SZRUM v Minister for Immigration, Multicultural Affairs and Citizenship

[2013] FCA 814

FEDERAL COURT OF AUSTRALIA

SZRUM v Minister for Immigration, Multicultural Affairs and Citizenship

[2013] FCA 814

Citation:		SZRUM v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 814
Appeal from:		SZRUM v Minister for Immigration & Anor [2013] FCCA 108
Parties:		SZRUM v MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 757 of 2013
Judge:		RARES J
Date of judgment:		2 August 2013
Legislation:		Federal Court Rules 2011 (Cth) Sch 3 Migration Act 1958 (Cth) ss 424A, 424AA
Cases cited:		SZRUM v Minister for Immigration & Anor [2013] FCCA 108 referred to Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 40 applied SZBEL v Minister for Immigration (2006) 228 CLR 152 applied
Date of hearing:	2 August 2013
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	26
Counsel for the Appellant:	The appellant appeared in person
Solicitor for the First Respondent:	Ms A Crittenden of Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 757 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN: SZRUM
Appellant

AND:

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE OF ORDER:	2 AUGUST 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs set at $4,600.

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 757 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN: SZRUM
Appellant

AND:

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE:	2 AUGUST 2013
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

1. This is an appeal from a decision of the Federal Circuit Court refusing the appellant constitutional relief in respect of a decision the Refugee Review Tribunal made on 17 August 2012 that affirmed the Minister’s delegate’s decision not to grant the appellant a protection visa:  SZRUM v Minister for Immigration & Anor [2013] FCCA 108.

   Background

2. The appellant is a citizen of Pakistan who applied for a protection visa on 9 June 2011.  The delegate refused to grant the visa on 8 March 2012.  The appellant then applied to the Tribunal for a review of that decision.  The application was unsuccessful.

3. Judge Emmett summarised, accurately, the substance of the applicant’s claims for protection as follows:

   “The Applicant provided a statement in support of his protection visa application in which he stated the following:

   (a)The Applicant ran a photography laboratory business with his uncle in Rwalpindi near the General Head Quarters (GHQ) of the Pakistan Army.

   (b)The Applicant’s business developed relationships with a number of government departments including top secret departments. The business developed and printed the departments’ secret photographs and maps as well as providing printing materials, and making photographic enlargements of defence equipment.

   (c)The Applicant attended the departments’ bases numerous times to take photographs of planes, tanks and weapons.

   (d)From 2009 until 2010, the Applicant visited Mahmand Agency Wizirastan to provide support and equipment including photography of sensitive areas.

   (e)In February 2009, the Applicant was detained by some men and taken to an unknown place where he was questioned about army operations against the Taliban and the identity of certain people.

   (f)The Applicant was then slapped, beaten and had a gun pointed at his head for over ten minutes. The Applicant was told by the men that he must take one of them with him the next time he was to attend Kamra or GHQ, otherwise he would be killed.

   (g)In April 2010, the Applicant received a call from a man who he suspected was one of the men who had kidnapped him in 2009. The caller told the Applicant that he had to take a man with him when he was to attend the Military Public Relations Agency office, a top secret building that day. The caller threatened the Applicant that he would be shot if he leaked this to anyone.

   (h)The Applicant was concerned and moved to Lahore where he stayed with a friend for a week.

   (i)In August 2010, the Applicant was kidnapped by some unknown people, taken away and beaten up and asked questions regarding safe houses. The Applicant was scared and provided the men information about the safe houses.

   (j)The Applicant became a person of interest for several groups which exposed his life to serious danger and persecution due to the nature of his business, association with armed forces, access to top secret photos and knowledge of sensitive information.

   (k)The Applicant left his business and his country for Australia to protect his life.

   (l)After the Applicant’s arrival in Australia, he was advised that unknown people have asked about his whereabouts which shows that he is still a person of interest and his life is in danger.”

4. The appellant attended an interview with the delegate.  The delegate did not accept that the appellant had access to classified information or was able to smuggle unauthorised persons into military buildings.  He found the appellant’s “entire story of his persecution to have been manufactured so as to give substance to his refugee claims” and, accordingly, rejected the application.

