SZRZV v Minister for Immigration, Multicultural Affairs and Citizenship
[2013] FCA 848
•15 August 2013
FEDERAL COURT OF AUSTRALIA
SZRZV v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 848
Citation: SZRZV v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 848 Appeal from: SZRZV v Minister for Immigration & Anor [2013] FCCA 164 Parties: SZRZV v MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 930 of 2013 Judge: JACOBSON J Date of judgment: 15 August 2013 Catchwords: MIGRATION – appeal from decision of Federal Circuit Court – Refugee Review Tribunal – whether primary judge erred in considering “legal and factual errors” in the Tribunal decision – no error of law in reasons of Court below Legislation: Migration Act 1958 (Cth) Date of hearing: 15 August 2013 Date of last submissions: 15 August 2013 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 29 Counsel for the Appellant: The Appellant appeared in person Solicitor for the First Respondent: Mr White of Sparke Helmore Lawyers Counsel for the Second Respondent: Filed a Submitting Notice on 30 May 2013
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 930 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZRZV
Appellant
AND: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
JACOBSON J
DATE OF ORDER:
15 AUGUST 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The name of the first respondent in the notice of appeal filed 27 May 2013 be amended from “Minister for Immigration and Citizenship” to “Minister for Immigration, Multicultural Affairs and Citizenship”.
2.The appeal be dismissed.
3.The appellant pay the first respondent’s costs of the application
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 930 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZRZV
Appellant
AND: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
JACOBSON J
DATE:
15 AUGUST 2013
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
This is an appeal from orders made by Federal Circuit Court Judge Lloyd-Jones on 6 May 2013. His Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) made on 18 September 2012.
The Tribunal affirmed the decision of a delegate of the Minister dated 21 March 2012 refusing to grant the appellant a Protection (Class XA) visa.
The appellant is a citizen of Malaysia. The effect of his claim as conveniently set out at [7] of Judge Lloyd-Jones’ reasons for judgment is that he has a well-founded fear of persecution on the ground of his sexual orientation. That must, therefore, be taken to be a claim to protection on the ground of membership of a particular social group under the Convention Relating to the Status of Refugees (the Convention).
The appellant’s claim was refused by the Minister’s delegate on 21 March 2012. The delegate found that the appellant was not a witness of truth and was not satisfied that he was, as he claimed, a homosexual or that he had been in a homosexual relationship with the person referred to in Judge Lloyd-Jones’ reasons for judgment.
The Tribunal rejected the appellant’s application for review, primarily on the basis of credibility. The effect of the Tribunal’s decision is summarised in the Federal Circuit Court judge’s reasons for judgment and I need not repeat what appears in the reasons.
There was a second ground upon which the appellant claimed to fear persecution. This was that he owed money to a money lender in Malaysia. However, as the Federal Circuit Court judge observed at [41] of his reasons for judgment, the claim fell away on the appellant’s admission that he could arrange for colleagues to approach the money lender in order to repay the loan. In any event, that claim does not appear to have any basis as a claim to protection under the Convention.
THE COURT BELOW
The appellant raised three grounds of review in the Federal Circuit Court. The first ground was that he had been denied procedural fairness, in particular because the conclusions reached by the Tribunal were not obviously open and that he had not been given an opportunity to be heard in respect of those matters.
The second ground was that the Tribunal was said to have failed to ask whether the Malaysian authorities provided the requisite standard of protection for homosexual people comparable with international standards.
The third ground was that the Tribunal had failed to investigate the appellant’s claims, especially the ground of persecution in Malaysia. The third ground went on to assert that the Tribunal decision was affected by actual bias.
The Federal Circuit Court judge dismissed the application for review because he was satisfied that the submissions made on behalf of the Minister accurately responded to the claims made by the appellant. The submissions made by the Minister’s legal representative set out in full, commencing at [25] of the reasons, were that the claim of denial of procedural fairness is addressed by referring to well-established legal authority.
The substance of what was said was that the Tribunal’s findings were made upon the basis of its assessment of the appellant’s credibility and were within jurisdiction and open to the Tribunal.
