SZSCM v Minister for Immigration and Citizenship (now Minister for Immigration and Border Protection)

[2013] FCA 1165

FEDERAL COURT OF AUSTRALIA

SZSCM v Minister for Immigration and Citizenship (now Minister for Immigration and Border Protection) [2013] FCA 1165

Citation:

SZSCM v Minister for Immigration and Citizenship (now Minister for Immigration and Border Protection) [2013] FCA 1165

Appeal from:

SZSCM & Anor v Minister for Immigration & Anor [2013] FCCA 697

Parties:

SZSCM and SZSCN v MINISTER FOR IMMIGRATION AND CITIZENSHIP (NOW MINISTER FOR IMMIGRATION AND BORDER PROTECTION) and REFUGEE REVIEW TRIBUNAL

File number:

QUD 440 of 2013

Judge:

LOGAN J

Date of judgment:

4 November 2013

Catchwords:

MIGRATION – appeal from decision of Federal Circuit Court affirming decision of the Refugee Review Tribunal (Tribunal) to uphold decision of delegate of the Minister for Immigration and Border Protection (as that department is now known) to refuse the grant of a Protection (Class XA) Visa – whether Tribunal’s decision illogical

Held: appeal dismissed

Legislation:

Migration Act 1958 (Cth)

Cases cited:

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 applied

Date of hearing:

4 November 2013

Place:

Brisbane

Division:

GENERAL DIVISION

Category:

Catchwords

Number of paragraphs:

15

Counsel for the First and Second Appellants:

The Second Appellant appeared in person on behalf of both Appellants

Counsel for the First Respondent:

Ms A Wheatley

Solicitor for the First Respondent:

Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 440 of 2013

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA (NOW THE FEDERAL CIRCUIT COURT OF AUSTRALIA)

BETWEEN:

SZSCM
First Appellant

SZSCN
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP (NOW MINISTER FOR IMMIGRATION AND BORDER PROTECTION)
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	4 NOVEMBER 2013
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellants are to pay the first respondent’s costs which are fixed in the amount of $6,270.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 440 of 2013

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA (NOW THE FEDERAL CIRCUIT COURT OF AUSTRALIA)

BETWEEN:

SZSCM
First Appellant

SZSCN
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP (NOW MINISTER FOR IMMIGRATION AND BORDER PROTECTION)
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	4 NOVEMBER 2013
WHERE MADE:	BRISBANE

THE COURT DIRECTS THAT:

1. The name of the first respondent (first respondent) be amended to the Minister for Immigration and Border Protection.

.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 440 of 2013

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA (NOW THE FEDERAL CIRCUIT COURT OF AUSTRALIA)

BETWEEN:

SZSCM
First Appellant

SZSCN
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP (NOW MINISTER FOR IMMIGRATION AND BORDER PROTECTION)
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LOGAN J
DATE:	4 NOVEMBER 2013
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. The appellants came to Australia in June 2007 on the basis of that class of visa under the Migration Act1958 (Cth) (Migration Act) known as a 457 Skilled Visa. On 20 December 2011, the appellants applied for a different class of visa, namely, a Protection (Class XA) Visa. The second appellant’s claim for that visa is derivative in the sense that she advances no separate basis for a claim for protection but rather is reliant upon the basis of the claim made by her husband, the first appellant. I shall mention shortly and in a summary way the basis for the protection visa claim made by him.

2. The second appellant appeared today both on her own behalf and on behalf of her husband.  She made submissions as to why the appeal should be allowed with the assistance of an interpreter.

3. The basis for the protection visa claim is summarised by the Refugee Review Tribunal at paragraph 24 of the Tribunal’s reasons.  In essence, the claim centres around the occupation which the first appellant claimed that he followed in China on and from January 1982.  He claimed to have worked in a bank, eventually rising to the position of a loans manager.  His claim was that the bank concerned was corrupt within, “corrupt” in the sense of advancing loans to developers who were in turn bribing provincial government officials.  The result of his trying to undertake his job within the bank honestly was, he said, initially threats and then arrest by police acting on the orders of bribed officials.  He had met his wife at the bank.  She came, so he said, to be dismissed by the bank because of the stance that he took.  Their daughter suffered discrimination at school.  He personally was detained, beaten and tortured, so he said, before being released.  Faced with that experience, he decided to seek to leave China with the result that he took the opportunity of claiming to be a chef so as to secure a 457 Visa.

4. This claim was not accepted by a delegate of the Minister of State then known as the Minister for Immigration, Multicultural Affairs and Citizenship. The title of the Minister responsible for the administration of the Migration Act has since been changed to the Minister for Immigration and Border Protection. The Minister is the active party respondent to the appeal. The title of the proceedings should be amended so as to record the change in the title of the minister administering the Migration Act.

