SZSMW v Minister for Immigration

[2013] FCCA 934

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSMW v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 934

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal – show cause hearing – no arguable case raised for relief sought – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 65, 414, 425, 425A, 426A, 441A, 441C, 441G, 476
Migration Regulations 1994 (Cth) r.4.35
Federal Circuit Court Rules 2001 (Cth), r.44.12

SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 228 CLR 152; [2006] HCA 63
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407

Applicant: SZSMW

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 68 of 2013

Judgment of: Judge Nicholls

Hearing date: 8 July 2013

Date of Last Submission: 8 July 2013

Delivered at: Sydney

Delivered on: 8 July 2013

REPRESENTATION

The Applicant: In person

Appearing for the Respondents: Ms R Jones

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The application made on 16 January 2013 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs set in the amount of $3,326.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 68 of 2013

SZSMW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. I have before me today an application made on 16 January 2013 pursuant to s.476 of the Migration Act 1958 (Cth) whereby the applicant seeks review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 20 December 2012, which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.

Background

1. In these proceedings the Minister has filed a bundle of relevant documents (Court Book – “CB”) and from that material the following is relevant.

2. The applicant is a citizen of Pakistan (CB 2). He arrived in Australia on 21 May 2009 with a student visa that was in force until 5 April 2010 ([20] at CB 96). He then applied for a further student visa in April 2010, which was refused on 21 October 2010 ([20] at CB 96). 

3. On 6 August 2012, nearly two years later, the applicant applied for a protection visa (CB 1 to CB 56, including attachments). In that application the applicant’s claims to protection in Australia were said to be that if he were to return to Pakistan he would be subjected to both serious, and significant, harm from “extremist religious groups” ([12] at CB 16 to CB 17).

4. In effect, he said he made statements which came to the attention of members of the Islamist party ([2] at CB 16). These statements were perceived adversely as expressing a critical opinion of Islam. 

5. In his statement, the applicant set out some factual assertions as to the circumstances in which these comments were made by him ([1] – [2] at CB 16). In particular, that this had occurred in 2004 while he was enrolled at an institute of information technology in Islamabad (“COMSATS”) ([1] at CB 16). As a result of these comments, the applicant claimed he was threatened and warned not to attend COMSATS ([4] at CB 16). The threats included that “the Koran required persons who speak against Islam to be killed” ([4] at CB 16). 

6. The applicant claimed that he then left his studies and began working with his uncle, during which time he claimed that he was still followed by these religious extremists ([6] – [7] at CB 16). Further, in 2007 he was threatened with a gun and told that he was “not a good Muslim” ([9] at CB 16). He complained to police, however “no action was taken” ([9] at CB 17). He therefore decided to leave Pakistan. He applied for a student visa for Australia and that visa was granted ([10] at CB 17).

The Delegate

1. The application for a protection visa was refused by the respondent Minister’s delegate (CB 58 to CB 70). The important elements in the delegate’s decision are as follows.

2. A period of time had elapsed since the applicant last voiced his critical opinions, which was in 2004 (CB 67.7). While the delegate appeared to be ambivalent as to whether the applicant was assaulted in 2004 and threatened in 2007, he found that this did not provide a basis upon which it could be concluded that there would be a real risk of the applicant suffering serious, or significant, harm (CB 69.7)

The Tribunal

1. The applicant applied to the Tribunal for review of the delegate’s decision. He was assisted by a migration agent from the Refugee Advice and Casework Service (CB 71 to CB 76). 

2. The applicant attended a hearing before the Tribunal, with his representative, on 26 October 2012 (CB 87). The only account before the Court of what occurred at that hearing is the account set out in the Tribunal’s decision record ([44] at CB 100 to [69] at CB 104).

3. A critical part of the Tribunal’s reasoning was that it had difficulty in accepting that the applicant was a witness of truth. Further, that he had given a truthful account of his circumstances in Pakistan and the reasons for the harm that he said that he feared ([100] at CB 107). 

4. The Tribunal considered that there were a number of elements that raised doubts as to the truth of the applicant’s factual account. That was based on the Tribunal’s analysis and assessment of the applicant’s claims and the answers that he gave to questions put to him at the hearing. 

5. The Tribunal doubted whether the applicant ever attended the COMSATS in Islamabad. The Tribunal noted that the applicant’s explanation in this regard was not credible ([101] – [102] at CB 108). 

6. The Tribunal also had concerns that the applicant had provided inconsistent evidence about his employment history in Pakistan. One particular inconsistency noted by the Tribunal was that, in his student visa application, the applicant had indicated that he had worked at his uncle’s company since 2002, whereas the evidence that he gave to the Tribunal was that he only began working with his uncle after the alleged incident at the COMSATS, which he said that occurred in 2004 ([102] at CB 108).

