tribunal’s disbelief of the applicant’s claims was, in the circumstances, within jurisdiction.
Third, I did also consider whether the matter of the s.438 certificate gave rise to any arguable case for the relief sought.
The affidavit of Ms Doyle, annexing a copy of the s.438 certificate together with the relevant exhibit (produced to the Court in a sealed envelope as per the Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305 (“Singh”) at [67]), were all admitted into evidence pursuant to s.55 of the Evidence Act 1995 (Cth) (Minister for Immigration and Border Protection vCQZ15 [2017] FCAFC 194 (“CQZ15”)at [62] – [65], Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197 (“BJN16”) at [62] – [69] and BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198 (“BEG15”) at [30]).
Although not raised by the applicant’s ground, I considered whether there was any arguable case that the applicant was denied procedural fairness by the Tribunal in relation to the s.438 certificate.
The Minister’s second written submissions refer to MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 155 ALD 98 (“MZAFZ”) and Singh. However, the current circumstances are distinguishable from what was before the Courts in those cases. There the Courts drew a reasonable inference on what was before them that the Tribunal in each case, had “acted on” the relevant certificates, and the failure to put the applicants on notice of the existence of the certificates, resulted in a failure of procedural fairness.
There is nothing in the evidence before the Court to indicate that the Tribunal told the applicant about the existence of the s.483 certificate, or that it invited him to comment on it.
As was made clear in BEG15 at [30]:
“In Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197, a decision published today, the Full Court, as presently constituted, reviewed MZAFZ and Singh and other related authorities. Having done so we rejected submissions that these authorities supported rigid and unqualified propositions of the kind advanced by BEG15 on this appeal. In particular we found nothing to support the view that it was always a jurisdictional error for the Tribunal to act upon an invalid s 438 certificate and that, in doing so, the Tribunal would invariably deny procedural fairness to an applicant. We concluded (at [62]) that:
It may be accepted that the non-disclosure by the Tribunal of the existence of a certificate, given under s 438 of the Act, may give rise to a denial of procedural fairness. It does not follow that this will always be the case. It will be necessary, in each case, for all the circumstances and the consequences for the applicant of the omission to be examined.
We also said (at [69]) that:
We do not consider that the decisions in MZAFZ and Singh compel the conclusion that material contained in documents covered by s 438 certificates can never be relevant in the course of judicial review proceedings in which the Tribunal has made a decision without disclosing to an applicant that the Secretary has issued a certificate and that the documents identified in the certificate had been provided to it.
We accepted that documents covered by s 438 certificates might be relevant in determining whether or not an applicant had received procedural fairness before the Tribunal and as to the exercise of the Court’s discretion to grant relief. This was so whether or not the certificate was invalid.”
On this basis, I accept the Minister’s submissions that no arguable case arises simply because the Tribunal did not disclose the existence of the s.438 certificate, or the documents it covered, to the applicant.
The documents which were the subject of the s.438 certificate are documents relevant to a consideration of a request made by the applicant for Ministerial intervention pursuant to s.417 of the Act, and what appears to be a copy of the departmental record (“screenshot”) relevant to the applicant.
I agree with the Minister that there is nothing in these documents from which an indication, let alone a reasonable inference, may be drawn, that this material was relevant to the review conducted by the Tribunal, or that the Tribunal “acted on” this material (MZAFZ at [40] and see [7] of the Minister’s second written submissions).
Neither the author of the documents covered by the s.438 certificate or the “screenshot”, expresses any view as to the credibility of the applicant’s claims to protection, nor the prospect of success were the applicant to have made another application for a protection visa (following SZGIZ).
The absence of any reference to the documents in the Tribunal’s decision, and the actual contents of the documents covered by the s.438 certificate, provide the basis to reasonably infer that the Tribunal did not consider the documents to be relevant to its consideration. In the circumstances, I find that there is no suggestion that the Tribunal acted on the documents in the manner identified in MZAFZ.
The documents covered by the s.438 certificate were departmental records. The failure to disclose the s.438 certificate or the documents to the applicant do not, in the circumstances, provide any basis to say that an arguable case for a denial of procedural fairness arises, or that any practical injustice occurred in the circumstances (AVO15 v Minister for Immigration and Border Protection [2017] FCA 566 at [91] and BEG15 at [33] and see [8] of the Minister’s second written submissions).
Conclusion
In all, there is no arguable case arising for the relief that the applicant seeks. It is appropriate to dismiss the application pursuant to r.44.12(1)(a) of the FCC Rules. I will make the appropriate order.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 9 May 2018
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