5. On 18 May 2012, a delegate of the Minister refused the protection visa application. The following month and within the time permitted by the Migration Act, the appellants sought the review of the Minister’s delegate’s decision by the Tribunal. On 11 October 2012, the Tribunal decided, for reasons which were conveyed to the appellants under cover of a letter of 12 October 2012, to affirm the Minister’s delegate’s decision. The appellants then sought the judicial review of the Tribunal’s decision by what was then known as the Federal Magistrates Court; it is now the Federal Circuit Court. On 1 July 2013, that Court decided to dismiss the judicial review application.

6. Superficially, the grounds of appeal to this Court differ from the grounds of review, advanced before the Federal Circuit Court.  In this Court, the grounds of appeal are these:

   (1)      RRT has made an illogically conclusion based on no evidence [sic].

   (2)The FMC didn’t consider my case carefully.

The focus of a ground of appeal to this Court in a matter such as this should, of course, be upon whether there was, for reasons disclosed in the reasons for judgment of the Federal Circuit Court, an error of law in that Court making the orders under appeal.

1. The approach taken by the Minister was the commendably fair one of treating the grounds of appeal, at least ground 1, as if it were a ground directed to an error on the part of the Federal Circuit Judge in failing to conclude that the Tribunal’s decision was affected by the jurisdictional error of illogicality.  On closer analysis, and particularly with the benefit of the submissions so precisely made by the second appellant this morning, the illogicality ground in the notice of appeal is directed to the same end as ground 3 in the grounds of judicial review before the Federal Circuit Court, namely “RRT’s denial of the applicant’s evidence without conscience”.

2. It is an exceptional course to take to permit the advancing on an appeal of a basis upon which the Tribunal’s decision was not sought to be impeached or challenged before the Federal Circuit Court.  If it were necessary, I would be prepared to permit the advancing of the illogicality ground on appeal by way of a grant of leave.

3. I am not persuaded leave is necessary because, as I have stated, on closer analysis, I consider that in substance, that ground was always one sought to be advanced.  It is just that English not being the first language of either the first appellant or his wife, they have chosen to describe a very particular complaint which they have about the Tribunal’s decision as best they can, in ways that mean, I think, the same to them, although perhaps not to those for whom English is a first language.  In other words, I approached the determination of the appeal on the basis that illogicality was always a basis upon which they sought to challenge the Tribunal’s decision.  I shall return to illogicality as a ground of appeal on its merits shortly.

4. There is no merit at all in the other ground of appeal, insofar as it seeks to challenge the decision of the Court below on the basis of an absence of careful consideration.  The reasons for judgement of the Federal Circuit Judge disclose a very close and careful engagement by his Honour with the grounds of review before that Court.  I read the second ground as nothing more than an emphatic way by which the appellants assert that his Honour should have concluded that the Tribunal’s decision was illogical.

5. That illogicality may be a ground upon which an administrative decision may be challenged on the basis of jurisdictional error may be accepted, see: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS).  To describe an administrative decision as illogical can be as a matter of English expression, nothing more than “an emphatic way of expressing disagreement with it”:  SZMDS at paragraph 124 per Crennan J and Bell J and the authorities cited by their Honours at footnote 112. Equally and pertinently, to describe a decision as illogical in that sense does not establish jurisdictional error. A decision, the reasons for which one emphatically disagrees may be nothing more than one upon which “different minds might reach different conclusions” (SZMDS at paragraph 131) and not be a decision the result of which one does not accept. That is this case (SZMDS at paragraph 130):

   … an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person.

Only if an administrative decision is illogical in that sense will jurisdictional error be found.

1. Here, the Tribunal’s reasons disclose that the tardiness of the claim for a protection visa, the apparent issuing, if one accepted the appellant’s evidence, of a passport while in detention, the ease of leaving China nonetheless and the apparent supporting of the 457 visa claim by documentation verifying an occupation as a chef were all factors which were, as paragraph 55 of the Tribunal’s reasons records, influential in the Tribunal not accepting the basis put forward by the first appellant for a protection visa. 

2. That a person might camouflage their true occupation for the purpose of leaving a country where persecution was experienced is perfectly plausible.  However, as Heydon J observed in SZMDS at paragraph 86:

   For the Tribunal member to withhold belief from something which is “perfectly plausible”, but which she did not find to have been satisfactorily explained and which she found not to be probable, is not illogical.

That observation is exactly applicable, in my opinion, to this case.

1. It is to be recalled further that findings as to credibility are par excellence findings for the Tribunal to make.  There is nothing illogical or irrational about why the Tribunal chose not to accept the claim advanced for a protection visa.  To reach that conclusion is not to deny that the claim made was one which could be perfectly plausible, only to exercise the necessary discipline in respect of an appeal in a judicial review case, which is to leave to the Minister and those who review the Minister’s decisions in the Tribunal their role of making evaluative findings on factual issues.

2. For these reasons, there is no error disclosed in the dismissal of the judicial review application by the Federal Circuit Court.  The appeal to this Court must be dismissed.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Associate:

Dated:       11 November 2013