7. The Tribunal also found that the applicant’s delay in seeking protection after arriving in Australia (more than three years) was of concern ([103] at CB 108). Ultimately the Tribunal found that this was a significant delay which was inconsistent with the applicant’s claim to fear serious, or significant, harm if he were to return to Pakistan ([103] at CB 108). 

8. These matters, amongst others, led the Tribunal to form, on a cumulative basis, an adverse view as to the applicant’s credibility. Based on that view, the Tribunal, therefore, did not accept the applicant’s factual account as to what he said had relevantly occurred in Pakistan. That is, the Tribunal rejected the applicant’s entire factual account upon which he based his claim to protection ([105] at CB 109). 

9. I note that, in addition to the Refugees Convention, the Tribunal turned its mind to what is said to be the complementary protection provision (s.36(2)(aa)of the Act) and found that the applicant did not face a risk of significant harm in that regard ([107] at CB 109 to [111] at CB 110).

Application to the Court

1. The application to this Court was made on 16 January 2013. The orders sought in that application are:

   “ 1. The appeal be allowed with costs.

   2. The First respondent pay the costs.

   3. The application for Protection visa be remitted to the first respondent.”

2. The grounds of the application to the Court are expressed as followed:

   “1. The RRT committed Jurisdictional errors in failing to compels with migration Act.

   2. The RRT deprived me of Natural Justice.

   3. The decision does not relate to the subject matter of the legislation and the decision exceeds the limits set in the Commonwealth Constitution.”

Before the Court

1. The applicant appeared in person today and was assisted by an interpreter in the Urdu language. Ms R Jones appeared for the respondent Minister.

2. When this matter first came before the Court on 27 March 2013 I sought to explain to the applicant that the Court had no power to determine whether or not he was entitled to protection in Australia. The concern of the Court, by law, could only be whether the Tribunal had fallen into any “legal error” (jurisdictional error). 

3. I note that, at that time, I explained to the applicant that his grounds, as stated in the application to the Court, did not present any substantial, or indeed did not present any viable, assertion of “legal error” on the part of the Tribunal. Further, that if all he could say was that he did not agree with the Tribunal’s decision then his application would not be able to proceed to any hearing of substance. 

4. The applicant was referred to a lawyer on the panel of the Court’s “RRT Legal Advice Scheme”. Orders were also made on that day providing, amongst other things, an opportunity to the applicant to file any further material, including any amended application with proper grounds for review by this Court.

5. I note that since that time nothing has been filed by the applicant. All that the applicant could put to the Court today, in essence, was that if he were to go back to Pakistan his life would be threatened and that the Tribunal’s decision was “absolutely wrong”.

6. I confirmed with the applicant that he had received some advice from the panel lawyer, although the applicant at one point appeared to say that he had not received any advice from the lawyer. Nonetheless, whatever the situation, I note on the Court’s file a certificate by Mr J Gormley of counsel, who is on the panel of the Court’s “RRT Legal Advice Scheme”. He certifies that he met with the applicant on 26 April 2013 and provided written advice to him on that day. Mr Gormley often appears representing applicants in refugee and protection matters and is known to this Court.

7. In any event, what the Court is faced with today is that the applicant’s case is no better advanced than it was at the first Court date. The applicant was unable to press his application beyond an unhelpful level of general disagreement with the Tribunal’s decision. That is dealt with below.

8. The Minister’s representative pressed that the Court proceed to an immediate show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth). In light of the material before the Court, and indeed the absence of anything further from the applicant directed to the question of whether the Tribunal had fallen into “legal error”, particularly whether the Tribunal had fallen into jurisdictional error, it was appropriate that the Court proceed to an immediate show cause hearing.

9. The issue, therefore, for the Court today is whether the applicant has raised an arguable case for the relief that he seeks by his application to the Court.

10. While there appears to have been some great focus on the matter of the Minister paying his costs, there is little else in the relief that the applicant seeks in his application to the Court such as to say, with any certainty, that the applicant sought to obtain relief directed to the Tribunal’s decision.

11. In any event, I take the view that the relief that the applicant really seeks by his application to the Court is relief in returning the matter to the Tribunal for reconsideration according to law. That is, in essence, a writ in the nature of certiorari.

12. The difficulty for the applicant, however, is that he has not made any assertions of “legal error” such that it can be said that the application to the Court raises any arguable case.  

13. Ground one of the application asserts jurisdictional error because the Tribunal was said to have failed to comply with the Act. No particulars are provided, nor are any apparent.

