SZSDE v Minister for Immigration, Multicultural Affairs and Citizenship
[2013] FCA 1339
•13 November 2013
FEDERAL COURT OF AUSTRALIA
SZSDE v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 1339
Citation: SZSDE v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 1339 Appeal from: SZSDE v Minister for Immigration & Anor [2013] FCCA 996 Parties: SZSDE v MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 1717 of 2013 Judge: RANGIAH J Date of judgment: 13 November 2013 Catchwords: MIGRATION – appeal from Federal Circuit Court – appellant applied for a Protection (Class XA) visa – whether jurisdictional error by Refugee Review Tribunal – whether appealable error by Federal Circuit Court Legislation: Migration Act 1958 (Cth) Date of hearing: 13 November 2013 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 21 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: Mr T Reilly Solicitor for the Second Respondent: DLA Piper
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1717 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZSDE
AppellantAND: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
RANGIAH J
DATE OF ORDER:
13 NOVEMBER 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs to be assessed if not agreed.
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 1717 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZSDE
AppellantAND: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
RANGIAH J
DATE:
13 NOVEMBER 2013
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The appellant appeals from a judgment of the Federal Circuit Court of Australia dismissing his application for constitutional writs in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 9 October 2012.
The appellant is a citizen of Pakistan, who arrived in Australia on 22 September 2010 as the holder of a Subclass 676 Visitor visa which expired on 19 October 2010. On 17 December 2010 the appellant applied for a protection visa. On 9 December 2011, a delegate of the first respondent refused the appellant’s application.
The appellant claimed to have been involved for a number of years in peace activism in Pakistan and collecting information about intelligence service involvement in militant training, and passing this information on to Indian security agencies. He also claimed to have been the founder of an activist organisation named the World Commission for Peace and Human Rights Council (“WCPHRC”), which had been involved in disseminating information adverse to the interests of militant and jihadist groups within Pakistan and Pakistani intelligence services.
The appellant claimed that he was threatened, detained, interrogated and tortured, and that his office was ransacked. The appellant claimed that after a member of the WCPHRC disappeared, he departed Pakistan to Nepal, Singapore, and then Malaysia, where he lived and worked for approximately eight years, before arriving in Australia. The appellant claimed to fear persecution from government security authorities and militant groups operating in Pakistan due to his political activism.
The Tribunal stated that the appellant had entered Australia on two previous occasions, once during November 2009, and the other between May and August 2010, but had not then applied for a protection visa. It had regard to the appellant’s return to Pakistan in late 2010. It found that these actions were inconsistent with a genuine fear of persecution. The Tribunal also found much of the appellant’s evidence about his past activities was inconsistent and unconvincing and it found that the documentary evidence he had provided was unreliable, inconsistent and contradictory. The Tribunal concluded that the appellant was not a truthful witness.
The Tribunal did not accept that the appellant’s claimed health and psychological problems explained the difficulties in his evidence. It found that he had made up his claims to try to create a basis for the grant of a protection visa.
For these reasons, the Tribunal did not accept that the appellant held a well-founded fear of persecution for any reason in Pakistan and decided that he did not meet the criteria for a Protection (Class XA) visa. It affirmed the decision of the delegate to refuse the grant of the visa.
In the Federal Circuit Court the appellant advanced the following grounds:
1. The tribunal constructively failed to exercise its jurisdiction;
Particulars:
The applicant provided documents to the Tribunal to corroborate his claims. The tribunal failed to engage in an active intellectual process [sic] of these documents. The Tribunal ultimately gave the documents no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the documents without engaging to [sic] the contents of these documents. It was an error for the Tribunal to assess the applicant’s credit without first assessing whether the substance of the documents corroborated his claims.2.The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act.
3.The Tribunal has failed to investigate the applicant’s claim, especially the ground of persecution in Pakistan. Therefore, the Tribunal decision dated 10 October 2012 was effected by actual bias constituting judicial error.
As to the appellant’s first ground, the primary judge accepted the first respondent’s submission that the Tribunal’s decision record made it clear that the Tribunal had understood the appellant’s claims, and that it gave due consideration to the evidence. His Honour held that the Tribunal’s findings on credibility were open on the evidence before it.
As to the second ground, his Honour considered that it amounted to a claim that the appellant did meet the definition of “refugee” in the Refugees Convention, such that a protection visa should be granted. His Honour concluded that this amounted to an impermissible attempt at merits review of the Tribunal’s decision.
As to the third ground, his Honour accepted the respondent’s submission that the Tribunal has no obligation to conduct its own inquiries into the facts advanced by the appellant.
His Honour also rejected the submission that the Tribunal’s decision record disclosed failure on the part of the Tribunal to bring an impartial mind to the resolution of the appellant’s application. His Honour noted that the appellant had complained that he had sought certain letters that were provided to the department making allegations that the appellant had been untruthful, but had not been provided with them. The appellant contended that it was important for him to know every detail of those letters and the allegations against his credit. His Honour, however, accepted the first respondent’s submission that the Tribunal’s decision made it plain that it did not take into account the allegations made against the appellant in the letters, and gave them no weight.
His Honour went on to review the material to ascertain whether any other ground might be made out, but noted that the appellant had been unsuccessful because of the view the Tribunal took of the facts, in particular its finding that the appellant was not credible. His Honour was unable to discern any jurisdictional error.
By notice of appeal filed on 22 August 2013 in this Court, the appellant relied on the following grounds:
(1)The Judge failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicants claim, and ignoring the aspect of persecution and harm in terms of Sec 91R of the Act. The tribunal failed to observe the obligation amounted to a breach of statutory obligation.
(2)The Federal Circuit Court failed to consider that the Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.
At the hearing, the appellant did not advance any argument in support of the grounds articulated in the notice of appeal. In any event, there is no substance in those grounds.
As to the first ground, it was not a ground of appeal before the Federal Circuit Court that the Tribunal had acted in a manifestly unreasonable way. In any event, the Tribunal’s decision was based upon its adverse findings as to the appellant’s credit and those findings were open to it to make. The decision was not manifestly unreasonable.
As to the second ground, the Federal Circuit Court dealt with and rejected the appellant’s ground that the Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act 1958 (Cth). His Honour rejected that ground as an impermissible attempt at merits review of the Tribunal’s decision. There was no error in his Honour’s conclusion.
The appellant repeated his argument that the Tribunal ought to have given him copies of the letters making allegations that he was not telling the truth. He said that these were withheld from him, and he was not told of the specific allegations so that he could answer them. However, the Tribunal considered that those letters carried no weight. The Tribunal noted that the allegations were not able to be tested and it said that it did not believe that the purveyor of those allegations had genuine knowledge about the appellant’s circumstances. The Tribunal said that it, “has not considered them in reaching its conclusions about the applicant’s circumstances”.
The appellant said that he did not accept that the Tribunal could have discarded the allegations made against him altogether when making its decision. However, the Tribunal specifically said that it had not considered those allegations in reaching its conclusions, and said that it gave them no weight. There is simply no evidence to suggest that the Tribunal did something other than what it said it did.
An appeal from the Federal Circuit Court is an appeal by way of rehearing. It is necessary for an appellant to demonstrate error in the judgment of the Federal Circuit Court.
I am not satisfied that the appellant has demonstrated any such error. Accordingly, his appeal must be dismissed with costs.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate:
Dated: 9 December 2013
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