   The Tribunal’s decision

5. The Tribunal came to a very adverse view of the appellant’s credibility.  While accepting that his father and uncle had previously been officers in the Pakistan Air Force and that his family had familiarity with the military and intelligence agencies of that country, the Tribunal found that he had no real chance of being persecuted, simply by reason of his family background.  It accepted that the appellant was co-owner of two photography laboratories, one in Rawalpindi and one in Chakwal.  However, it rejected his claims about the links between, and usage by, the Pakistan intelligence agencies and the Rawalpindi branch.  The Tribunal observed that although the Rawalpindi branch was the older and larger of the two businesses, the appellant had provided it with no documentation in relation to that branch, while, on the other hand, providing some documentation and accounting evidence in relation to the Chakwal branch. 

6. The Tribunal found that the appellant had estimated to it that about half of the Rawalpindi branch’s work was done with official Pakistan government agencies, but found the appellant’s evidence about the nature and extent of the work done for those agencies to be vague and lacking in detail.  It found that the appellant had exaggerated the profile of his photography business and the extent of his dealings with the Pakistan agencies.  It found that, while it accepted that he occasionally may have provided equipment to agencies and had officials as private customers, it did not accept that he processed sensitive materials, had access to military or intelligence officers, sites or factories, or had any business or social dealings with them that anyone, including members of the general public or militants, took to be privileged and sensitive access.  The Tribunal found that the appellant’s account of his business activities in relation to Pakistan security agencies was unreliable and raised strong questions about the truth of his remaining claims and his credibility as a witness.

7. The Tribunal recorded, in its decision, that pursuant to the procedure in s 424AA of the Migration Act 1958 (Cth), it had put to the appellant the apparently significant discrepancy in his evidence to the delegate, namely, whether he had been kidnapped once or twice, as he claimed in his original statement and at the Tribunal hearing. The Tribunal noted that during the Departmental interview, the appellant had appeared to give inconsistent statements about the number of kidnappings, and when asked to clarify, had eventually stated he had been kidnapped just once, and that the person who had typed up his statement included with his application for a protection visa must have mistakenly mentioned the same incident twice. When the Tribunal put these matters to him during the course of his evidence, the appellant said that he was not satisfied with the interpreter at his interview with the delegate and feared that some confusion had arisen about what he had said. Nonetheless, the Tribunal found that he did state in that interview that there was only one kidnapping. But because the Tribunal had broader concerns about the conduct of the interview with the delegate and the quality of the interpretation during it, it did not draw any adverse conclusions based on that inconsistency.

8. Nonetheless, the Tribunal ultimately found that it did not accept that the appellant had any contact with the militants who were the alleged kidnappers at all.  It found that the appellant had fabricated his claims around his role as the owner of the photography laboratory and his alleged contacts with security agencies of Pakistan and rejected all his claims that arose in connection with that alleged conduct.  It found that he had departed Pakistan for reasons that were unrelated to his refugee claims, on one occasion to visit his brother in Australia.  The Tribunal did not accept that since his arrival here, militants, or anyone else, had been asking about him in a menacing way or harassing his family in Pakistan.  The Tribunal rejected his evidence of any relationship with the intelligence agencies and, accordingly, affirmed the decision of the delegate, at the same time finding that Australia owed no complementary protection obligations to him.

   The decision below

9. Her Honour dealt thoroughly which each of the appellant’s grounds put below for reviewing the Tribunal’s decision, and rejected them.  The first ground he pressed before her Honour was that the Tribunal had made a jurisdictional error on the basis of its adverse credibility findings, had failed to inform him that his claim would be rejected for lacking details of information about the sensitive security information he claimed to have been privy to, and that the Tribunal wrongly rejected his claims.

10. As her Honour noted, it was a matter for the appellant to satisfy the Tribunal that he met the criteria for a protection visa.  I agree with her Honour that a fair reading of the Tribunal’s decision record made clear that it had explored his claims with him at a hearing, put to the appellant its concerns about various aspects of his evidence, including his evidence about access to sensitive information, and that he had commented on those matters to the Tribunal.  The Tribunal specifically identified the concerns it had with the appellant’s evidence and gave detailed reasons why it rejected the substance of his claims.  Those matters were open to the Tribunal.  Credibility-based findings are a matter par excellence for the decision-maker in the position of the Tribunal:  Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 [67] per McHugh J. Her Honour found, correctly, that that was not open to the Court for he appellant to seek to obtain merits review of the Tribunal’s decision as to whether he had made out his claim or not.