14. From what is before the Court, the Tribunal embarked on the conduct of the review in the manner envisaged by the relevant part of the Act. That is, it proceeded to conduct the review pursuant to s.414 of the Act. The applicant was invited to attend a hearing before the Tribunal pursuant to s.425 of the Act. That invitation complied with all of the relevant statutory and regulatory requirements (s.425, s.425A, the reference to s.426A, s.441A(4), s.441C(4), s.441G of the Act and r.4.35D of the Migration Regulations 1994 (Cth)).

15. In the absence of any evidence to the contrary from the applicant (that is, for example, a transcript of the Tribunal hearing) the Tribunal’s unchallenged account (contained in its decision record) reveals that the issues determinative, or dispositive, of the review were exposed at the hearing. In particular, the inconsistencies in the applicant’s evidence as to his entire factual account of past events were plainly discussed, and he was given the opportunity to give his evidence in that regard (see, generally, SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 228 CLR 152; [2006] HCA 63).

16. The applicant claims in ground two that the Tribunal deprived him of natural justice. Before the Court, the applicant made a statement that he had not received a “fair” hearing before the Tribunal. 

17. It appears, from what the applicant said before the Court, that the hearing was “unfair” because the Tribunal did not accept what he gave in explanation for the seeming inconsistencies in his various accounts that were ultimately before the Tribunal. The applicant described the Tribunal’s decision as being “wrong”, and as being “wrong” on a number of factual bases.

18. It is the case that those assertions, on their own, do not raise an arguable case for the relief sought. As I tried to explain to the applicant, the Court is not in a position to say what findings the Tribunal should have made. The Tribunal made findings which were reasonably open to it on what was before it, and for which it gave reasons. In those circumstances, the Court cannot go beyond, or “behind”, those findings to substitute its own findings of fact for those of the Tribunal. That would be to impermissibly engage in merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).

19. The applicant also said to the Court that the Tribunal seemed to approach the hearing from a “negative point of view”. This may be some attempt to invoke an allegation of bias against the Tribunal, or even the apprehension of bias. However, in the circumstances, again, this does not rise to an arguable case for the relief sought. 

20. Allegations of bias, if that is what the applicant intended to do by his comment, are an extremely serious charge to make against an administrative decision maker. I took the opportunity to explain to the applicant that such allegations are not just mere assertions of “legal error”, but they are allegations that strikes at the integrity of the decision maker. For that reason, at least, such allegations must be “distinctly made and clearly proven”. This requires evidence.

21. A mere assumption by the applicant of the Tribunal’s “negative point of view”, on its own, is not sufficient to say that an arguable case has been raised for the relief that he seeks (Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J, see also SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 at [43] per Tamberlin, Mansfield and Jacobson JJ, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425). In any event, it is a rare that such an allegation can be made out with reference to the Tribunal’s decision record alone (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [67] per von Doussa J).

22. The third ground of the application, in the circumstances of the case, with great respect to the applicant and I say this in a descriptive sense, can only really be seen as a “nonsense”.

23. The decision of the Tribunal plainly related to the subject matter of the legislation. That is, the applicant sought a protection visa. He made an application for a protection visa thus invoking ss.65 and 36(2) of the Act. Ultimately, he sought review by the Tribunal, and as I have already stated, the Tribunal engaged in that review as it was required by the Act to do.

24. The conduct of the review, the Tribunal’s reasoning, its findings, and its ultimate conclusion were all plainly related, and directed, to the relevant matters set out in the Act. How the “decision exceeds the limits set in the Commonwealth Constitution” was never explained by the applicant. Ground three does not raise any arguable case for the relief that I am assuming the applicant seeks.

25. I should note that the thrust of the applicant’s comments before the Court today, in essence, really seek to challenge the Tribunal’s adverse finding as to his credibility. As I said to the applicant earlier, any such challenge in the circumstances that are presented in this case and without anything further from him, cannot succeed in revealing “legal error”. As McHugh J said in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407, findings by an administrative decision maker, including findings on credibility, are for the decision maker “par excellence” in the exercise of the jurisdiction given to the decision maker.

Conclusion

1. In all, it is quite clear the applicant was given the opportunity of presenting his claims to protection to the Tribunal. The Tribunal simply did not believe him. It gave him the opportunity to explain his case, to explain inconsistencies and to address concerns that it had with his evidence. The fact that the Tribunal did not believe the applicant, on its own, is not a matter that this Court can intervene to change, or to substitute a more favourable outcome for the applicant.

2. The applicant has failed today, despite opportunity provided to him over a reasonable period of time and with the benefit of access to legal advice, to raise any arguable case for the relief he seeks. It is appropriate that his application be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). I will make an order to that effect.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  25 July 2013