The appellant was said to have been clearly on notice that the credibility of his claim was in issue because the delegate rejected his claim to be a homosexual as it did not find him to be a truthful witness.
It is well-established that the provisions of section 424A of the Migration Act 1958 (Cth) (the Act) do not require the Tribunal to put to an applicant its subjective appraisal or thought processes or determinations. This was the submission that the Federal Circuit Court judge accepted and it is referred to at [29] of his reasons.
The second ground of review, namely that the Tribunal failed to consider the question of effective state protection is addressed at [30] and [31] of the judgment. The submission, which the judge accepted, was that the Tribunal, having concluded that the appellant’s fear of harm was not well-founded, had no ensuing obligation to consider the question of effective state protection.
The third ground which sought to raise the failure to investigate the claims was also dismissed, having regard to the well-established authorities referred to at [33] of the reasons. So too, was the assertion of bias dismissed, having regard to authorities including High Court authority as mentioned at [34] of the reasons.
THE PRESENT APPEAL
The notice of appeal filed on 27 May 2013 raises two grounds of appeal.
The first is that the judge failed to consider that the Tribunal “acted in a manifestly unreasonable way” when dealing with the claim and “ignoring the aspect of persecution and harm in terms of section 91R of the Act.”
The second ground is that the judge dismissed the case, “without considering the legal and factual errors contained in the decision”.
The Minister submits that the grounds of appeal are formulaic and that they were not raised in the application before the Federal Circuit Court. The Minister’s legal representative also submits that it is not expedient in the interests of justice to grant the appellant leave to raise these grounds for the first time on appeal. There is very substantial force in that submission, however, the appellant appears in person and I am prepared to consider the matters which he seeks to raise.
The appellant has been assisted this morning by a Tamil interpreter. The appellant did not provide any written submissions, but when I asked him to address me this morning he stated that he has already explained the reasons why he cannot go back to Malaysia. He told me this morning that “my story is in the book” and he said that he has given all his particulars “in the book.” I take that to mean that his arguments are set out in the court record which comprises the appeal book.
I have carefully considered the matters which the appellant seeks to raise. The difficulty which arises is identified in Mr White’s submissions.
First, it seems to me that the assertion in ground 1, that the judge failed to consider the content and effect of s 91R of the Act cannot be sustained. It seems to me to be clear from paragraphs [8] to [12] of the Tribunal’s reasons for judgment, that the Tribunal understood the content and effect of the section.
It may be true that there is no further explanation in the Tribunal’s reasons for judgment as to that consideration, but I think it is clear from a reading of the Tribunal’s statement of decision and reasons, that it properly understood and applied the provisions of s 91R of the Act.
The legal and factual errors asserted in ground 2 are not identified. The judge below considered the grounds raised in the application for judicial review before the Federal Circuit Court and concluded that the grounds of review could not succeed.
His Honour’s reasons to which I have referred, comprehensively record the submissions made on behalf of the Minister and the Federal Circuit Court judge’s reasons for accepting those submissions. The submissions which the judge accepted were unexceptional and took into account well-settled authority on each of the grounds of review raised in the Federal Circuit Court.
It seems to me that the overall effect of what the appellant wishes to say is that taking into account the whole of his evidence, the Tribunal ought to have accepted his claim.
However, as I pointed out to the appellant at the commencement of the appeal, the functions and powers of the Court on appeal and of the Federal Circuit Court in an application such as the present are quite limited. In particular, the proceeding in the Federal Circuit Court was not a re-hearing of the merits of the decision of the Tribunal. Nor, of course, is the present appeal such a hearing.
The short answer to the matters which the appellant wishes to raise is that the decision of the Tribunal turned on questions of credibility. It is well-established that a reviewing body is not to set aside a finding simply because it thinks that the probabilities of the case may be different from those reached by the Tribunal.
CONCLUSION
For those reasons, I have come the view that the appeal must be dismissed. I will order that the appeal be dismissed with costs.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate:
Dated: 15 August 2013
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