11. The second ground that the appellant raised before his Honour was effectively an attempt to challenge the Tribunal’s credibility-based findings, and its explanations for those findings.  I agree with her Honour’s reasons for rejecting that ground that it was simply seeking merits review.

12. The third ground alleged that the appellant did not understand the procedure put to him under s 424AA of the Act, and had no idea about what was alleged to be a significant discrepancy in the evidence. As her Honour found, correctly in my opinion, a fair reading of the Tribunal’s decision record did not support that contention. But, in any event, the issue to which it related concerned what I referred to in [7] above. That was a matter that the Tribunal stated it did not use or weigh against the appellant because of the quality and difficulties of the translation at the interview with the delegate. Her Honour dealt with this issue in her reasons entirely appropriately.

13. The fourth ground before her Honour was that the Tribunal had made a procedural mistake, again challenging its use of s 424AA, and asserting, in effect, that the Tribunal should have given the appellant written particulars under s 424A, rather than adopt the process of giving oral particulars under s 424AA. The ground also complained about the Tribunal’s findings that he had fabricated his claims. In my opinion, her Honour correctly rejected that ground on the basis that it was simply attempting to challenge credibility-based findings, as opposed to demonstrating a jurisdictional error by the Tribunal.

14. Her Honour concluded, again in my opinion correctly, that a fair reading of the Tribunal’s decision record made clear that it understood the appellant’s claims, had explored them with him at a hearing, and had regard to all the material provided in support.  It put to the appellant the matters of concern it had with his evidence, and noted his responses, as well as putting to the appellant independent country information, before inviting him to comment on that.  Her Honour held that the Tribunal had made findings based on the evidence and material before it that were open on that evidence and material for the reasons that it gave, and that it reached its conclusion based on findings to which it applied the law correctly.

    The nature of this appeal

15. The appellant made oral and written submissions before me in support of his appeal.  He raised three broad grounds of appeal from her Honour’s decision namely:

    (1)not considering that the Tribunal had an obligation “to make it clear that the protection applicant could understand its decision under Pt 7 of the Migration Act 1958”.  In essence, this claim was that the Tribunal did not provide the appellant with sufficient details to satisfy him, and that the Tribunal was not experienced enough to understand its obligations under the Act to conduct a review, and that her Honour should not have found that the Tribunal’s findings were open to it, inter alia, on the basis of adverse credibility findings; 

    (2)not finding that the Tribunal made procedural mistakes, including that the Tribunal had not obtained information (that the appellant left unspecified) from the Department after he had sought that from the Tribunal (again) he did not understand why his application had been rejected by the Tribunal, it had not given him enough time, it did not understand the difficulties he had in proving his claims because they related to his involvement with the Pakistani security services, when, of their very nature, it would be difficult to substantiate that involvement;

    (3)not considering whether the Tribunal had followed the process mandated in Pt 7 of the Act because it had not sufficiently explained its concerns about his evidence to him or make clear why the application was rejected and failed, allegedly, to comply with ss 424A or 424AA of the Act.

    Consideration

16. In essence, the grounds of appeal are challenges to the factual findings of the Tribunal, and do not raise any discernible claim of jurisdictional error for which the Court would have jurisdiction to grant relief. 

17. The first ground of appeal conflated a number of complaints. So far as it asserted that the Tribunal had some obligation under Pt 7 of the Act to make matters clear to the appellant, the Tribunal’s decision record and its reasons, demonstrate, as her Honour found, that the Tribunal carried out its functions in accordance with Pt 7 of the Act in a way that does not attract any discernible basis to suggest that it made a jurisdictional error. The Tribunal had no obligation to provide details to an applicant for review that “satisfy” the applicant. The Tribunal’s role was to assess an applicant’s claim for a protection visa based on the material he provided in support of that claim, including the evidence and documents he put before the Tribunal at the hearing, and the responses he or she gave to questions or requests, including those made under ss 424AA or 424A, for the applicant to provide the Tribunal with information.

18. In my opinion, it is clear from the Tribunal’s decision record that it afforded the appellant all the opportunities that the Act required he be given to comment on matters which the Tribunal considered might be information that could be the reason, or part of the reason, for rejecting his application, and received the appellant’s comments on those matters before arriving at a decision that was open to it on the evidence.  The Tribunal was not obliged to engage in a running commentary of its thinking processes in order to identify to an applicant how it was assessing or might assess at some future time his evidence:   SZBEL v Minister for Immigration (2006) 228 CLR 152 at 166 [48] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. I reject the first ground of appeal.

