FEDERAL COURT OF AUSTRALIA
SZTEX v Minister for Immigration and Border Protection [2014] FCA 1269
Citation: SZTEX v Minister for Immigration and Border Protection [2014] FCA 1269 Appeal from: SZTEX v Minister for Immigration & Anor [2014] FCCA 1881 Parties: SZTEX v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: NSD 859 of 2014 Judge: FLICK J Date of judgment: 25 November 2014 Catchwords: ADMINISTRATIVE LAW – jurisdictional error – evidence – determination of weight of evidence by decision-maker – adverse findings as to credit
PRACTICE AND PROCEDURE – appeals – jurisdiction of Federal Court – no grounds of appeal identifying error of Federal Circuit Court Judge – an appeal is not the occasion to review the reasons of the Refugee Review Tribunal
ADMINISTRATIVE LAW – procedural fairness – difficulty of discerning procedural unfairness from reasons of the Refugee Review Tribunal
Legislation: Migration Act 1958 (Cth) s 36
Federal Court Rules 2011 (Cth) r 40.02Cases cited: Abebe v Commonwealth [1999] HCA 14, (1999) 197 CLR 510, applied
Chand v Minister for Immigration and Ethnic Affairs (unreported, Full Court of the Federal Court of Australia, 7 November 1997), applied
Hamod v New South Wales [2011] NSWCA 375, cited
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802, (2001) 194 ALR 244, cited
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24, applied
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, cited
NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134, (2005) 147 FCR 51, cited
NBDY v Minister for Immigration & Multicultural Affairs [2006] FCAFC 145, cited
Sathiyanathan v Minister for Immigration & Multicultural Affairs [2000] FCA 210, applied
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668, followed
SGJB v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1601, followed
SZLZM v Minister for Immigration & Citizenship [2008] FCA 1263, cited
SZMSZ v Minister for Immigration and Citizenship [2009] FCA 877, cited
SZMUF v Minister for Immigration and Citizenship [2009] FCA 182, cited
SZORL v Minister for Immigration and Citizenship [2011] FCA 553, followed
SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146, (2013) 216 FCR 445 cited
SZTEX v Minister for Immigration & Anor [2014] FCCA 1881, affirmed
Tickner v Chapman (1995) 57 FCR 451, consideredDate of hearing: 13 November 2014 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 34 Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Mr M Wiese of Clayton Utz Counsel for the Second Respondent: The Second Respondent submitted save as to costs
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 859 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZTEX
AppellantAND: MINISTER FOR…
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Details
- Case
- [2014] FCA 1269
- Decision Date
CaseChat Overview and Summary
In the matter of SZTEX v Minister for Immigration, the Federal Court was tasked with reviewing the decision of the Federal Circuit Court, which had dismissed the appellant's appeal against a decision of the Refugee Review Tribunal. The appellant, SZTEX, sought to challenge the Tribunal's determination that she was not a credible witness and, consequently, not entitled to refugee status. The primary issues for the Federal Court were whether the Federal Circuit Court had erred in its review of the Tribunal's decision and whether the Tribunal had correctly assessed the credibility of the appellant's claims.
The court found that the Federal Circuit Court had correctly evaluated the evidence and the reasons provided by the Tribunal. It was established that the weight to be given to evidence is generally a matter for the decision-maker, not the reviewing court. The Tribunal had adequately explained its findings regarding the appellant's credibility, which included the conclusion that she had fabricated her claims. The court held that there was no basis to interfere with the Tribunal's assessment of the evidence or its conclusions about the appellant's credibility.
Given that neither ground of appeal identified any error by the Federal Circuit Court, the Federal Court dismissed the appeal. The court also ordered the appellant to pay the respondent's costs in the sum of $2,665, in accordance with the Federal Court Rules. The decision underscores the principle that courts are cautious about overturning findings of fact made by administrative tribunals unless there is a clear error in the application of the law or the decision-making process.
The court found that the Federal Circuit Court had correctly evaluated the evidence and the reasons provided by the Tribunal. It was established that the weight to be given to evidence is generally a matter for the decision-maker, not the reviewing court. The Tribunal had adequately explained its findings regarding the appellant's credibility, which included the conclusion that she had fabricated her claims. The court held that there was no basis to interfere with the Tribunal's assessment of the evidence or its conclusions about the appellant's credibility.