19. The second ground of appeal asserted, in substance, that the Tribunal did not give the appellant enough time to make out his case and that it failed to appreciate how difficult it was for him to prove connections with the intelligence agencies in Pakistan.  Both of those matters go to merits review of the Tribunal’s decision making process.  Nonetheless, it seems to me that the Tribunal was entitled to do what it did in relation to assessing the appellant’s claims about his relationship with the intelligence agencies.  He had asserted, in effect, that the intelligence agencies asked him to do work on what could be termed classified government materials.  The Tribunal explored with the appellant the issue of why uniformed officers of the Pakistan military would transport sensitive film of military equipment 60 or 70 kilometres by jeep to his shop in downtown Rawalpindi for development because those services lacked the ability themselves to do this.  It noted that such an endeavour was resource intensive, and if the images had really contained sensitive material, such trips were potentially risky for the personnel concerned.  It found the appellant’s evidence concerning the measures that the Pakistani authorities might have taken in relation to protecting the security of those materials and obtaining personal security clearances for the appellant was uncertain, causing it to doubt that he was speaking from personal experience of conducting such tasks.  The way in which the Tribunal approached and assessed credibility of the appellant’s evidence was a matter for it.  In essence, ground two cavilled with that process, but revealed no jurisdictional error or even arguable error in it.  I reject ground two. 

20. The third ground, in substance, repeated the first two grounds.  It once again it sought to engage in merits review of the Tribunal’s decision, but did not identify any error that the Tribunal made in failing to follow some procedure that the law required it to follow in arriving at its decision.

    Other matters

21. In his written submission which the appellant handed up today, he contended that her Honour had not considered his complaint about confusion concerning the application, and that he had informed that the Tribunal that the interpreter made a few wrong comments about his claim that the Court below did not consider it.  The submission stated that he had raised confusions in the interpretation with the interviewer at the interview and that the Tribunal was not clear about the interpreting process, but it punished the appellant.  The Minister argued that this was an allegation concerning the quality of interpretation before the Tribunal.

1. But, I think fairly read, it is a complaint about the matter on which the Tribunal gave the appellant particulars s 424AA that I have set out in [7] above based on the interpretation difficulties in the interview with the delegate. However, the Tribunal did not use that material to arrive at an adverse credibility finding because it accepted that there were substantive difficulties with the interpretation on that occasion. I am not satisfied that there is any substance in this further argument, even if I had been minded to allow it to be raised. Her Honour also dealt with this in her reasons, correctly, as I have explained above.

2. The appellant also submitted that:

   “The tribunal raised concerns in many occasions, but the tribunal does not have the power to raise any concern about any claim for protection.  The Migration Act does not allow to raise any concern, and the court did not consider it.”

3. In essence, this encapsulates his complaint that the Tribunal had decided his claims on the basis of not believing his evidence.  However, the Tribunal had power, and indeed the obligation, to assess whether or not the appellant had satisfied it that he was entitled to a protection visa.  The appellant carried the onus of satisfying the Tribunal;  he did not.

   Conclusion

4. Having carefully reviewed for myself the Tribunal’s reasons and her Honour’s reasons, I am not able to identify any arguable basis on which the Tribunal can be said to have made any jurisdictional error.  Her Honour’s reasons were entirely correct for rejecting the application.  In my opinion the appeal must be dismissed.

5. The Minister has applied for costs fixed in the sum of $4,700. Schedule 3 of the Schedule of the Federal Court Rules 2011 (Cth) provides in item 15.1(d) that a party may claim $6,270, including costs and disbursements, in a short form bill in a migration appeal case finalised after a final hearing. The affidavit of Alissa Crittenden, sworn yesterday, identified that up to the time at which her affidavit was made, the first respondent had incurred $5,177.50 in solicitor-client professional costs in connection with the appeal, including the preparation of the appeal papers and the Minister’s submissions. Ms Crittenden estimated that a further $1,140 would be incurred, among other things, in attending today and at the handing down of a decision, including reviewing it. Since I have given these reasons ex tempore, I propose to reduce the amount claimed by $100.  I will order that the appellant pay the first respondent’s costs, fixed in the amount of $4,600.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:  Dated:  13 August 2013