Given that neither ground of appeal identified any error by the Federal Circuit Court, the Federal Court dismissed the appeal. The court also ordered the appellant to pay the respondent's costs in the sum of $2,665, in accordance with the Federal Court Rules. The decision underscores the principle that courts are cautious about overturning findings of fact made by administrative tribunals unless there is a clear error in the application of the law or the decision-making process.
Orders
Orders of the court
1. The appeal is dismissed.
2. The Appellant is to pay the costs of the First Respondent fixed in the lump sum of $2,665.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
But no application was made by the Respondent Minister seeking an order that the appeal be summarily dismissed. The course pursued by the Minister was to place to one side the Rules of this Court in respect to appeals and to focus attention upon whether the Federal Circuit Court Judge was correct in his review of the Tribunal’s reasons.The lack of substantive evidence? The first ground of appeal seems to have two elements to it – namely, a contention that the Tribunal doubted the claims being advanced “without substantive evidence”; and a contention that the Tribunal erred in concluding that the Appellant was not persecuted because she could not produce a “detention certificate”. It is, with respect, unclear what is meant to be conveyed by the suggestion that the Tribunal doubted the Appellant’s claim “without substantive evidence”. The Tribunal’s reasons and its findings of fact provide no greater insight as to the potential content of the argument sought to be raised. Those reasons and findings record the conclusion of the Tribunal that the Appellant was “not a truthful witness and that she ha[d] fabricated her claims to Australia’s protection”. The Tribunal also recorded its finding that she had “fabricated her claim to have been arrested” and that her evidence as to a “detention certificate” was “false and was intended solely to strengthen her protection claims”. The Tribunal concluded that the claims had been fabricated “to extend her stay in Australia and for no other reason”. The Tribunal’s reasons thereafter set forth the basis upon which the adverse credibility findings were founded. Those included her ability to obtain a passport in her own name, her ability to depart China on that passport without difficulty and a police certificate indicating that she had no record of committing any criminal offence. There was “no evidence”, according to the Tribunal, that “she obtained her passport through ‘connections’ and the payment of money”. The Tribunal’s conclusions that it could not be satisfied that the Appellant’s claims were “true” and that, accordingly, it also could not be satisfied that she would face harm if she returned to China, were conclusions open to it on the evidence and the findings of fact it made. There is no reason to question the Tribunal’s findings regarding the Appellant’s credibility. To the extent that the first ground of appeal seeks to challenge to the weight given by the Tribunal to the evidence before it, the allegation is rejected. In the absence of any statutory indication, the “weight to be given to various considerations”, it has been long accepted, “… is generally for the decision-maker and not the court to determine …”: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 41 per Mason J. Similarly, in Abebe v Commonwealth [1999] HCA 14, (1999) 197 CLR 510. Gummow and Hayne JJ observed at [197]:… In the end, the criticisms made by the applicant of the Tribunal’s reasoning are criticisms of the factual findings it made and are criticisms that fasten upon the weight that the Tribunal attributed to various pieces of information that it had available for consideration. But what weight the Tribunal gave to those various pieces of information was for it to say.Further, in Chand v Minister for Immigration and Ethnic Affairs (unreported, Full Court of the Federal Court of Australia, 7 November 1997) von Doussa, Moore and Sackville JJ observed:The [Refugee Review Tribunal] is required to evaluate all the evidence put before it by an applicant for refugee status. Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The [Tribunal] is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another …See also: SZMUF v Minister for Immigration and Citizenship [2009] FCA 182 at [14] per Flick J.
Decision
Reasons for decision
The second ground of appeal is without substance. It is to be rejected. CONCLUSIONS Neither ground of appeal has been made out. The appeal is to be dismissed. There is no reason why the Appellant should not pay the costs of the Respondent Minister. The Minister’s representative sought an order that the Appellant pay the Minister’s costs in the “lump sum” of $2,665 pursuant to r 40.02(b) of the Federal Court Rules2011 (Cth). It is appropriate to make such an order.THE ORDERS OF THE COURT ARE:1.The appeal is dismissed.2.The Appellant is to pay the costs of the First Respondent fixed in the lump sum of $2,665.
Ratio Decidendi
Legal Principle Established
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